FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAQWON SLADE,

Defendant-Appellant.

No. 16-30150

D.C. No.

2:15-cr-00353-MJP-1

OPINION

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted May 11, 2017

Seattle, Washington

Filed October 10, 2017

Before: M. Margaret McKeown, Carlos T. Bea,

and N. Randy Smith, Circuit Judges.

Opinion by Judge Bea
2 UNITED STATES V. SLADE

SUMMARY*

Criminal Law

The panel vacated a sentence for being a felon in 

possession of a firearm, and remanded for resentencing, in a 

case in which the district court treated the defendant’s prior 

conviction under Washington’s second-degree assault 

statute, Revised Code of Washington section 9A.36.021, as 

a “crime of violence” under the United States Sentencing 

Guidelines. 

The panel held that United States v. Jennen, 596 F.3d 

594 (9th Cir. 2010), in which this court affirmed a sentence 

when the district court had treated a prior conviction under 

section 9A.36.021(1)(c) as a crime of violence, has been 

effectively overruled by the Supreme Court’s decisions in 

Descamps v. United States, 133 S. Ct. 2276 (2013), and 

Mathis v. United States, 136 S. Ct. 2243 (2016). Applying 

United States v. Robinson, 869 F.3d 933 (9th Cir. 2017), the 

panel wrote that section 9A.36.021 criminalizes conduct that 

does not meet the generic federal definition of crime of 

violence and is not divisible. The panel concluded that the 

district court therefore erred in applying the modified 

categorical approach and in determining that the defendant’s 

prior conviction constituted a crime of violence, which 

caused the district court to miscalculate the defendant’s base 

offense level and Guidelines range.

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SLADE 3

COUNSEL

Vanessa Pai-Thompson (argued), Assistant Federal Public 

Defender, Federal Public Defender’s Office, Seattle, 

Washington, for Defendant-Appellant.

Michael Symington Morgan (argued), Assistant United 

States Attorney; Annette L. Hayes, United States Attorney; 

United States Attorney; United States Attorney’s Office,

Seattle, Washington; for Plaintiff-Appellee.

OPINION

BEA, Circuit Judge:

Raqwon Slade (“Slade”) appeals his sentence for being 

a felon in possession of a firearm. Slade’s sentence was 

enhanced because the district court treated his prior 

conviction under Washington’s second-degree assault 

statute, Revised Code of Washington section 9A.36.021 

(“section 9A.36.021”), as a “crime of violence” under the 

United States Sentencing Guidelines (“Guidelines”). State 

court documents from the prior conviction demonstrated that 

Slade had pleaded guilty to violating section 

9A.36.021(1)(c), assault with a deadly weapon. We reverse.

This case is controlled by our recent decision in United 

States v. Robinson, 869 F.3d 933 (9th Cir. 2017), in which 

we held that section 9A.36.021 is not a crime of violence 

under the Guidelines. 869 F.3d at 941. However, before we 

can apply Robinson, we must first conclude that United 

States v. Jennen, 596 F.3d 594 (9th Cir. 2010), in which we 

affirmed a sentence when the district court had treated the 

defendant’s prior conviction under section 9A.36.021(1)(c) 
4 UNITED STATES V. SLADE

as a crime of violence, id. at 601–02, has been effectively 

overruled by the Supreme Court’s subsequent decisions in 

Descamps v. United States, 133 S. Ct. 2276 (2013), and 

Mathis v. United States, 136 S. Ct. 2243 (2016).

I. Factual and Procedural Background

Slade had a seizure and was treated by firefighters. King 

County Sheriff’s deputies that were dispatched to assist the 

firefighters found a loaded pistol in Slade’s pocket. Slade, a 

convicted felon, was subsequently charged with being a 

felon in possession of a firearm in violation of 18 U.S.C. 

§ 922(g)(1). Slade pleaded guilty.

As noted above, Slade had previously been convicted 

under section 9A.36.021. Before sentencing, the 

Presentence Report (“PSR”) recommended that the prior 

conviction be treated as a crime of violence and that Slade 

be assigned a base offense level of 20 pursuant to section 

2K2.1(a)(4)(A) of the Guidelines.1 Section 2K2.1 defines a 

“crime of violence,” in relevant part, as “any offense . . . that 

. . . has as an element the use, attempted use, or threatened 

use of physical force against the person of another.” See 

Robinson, 869 F.3d at 937 (citing Application Note 1 to 

U.S.S.G. § 2K2.1). In this context, physical force means 

violent force, i.e., force that can cause physical pain or 

injury. Id.

Washington’s second-degree assault statute lists 

different methods of committing second-degree assault in 

 1 Guidelines section 2K2.1(a)(4)(A) provides for a base offense 

level of 20 if the defendant unlawfully possessed a firearm subsequent 

to sustaining a felony conviction for a crime of violence.
UNITED STATES V. SLADE 5

the seven subsections of section 9A.36.021(1). The PSR 

noted that, during Slade’s prior conviction, he pleaded guilty 

to violating section 9A.36.021(1)(c), assault with a deadly 

weapon.2 The PSR concluded this prior conviction was for 

a crime of violence.

Additionally, the PSR recommended a three-level 

downward adjustment for acceptance of responsibility. The 

PSR assigned three criminal history points for Slade’s prior 

conviction, which established a criminal history category of 

II. Based on a total offense level of 17 and a criminal history 

category of II, the PSR concluded that Slade’s Guidelines 

sentencing range was twenty-seven to thirty-three months’ 

imprisonment.

At sentencing, the district court applied the modified 

categorical approach3 and concluded that Slade’s prior 

conviction constituted a crime of violence. The court then 

sentenced Slade to twenty-four months’ imprisonment, 

followed by three years of supervised release.

Slade appeals his sentence. He contends that the district 

court erred by using the modified categorical approach and 

that his previous conviction does not constitute a crime of 

violence under the Guidelines.

 2 According to the judgment and the information in this case, during 

an argument that led to a physical fight, Slade produced a gun and shot 

a man.

3 Under the modified categorical approach, a sentencing court 

examines “a limited class of documents” from a defendant’s prior 

conviction to determine whether the defendant’s prior crime qualifies as 

a crime of violence under the Guidelines. Robinson, 869 F.3d at 936

(quoting United States v. Arriaga-Pinon, 852 F.3d 1195, 1199 (9th Cir. 

2017)).
6 UNITED STATES V. SLADE

II. Jurisdiction and Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 1291. We 

review de novo whether a state crime qualifies as a crime of 

violence under the Guidelines. United States v. Crews, 

621 F.3d 849, 851 (9th Cir. 2010).

III. Discussion

We apply the categorical approach described in the 

Supreme Court’s decisions in Taylor v. United States, 

495 U.S. 575 (1990), Descamps, and Mathis to decide 

whether a defendant’s prior conviction qualifies as a crime 

of violence under the Guidelines. See Robinson, 869 F.3d at 

936. First, we decide whether the elements of the prior crime 

match the elements of the generic federal definition of a 

crime of violence. Id. If the statute of conviction is 

overbroad and not a categorical match, we then ask whether 

the statute is divisible into separate crimes with unique 

elements. Id. If the statute is divisible, only then may a court 

use the modified categorical approach. Id.

On appeal, Slade contends that his prior conviction for 

second-degree assault does not constitute a crime of violence 

because section 9A.36.021 is categorically overbroad and 

not divisible. In response, the government contends that this 

case is controlled by Jennen.

A. United States v. Jennen has been effectively 

overruled.

Slade contends that Jennen is no longer good law in light 

of the Supreme Court’s subsequent decisions in Descamps 

and Mathis. We agree. “[W]here the reasoning or theory of 

our prior circuit authority is clearly irreconcilable with the 

reasoning or theory of intervening higher authority, a three-
UNITED STATES V. SLADE 7

judge panel should consider itself bound by the latter and 

controlling authority, and should reject the prior circuit 

opinion as having been effectively overruled.” Miller v. 

Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

In Jennen, the defendant was convicted of being a felon 

in possession of a firearm and ammunition. 596 F.3d at 596. 

Previously, the defendant had been convicted of section 

9A.36.021, in particular, section 9A.36.021(1)(c), assault 

with a deadly weapon. See id. at 600. At sentencing, the 

district court held that this prior conviction constituted a 

crime of violence under the Guidelines. Id. We affirmed the 

sentence imposed by the district court, and concluded that 

the defendant’s prior conviction for second-degree assault 

with a deadly weapon constituted a crime of violence. Id. at 

600–02.

In so doing, the Jennen court failed to consider whether 

section 9A.36.021 itself was divisible, no doubt because 

Descamps and Mathis had not yet clarified that particular 

analytical step. See Jennen, 596 F.3d at 600–02. As a result, 

the Jennen court implicitly assumed that section 9A.36.021 

was divisible into separate crimes based on the listed 

subsections in 9A.36.021(1). See id. at 601. The court then 

proceeded to apply the categorical overbreadth analysis to 

only a particular subsection of section 9A.36.021(1), section 

9A.36.021(1)(c). Id. at 601–02. If section 9A.36.021 were 

divisible (as defined in Descamps and Mathis), such an 

approach would be a proper application of the modified 

categorical approach. See Mathis, 136 S. Ct. at 2249. 

However, if the statute is not divisible, then it would be 

improper to apply the modified categorical approach to 

determine whether only one part of Washington’s seconddegree assault statute constitutes a crime of violence under 

the Guidelines. See id. at 2253–54.
8 UNITED STATES V. SLADE

Since Jennen failed to consider whether section 

9A.36.021 is divisible—and it is not, per Robinson—the 

decision’s reasoning is “clearly irreconcilable” with the 

analytical process prescribed by Descamps and Mathis. 

Gammie, 335 F.3d at 893. Therefore, we are bound by 

Descamps and Mathis rather than Jennen.

4 See id.

B. As we held in Robinson, section 9A.36.021 

does not constitute a crime of violence under 

the Guidelines.

In Robinson, at sentencing, the district court treated the 

defendant’s prior conviction under section 9A.36.021 as a 

crime of violence when the court applied Guidelines section 

2K2.1. 869 F.3d at 935–36. We reversed the sentence, 

holding that section 9A.36.021 is not a crime of violence 

under the Guidelines. Id. at 941. As Slade’s prior section 

9A.36.021 conviction was also considered a crime of 

violence at sentencing, we follow Robinson.

Following Mathis, we first must determine if some of the 

conduct criminalized by section 9A.36.021 does not 

constitute a crime of violence. Robinson, 869 F.3d at 936. 

As in Robinson, the government does not dispute that section 

9A.36.021 is categorically overbroad. We agreed and held 

 4 We reached an analogous conclusion in Robinson. In United States 

v. Lawrence, 627 F.3d 1281 (9th Cir. 2010), we held that section 

9A.36.021(1)(a), intentional assault in which the defendant recklessly 

inflicts substantial bodily harm, is categorically a “violent felony” under 

the Armed Career Criminal Act. Id. at 1288. We held in Robinson that 

Lawrence is no longer good law because Lawrence is “clearly 

irreconcilable” with the Supreme Court’s decisions in Descamps and 

Mathis since the Lawrence court failed to consider whether section 

9A.36.021 is divisible. See Robinson, 869 F.3d at 936–37 (citation 

omitted).
UNITED STATES V. SLADE 9

that “subsection (1)(e) criminalizes conduct that is not 

covered by section 2K2.1’s definition of ‘crime of 

violence.’” Id. at 938.

Next, we must determine whether section 9A.36.021 is 

divisible into separate crimes. See id. at 938–39. We held 

in Robinson that section 9A.36.021 is not divisible because, 

after reviewing decisions of the Washington Supreme Court 

and Washington pattern jury instructions, we concluded that 

“section 9A.36.021 defines a single crime—second-degree 

assault—and provides seven different ‘means’ by which a 

person can commit that crime.” Id. at 941.

Since section 9A.36.021 criminalizes conduct that does 

not meet the generic federal definition of a crime of violence 

and is not divisible, section 9A.36.021 is not a crime of 

violence for purposes of applying Guidelines section 2K2.1. 

Id. Therefore, the district court erred in sentencing Slade. 

This error caused the district court to miscalculate Slade’s 

base offense level and Guidelines range.5 “A mistake in 

calculating the recommended Guidelines range is a 

significant procedural error that requires us to remand for 

resentencing.” United States v. Lee, 821 F.3d 1124, 1226 

 5 As noted above, the district court calculated Slade’s base offense 

level as 20 because it applied Guidelines section 2K2.1(a)(4), subtracted 

three levels for acceptance of responsibility, which, combined with 

Slade’s criminal history category II, yielded a sentencing range of 

twenty-seven to thirty-three months. Since Slade’s prior conviction 

cannot be treated as a conviction for a crime of violence, Slade’s base 

offense level should have been fourteen. U.S.S.G. § 2K2.1(a)(6)(A). 

With a two-level reduction for acceptance of responsibility, U.S.S.G. 

§ 3E1.1, his Guidelines range would have been twelve-to-eighteen 

months’ imprisonment. U.S.S.G. ch. 5, pt. A.
10 UNITED STATES V. SLADE

(9th Cir. 2016) (quoting United States v. Munoz-Camarena, 

631 F.3d 1028, 1030 (9th Cir. 2011)).

IV. Conclusion

We VACATE Slade’s sentence and REMAND for 

resentencing.