United States v. Sid Willis, Jr.
795 F.3d 986
9th Cir.2015Background
- Willis, on federal supervised release for a prior cocaine-base conviction, pointed a gun at a victim, threatened to kill him, and was later arrested; he pleaded guilty to being a felon in possession of a firearm and admitted the conduct violated supervised release.
- At sentencing the district court found by a preponderance of the evidence that Willis’s conduct constituted Oregon unlawful use of a weapon (Or. Rev. Stat. § 166.220(1)(a)) and treated that conduct as a Grade A supervised-release violation, which carries a higher advisory Guidelines range.
- The district court sentenced Willis to 60 months for the supervised-release revocation (maximum under 18 U.S.C. § 3583(e)(3)); Willis did not object below and now challenges the Guidelines calculation on appeal for plain error.
- The legal question is whether, for supervised-release revocation, a district court must use the categorical approach (Taylor) to decide that the statutory offense the defendant’s uncharged conduct constituted is a "crime of violence" under U.S.S.G. § 4B1.2 and thus a Grade A violation under U.S.S.G. § 7B1.1(a)(1)(A)(i).
- The court concluded the Taylor categorical framework applies: the district court must (1) find by a preponderance that the defendant’s conduct constituted a federal, state, or local offense, (2) identify the statutory offense, (3) apply the categorical approach to decide whether that statutory offense is a categorical match to the federal generic "crime of violence," and if the statute is broader, (4) determine divisibility (Descamps) and, if divisible, specify which statutory alternative the defendant’s conduct constituted before assessing categorical match.
- Because Oregon § 166.220(1)(a) is divisible into (a) an attempt-to-use/unlawful-use offense and (b) a possession-with-intent-to-use offense, and the district court did not specify which alternative Willis’s conduct constituted (and the residual "otherwise involves" clause may be affected by Johnson), the Court vacated the supervised-release sentence and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district courts must use categorical approach when deciding if uncharged conduct constituting a statutory offense is a "crime of violence" for supervised-release revocation | Willis: court must not treat § 166.220(1)(a) categorically as a crime of violence; rather, must analyze statute under Taylor/Descamps | Government: district court may treat the statute as a categorical match (or argued § 922(g) conviction also sufficed, but waived) | Court: Taylor categorical approach applies; court must identify statutory offense, apply categorical test, consider divisibility under Descamps, and, if divisible, specify which alternative offense the conduct matched before concluding Grade A violation |
| Whether Oregon § 166.220(1)(a) is divisible into distinct offenses | Willis: statute should not be assumed categorical; requires divisibility analysis | Government: earlier Ninth Circuit cases (on § 166.220(1)(b)) suggest categorical match (but not raised below for (1)(a)) | Court: § 166.220(1)(a) is divisible into an "attempt/use" offense and a "possession-with-intent" offense; court must specify which offense was proved |
| Whether attempt-to-use alternative of § 166.220(1)(a) is a "crime of violence" | Willis: argued statute not categorically a crime of violence | Government: district court treated conduct as crime of violence | Court: attempt alternative has element of threatened/attempted use of force and qualifies under § 4B1.2(a)(1) |
| Whether possession-with-intent alternative of § 166.220(1)(a) is a "crime of violence" via Guidelines' residual clause | Willis: possession alternative may not be a crime of violence; residual clause’s validity uncertain after Johnson | Government: court assumed categorical crime of violence | Court: possession alternative lacks an element of use/attempted use/threatened use; would rely on the residual clause (§ 4B1.2(a)(2)), but Johnson casts doubt on that clause’s validity; remand required because district court did not specify which alternative was found |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (use of categorical approach to compare statute's elements to generic offense)
- Descamps v. United States, 133 S. Ct. 2276 (divisibility inquiry and limited use of Shepard records)
- Johnson v. United States, 576 U.S. 591 (invalidating ACCA residual-clause as unconstitutionally vague)
- Rodriguez-Castellon v. Holder, 733 F.3d 847 (discussing categorical approach in immigration/analogous contexts)
- United States v. Carter, 730 F.3d 187 (Third Circuit treatment of categorical approach in revocation context)
- Rendon v. Holder, 764 F.3d 1077 (divisibility analysis guidance)