United States v. Robert Vederoff
914 F.3d 1238
9th Cir.2019Background
- Vederoff pled guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)) and acknowledged prior Washington convictions for second-degree assault and second-degree murder.
- The PSR treated both Washington convictions as "crimes of violence," assigning a base offense level of 24 (U.S.S.G. § 2K2.1), yielding a Guidelines range of 77–96 months (after acceptance adjustment, PSR recommended 60 months).
- Vederoff objected, arguing neither Washington conviction qualified under U.S.S.G. § 4B1.2; he proposed a base level of 14 (Guidelines range ~30–37 months). The government urged both convictions were crimes of violence and sought a higher sentence.
- The district court concluded both convictions were crimes of violence, sentenced Vederoff to 60 months, and explained the sentence as either a downward or upward departure depending on the correct range.
- The Ninth Circuit reviewed de novo whether the state convictions qualify as "crimes of violence," applied the categorical/modified categorical approaches, and assessed harmlessness of the Guidelines error.
Issues
| Issue | Vederoff's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Washington second-degree assault is a "crime of violence" under U.S.S.G. § 4B1.2 | Assault 2 should not count; statute is broader than generic aggravated assault | Assault 2 qualifies (district court reasoned it was divisible and comparable) | Not a crime of violence; statute is indivisible and broader than generic aggravated assault |
| Whether Washington second-degree murder is a "crime of violence" under § 4B1.2 enumerated clause | Murder 2 is overbroad because its felony‑murder clause allows any felony as predicate | Murder 2 qualifies as generic murder or is divisible to permit coverage | Not a crime of violence under enumerated clause; statute is overbroad and indivisible |
| Whether Washington second-degree murder qualifies under force/elements clause | (Vederoff) It does not because statute permits negligent/accidental liability | (Gov't on appeal) It does qualify under force/elements clause | Not a crime of violence under force/elements clause; statute allows non‑intentional killings and is overbroad |
| Whether the sentencing error was harmless | Vederoff argued Guidelines miscalculation affected sentence and remand required | Government contended district court would have imposed same 60‑month sentence | Error not harmless; vacated and remanded for resentencing with correct Guidelines range kept in mind |
Key Cases Cited
- United States v. Robinson, 869 F.3d 933 (9th Cir. 2017) (categorical approach to whether Washington assault is a crime of violence)
- United States v. Munoz-Camarena, 631 F.3d 1028 (9th Cir. 2011) (Guidelines miscalculation requires remand unless harmless)
- Taylor v. United States, 495 U.S. 575 (1990) (articulating categorical approach)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (presume conviction rests on least culpable conduct)
- United States v. Marrero, 743 F.3d 389 (3d Cir. 2014) (definition of generic murder adopted by some circuits)
- United States v. Brown, 879 F.3d 1043 (9th Cir. 2018) (remand required when court used incorrect Guidelines starting point)
- United States v. Arriaga-Pinon, 852 F.3d 1195 (9th Cir. 2017) (explaining categorical/modified categorical frameworks)
- United States v. Gonzalez-Perez, 472 F.3d 1158 (9th Cir. 2007) (defining generic offenses by reference to broader authorities)
- United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015) (elements required for force/elements clause analysis)