United States v. Raqwon Slade
2017 U.S. App. LEXIS 19791
| 9th Cir. | 2017Background
- Raqwon Slade, a convicted felon, was found with a loaded pistol after an incident in which he produced a gun and shot a man; he pled guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
- Slade had a prior Washington conviction for second-degree assault under RCW § 9A.36.021(1)(c) (assault with a deadly weapon).
- The Presentence Report treated that prior conviction as a "crime of violence," applying U.S.S.G. § 2K2.1(a)(4)(A) and assigning a base offense level of 20, yielding a Guidelines range of 27–33 months (with adjustments).
- At sentencing the district court applied the modified categorical approach, found the prior Washington conviction a crime of violence, and sentenced Slade to 24 months’ imprisonment.
- On appeal the Ninth Circuit considered whether (1) prior Ninth Circuit precedent (Jennen) was displaced by intervening Supreme Court decisions (Descamps, Mathis), and (2) whether RCW § 9A.36.021 is a divisible statute that can be treated as a crime of violence under the Guidelines.
- The Ninth Circuit concluded Jennen was effectively overruled, followed United States v. Robinson, held RCW § 9A.36.021 is not a divisible statute and is not a crime of violence under the Guidelines, vacated the sentence, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jennen remains controlling after Descamps and Mathis | Jennen is no longer good law; Descamps/Mathis changed the divisibility analysis | Government argued Jennen controlled | Jennen was effectively overruled by Descamps/Mathis; panel follows higher authority |
| Whether RCW § 9A.36.021 is a "crime of violence" under U.S.S.G. § 2K2.1 | Slade: statute is categorically overbroad and not divisible; cannot be a crime of violence | Government: prior subsection conviction (1)(c) qualifies; modified categorical approach valid per Jennen | Court followed Robinson: statute not divisible, criminalizes non-violent means, so not a crime of violence |
| Whether use of the modified categorical approach was proper here | Slade: improper because statute is indivisible | Government: district court properly used modified categorical approach to focus on subsection | Modified categorical approach was improper because statute is not divisible; sentence miscalculated |
| Remedy for Guidelines miscalculation | Slade: vacate and remand for resentencing under correct Guidelines range | Government: affirmed sentencing | Court vacated sentence and remanded for resentencing with lower base offense level and range |
Key Cases Cited
- United States v. Robinson, 869 F.3d 933 (9th Cir. 2017) (held RCW § 9A.36.021 is not a crime of violence under the Guidelines)
- Jennen v. United States, 596 F.3d 594 (9th Cir. 2010) (prior Ninth Circuit decision treating RCW § 9A.36.021(1)(c) as a crime of violence; held here to be effectively overruled)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (clarified categorical vs. modified categorical approach and divisibility requirement)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (further defined when a statute is divisible and proper use of the modified categorical approach)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc) (panel must follow intervening higher authority when prior circuit precedent is irreconcilable)