United States v. Justin Werle, 877 F.3d 879

Defendant Justin Werle pled guilty to federal weapons offenses (18 U.S.C. § 922(g)(1) and 26 U.S.C. § 5861(d)) and was sentenced after a resentencing following an earlier remand.
At resentencing the district court applied a Guidelines enhancement under U.S.S.G. § 2K2.1(a) based on Werle’s prior Washington felony harassment convictions under Wash. Rev. Code § 9A.46.020(2)(b)(ii) (threatening to kill).
Werle challenged the enhancement, arguing his Washington felony harassment convictions are not categorically ‘‘crimes of violence’’ under U.S.S.G. § 4B1.2(a)(1).
The harassment statute generally is broader than the Guidelines definition, but the felony subsection for threatening to kill is a distinct, divisible offense and Werle conceded he was convicted under that subsection.
The Ninth Circuit considered whether the elements of felony threatening-to-kill necessarily include the ‘‘threatened use of physical force against the person of another’’ required by § 4B1.2(a)(1).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a conviction under Wash. Rev. Code § 9A.46.020(2)(b)(ii) is categorically a "crime of violence" under U.S.S.G. § 4B1.2(a)(1)	The government argued the statute’s elements (knowingly threatening to kill and causing reasonable fear) necessarily include a threatened use of physical force, so the conviction is a categorical crime of violence.	Werle argued the statute is overbroad because it (1) permits a lower mens rea for the reasonable-fear element, (2) covers distant/future threats, and (3) could encompass non-forceful means (e.g., poisoning).	The Ninth Circuit held the felony threatening-to-kill subsection is categorically a crime of violence under § 4B1.2(a)(1).

Taylor v. United States, 495 U.S. 575 (1990) (articulates categorical approach for prior-offense comparison)
Descamps v. United States, 570 U.S. 254 (2013) (distinguishes divisible statutes and authorizes the modified categorical approach)
Mathis v. United States, 579 U.S. 500 (2016) (clarifies divisible- vs. indivisible-statute analysis)
Leocal v. Ashcroft, 543 U.S. 1 (2004) (negligent conduct insufficient for a crime of violence)
Johnson v. United States, 559 U.S. 133 (2010) (discusses ‘‘violent force’’ concept relevant to defining crimes of violence)
Arellano Hernandez v. Lynch, 831 F.3d 1127 (9th Cir. 2016) (threat-to-kill statute is a categorical crime of violence under § 16(a))
Cornejo-Villagrana v. Sessions, 870 F.3d 1099 (9th Cir. 2017) (‘‘violent force’’ includes physical injury; threats can constitute threatened force)
Melchor-Meceno, 620 F.3d 1180 (9th Cir. 2010) (knowledge/general intent suffices for threatened-use-of-force analysis)
Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007) (stalking statute reaching distant threats was analyzed under § 16(b) and held not categorical)
United States v. De La Fuente, 353 F.3d 766 (9th Cir. 2003) (threats to injure can constitute threatened use of force)