FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTOPHER ROBERT 

LAWRENCE,

Defendant-Appellant.

No. 17-30061

D.C. No.

2:13-cr-00001-SEH-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KELLY DAVID ANKENY, SR.,

Defendant-Appellant.

No. 17-35138

D.C. Nos.

3:16-cv-01013-MO

3:04-cr-00005-MO-1

CERTIFICATION 

OF QUESTIONS OF 

LAW

Filed September 18, 2018
2 UNITED STATES V. LAWRENCE

Before: Kim McLane Wardlaw and John B. Owens, 

Circuit Judges, and Joan Lefkow,

* District Judge.

Order

SUMMARY**

Criminal Law/28 U.S.C. § 2255

In a direct criminal appeal and an appeal from the denial 

of a motion to vacate a sentence, the panel certified to the 

Oregon Supreme Court the following questions:

1. Is Oregon first-degree robbery, Or. Rev. 

Stat. § 164.415, divisible?

2. Is Oregon second-degree robbery, id.

§ 164.405, divisible?

3. Put another way, is jury unanimity (or 

concurrence) required as to a particular 

theory chosen from the listed subparagraphs 

of each statute?

 * The Honorable Joan H. Lefkow, United States District Judge for 

the Northern District of Illinois, sitting by designation.

** 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. LAWRENCE 3

COUNSEL

Michael Donahoe (argued), Deputy Federal Public 

Defender; Anthony R. Gallagher, Federal Defender; Federal 

Defenders of Montana, Helena, Montana; for DefendantAppellant Christopher Robert Lawrence.

Susan F. Wilk, Assistant Federal Public Defender, Portland, 

Oregon, for Defendant-Appellant Kelly David Ankeny, Sr.

Timothy Tatarka (argued) and Jared C. Cobell, Assistant 

United States Attorneys; Kurt G. Alme, United States 

Attorney; United States Attorney’s Office, Billings, 

Montana; Thomas H. Edmonds (argued), Assistant United 

States Attorney; Kelly A. Zusman, Appellate Chief; Billy J. 

Williams United States Attorney; United States Attorney’s 

Office, Portland, Oregon; for Plaintiff-Appellee United 

States.
4 UNITED STATES V. LAWRENCE

ORDER

The issue for decision in these consolidated cases is 

whether Oregon first-degree robbery (Or. Rev. Stat. 

§ 164.415) (Robbery I) and Oregon second-degree robbery 

(id. § 164.405) (Robbery II) are “divisible” for purposes of 

determining whether each is a “crime of violence” or 

“violent felony” under provisions of federal sentencing law.1

Resolution of the issue is determinative of the outcome in 

the pending cases before this court, and we cannot discern 

the answer to the question from the Oregon Supreme Court’s 

precedent. Accordingly, we respectfully request that the 

 1 Oregon statutes provide an incrementally graded set of standards 

for determining the seriousness of different forms of robbery. Thirddegree robbery (Robbery III) occurs “if in the course of committing or 

attempting to commit theft . . . [a] person uses or threatens the immediate 

use of physical force upon another person with the intent of: 

(a) Preventing or overcoming resistance to the taking of the property or 

to retention thereof immediately after the taking; or (b) [c]ompelling the 

owner of such property or another person to deliver the property or to 

engage in other conduct which might aid in the commission of the theft.” 

Or. Rev. Stat. § 164.395(1).

A person commits Robbery I if the person commits Robbery III and 

(a) is armed with a deadly weapon; (b) uses or attempts to use a 

dangerous weapon; or (c) causes or attempts to cause serious physical 

injury to any person. Id. § 164.415(1). A person commits Robbery II if 

the person commits Robbery III and (a) represents by word or conduct 

that the person is armed with what purports to be a dangerous or deadly 

weapon; or (b) is aided by another person actually present. Id. 

§ 164.405(1).

In United States v. Strickland, we held that Robbery III does not 

require “violent force” and is therefore not a “violent felony” under the 

Armed Career Criminal Act (ACCA). 860 F.3d 1224, 1227–28 (9th Cir. 

2017).
UNITED STATES V. LAWRENCE 5

Oregon Supreme Court determine whether, under Oregon 

law, §§ 164.415 and 164.405 are divisible under the United 

States Supreme Court doctrines discussed below.

I. Factual and Procedural Background

A. Christopher Robert Lawrence

Lawrence, pursuant to a plea agreement, pleaded guilty 

to a charge of being a felon in possession of a firearm, 

18 U.S.C. § 922(g)(1). The district court, applying United 

States Sentencing Guideline (U.S.S.G.) § 2K2.1(a)(4)(A),2

determined that a base offense level of 20 was appropriate 

because Lawrence had a prior conviction for Oregon 

Robbery I, which the court determined qualified as a “crime 

of violence” as defined by U.S.S.G. § 4B1.2(a).3 The court 

came to this determination by looking to § 4B1.2(a)(1) (the 

force clause) rather than analyzing the prior robbery 

conviction under § 4B1.2(a)(2) (the enumerated felonies 

clause). The court then adjusted the base level (for reasons 

not relevant here), concluding that Lawrence’s adjusted 

offense level was 19. With a level III criminal history 

 2 U.S.S.G. § 2K2.1(a)(4)(A) states that the base offense level is 20

if “the defendant committed any part of the instant offense subsequent to 

sustaining one felony conviction of either a crime of violence or a 

controlled substance offense.”

3 U.S.S.G. § 4B1.2(a) defines a crime of violence as “any offense 

under federal or state law, punishable by imprisonment for a term 

exceeding one year, that—(1) has as an element the use, attempted use, 

or threatened use of physical force against the person of another, [known 

as the force clause or the elements clause] or (2) is murder, voluntary 

manslaughter, kidnapping, aggravated assault, a forcible sex offense, 

robbery, arson, extortion, or the use or unlawful possession of a firearm 

described in 26 U.S.C. § 5845(a) or explosive material as defined in 

18 U.S.C. § 841(c) [known as the enumerated felonies clause].”
6 UNITED STATES V. LAWRENCE

category, the guidelines sentencing range was 37–46 months 

of imprisonment, and the district court sentenced Lawrence 

to 46 months in prison to be followed by three years of 

supervised release. This appeal followed.

The Robbery I conviction underlying the “crime of 

violence” finding arose from a multi-count information 

charging, based on a single incident, “robbery in the first 

degree with a firearm” (“used and threatened the use of a 

firearm”) and acting with a codefendant to commit “robbery 

in the first degree” (“armed with a deadly weapon, to wit: a 

handgun”). For sentencing, the court merged the two 

convictions to robbery in the first degree with a firearm.

B. Kelly David Ankeny

Ankeny was sentenced under the Armed Career Criminal 

Act (ACCA)4 to 188 months’ imprisonment on a felon-inpossession conviction and 120 months’ imprisonment for 

possession of an unregistered sawed-off shotgun count, to 

run concurrently.

Ankeny moved to vacate his sentence after the United 

States Supreme Court held in Johnson v. United States, 

135 S. Ct. 2551, 2563 (2015), that ACCA’s “residual clause” 

is unconstitutionally vague. The district court denied the 

motion, ruling that, even without the residual clause, 

 4 18 U.S.C. § 924(e) provides: “In the case of a person who violates 

section 922(g) of this title and has three previous convictions by any 

court . . . for a violent felony or a serious drug offense, or both, 

committed on occasions different from one another, such person shall be 

fined under this title and imprisoned not less than fifteen years.”
UNITED STATES V. LAWRENCE 7

Ankeny’s prior Robbery II conviction was a “violent felony” 

under ACCA’s “force clause.”5 This appeal followed.

II. Governing Federal Law

To determine whether a defendant’s prior conviction is a 

“violent felony” under ACCA’s force clause or a “crime of 

violence” under the U.S.S.G.’s force clause, we apply the 

“categorical approach” first outlined in Taylor v. United 

States, 495 U.S. 575 (1990), and later clarified in Descamps 

v. United States, 570 U.S. 254 (2013), and Mathis v. United 

States, 136 S. Ct. 2243 (2016). Under this approach, we first 

ask “whether the elements of the crime of conviction 

sufficiently match the elements of [the generic crime].” 

Mathis, 136 S. Ct. at 2248. In other words, we ask whether 

the elements of Oregon Robbery I (or II) match the elements 

of robbery in “the generic sense in which the term is now 

used in the criminal codes of most States.” Taylor, 495 U.S. 

at 598. In doing so, we look “only to the fact of conviction 

and the statutory definition of the prior offense,” not to the 

defendant’s actions underlying the conviction. United States 

v. Gomez-Hernandez, 680 F.3d 1171, 1174 (9th Cir. 2012) 

 5 ACCA defines a “violent felony” as “any crime punishable by 

imprisonment for a term exceeding one year, or any act of juvenile 

delinquency involving the use or carrying of a firearm, knife, or 

destructive device that would be punishable by imprisonment for such 

term if committed by an adult, that—(i) has as an element the use, 

attempted use, or threatened use of physical force against the person of 

another [known as the force clause or the elements clause]; or (ii) is 

burglary, arson, or extortion, involves use of explosives [known as the 

enumerated felonies clause], or otherwise involves conduct that presents 

a serious potential risk of physical injury to another [known as the 

residual clause].” 18 U.S.C. § 924(e)(2)(B).
8 UNITED STATES V. LAWRENCE

(quoting United States v. Espinoza-Cano, 456 F.3d 1126, 

1131 (9th Cir. 2006)).

If the statute punishes a broader range of conduct than 

the generic offense (is “overbroad”),6 and is “thus not a 

categorical match, we next ask whether the statute’s 

elements are also an indivisible set,” United States v. 

Arriaga-Pinon, 852 F.3d 1195, 1199 (9th Cir. 2017), or are 

divisible. “To be divisible, a state statute must contain 

‘multiple, alternative elements of functionally separate 

crimes.’” United States v. Dixon, 805 F.3d 1193, 1196 (9th 

Cir. 2015) (emphasis omitted) (quoting Rendon v. Holder,

764 F.3d 1077, 1085 (9th Cir. 2014)). A statute is not 

divisible simply because it is worded in the disjunctive; 

rather, we “must determine whether a disjunctively worded 

phrase supplies ‘alternative elements,’ which are essential to 

a jury’s finding of guilt, or ‘alternative means,’ which are 

not.” Id. at 1198. If a statute contains alternative elements (is 

divisible), a prosecutor “must generally select the relevant 

element from its list of alternatives. And the jury, as 

instructions in the case will make clear, must then find that 

element, unanimously and beyond a reasonable doubt.” Id.

(quoting Descamps, 133 S. Ct. at 2290).7 “But if a statute 

 6 For purposes of this analysis, we assume that Oregon’s Robbery I 

statute criminalizes conduct that is broader than that covered by the force 

clause, making the statute overbroad.

7 In Descamps, for example, where California burglary included 

entry into a building or an automobile, the Court explained, “In a typical 

case brought under the statute, the prosecutor charges one of those two 

alternatives, and the judge instructs the jury accordingly.” 570 U.S. at 

261–62. In contrast, in United States v. Cisneros, 826 F.3d 1190, 1195 

(9th Cir. 2016), we held that the Oregon burglary statute is indivisible in 

reference to the element of unlawful entry into a “building” because 

“[t]he text of the statute does not suggest that a trier of fact must specify 

which alternative applies for any given conviction.”
UNITED STATES V. LAWRENCE 9

contains only alternative means [(is indivisible)], a jury need 

not agree as to how the statute was violated, only that it was.”

Id. If “‘a state court decision definitively answers the 

question,’ or if ‘the statute on its face . . . resolve[s] the 

issue,’” our analysis ends. United States v. Martinez-Lopez, 

864 F.3d 1034, 1046 (9th Cir. 2017) (quoting Mathis, 136 S. 

Ct. at 2256).

Where the statute is indivisible, it is not possible to 

identify the crime of conviction, so the court cannot compare 

the crime of conviction to the generic offense, and the 

conviction cannot serve as an ACCA predicate. Descamps, 

570 U.S. at 264–65. If the statute is divisible, however, “then

the modified categorical approach applies and ‘a sentencing 

court looks to a limited class of documents . . . to determine 

what crime, with what elements, a defendant was convicted 

of.’” Arriaga-Pinon, 852 F.3d at 1199 (quoting Mathis, 

136 S. Ct. at 2249). If that crime falls within the generic 

federal definition, then the defendant’s conviction qualifies 

as a violent felony or a crime of violence. United States v. 

Robinson, 869 F.3d 933, 936 (9th Cir. 2017). “State cases 

that examine the outer contours of the conduct criminalized 

by the state statute are particularly important because we 

“must presume that the [offense] rest[s] upon nothing more 

than the least of the acts criminalized” and then determine 

whether even those acts are encompassed by the generic 

federal offense. United States v. Strickland, 860 F.3d 1224, 

1226–27 (9th Cir. 2017) (citation omitted).

This case turns on the second step of our analysis, 

namely whether §§ 164.415 and 164.405 are divisible and 

thereby susceptible to the modified categorical approach. 

We are not able to discern guidance from Oregon case law 

sufficient to resolve the issue.
10 UNITED STATES V. LAWRENCE

III. Parties’ Arguments

Lawrence argues that Robbery I is indivisible such that 

the modified categorical approach is not applicable, and, 

therefore, Robbery I is not a crime of violence. He relies on 

State v. Edwards, 281 P.3d 675 (Or. Ct. App. 2012), as 

establishing that Robbery I is indivisible.8 At issue in 

Edwards was whether the trial court erred by not merging 

four counts of Robbery I into two counts of Robbery I for 

sentencing purposes. Id. at 677. The court held that, where 

the defendant was convicted of third-degree robbery plus 

alternatives (a) and (c), he committed but one crime of firstdegree robbery, and the counts charging (a) and (c) 

separately should have been merged for sentencing.

In reaching its conclusion, the court relied on State v. 

White, 211 P.3d 248, 257 (Or. 2009), which held that a 

defendant who committed both enhancing elements of 

second-degree robbery in a single incident violated a single 

statutory provision for purposes of Oregon’s anti-merger 

statute, Or. Rev. Stat. § 161.067(1). In White, the court 

looked at whether the state legislature intended to define a 

single crime of second-degree robbery—a crime with two 

enhancing conditions—or two separate crimes for purposes 

of deciding whether to merge two guilty verdicts, one for 

each enhancing condition, and concluded that one was 

intended. 211 P.3d at 253–57.

The government, for its argument that the statute is 

divisible, relies on State v. Boots, 780 P.2d 725, 728–29 (Or. 

1989) and State v. Pipkin, 316 P.3d 255, 259 (Or. 2013). 

 8 Unlike the parties in Lawrence, the parties in Ankeny concede that 

Robbery II is divisible. The Ankeny parties offer no substantive 

discussion of whether Robbery II is divisible.
UNITED STATES V. LAWRENCE 11

Boots held that an instruction that did not require the jury to 

unanimously agree on one of two alternative elements (or 

both) of aggravated murder was contrary to the unanimous 

verdict requirement of Oregon law. See 780 P.2d at 728–29. 

Pipkin interpreted Boots as holding that “each aggravating 

circumstance is a separate element and, as such, requires jury 

unanimity.” 316 P.3d at 259. As such, the government 

argues Oregon law is clear that Robbery I is divisible 

because the jury must be unanimous in finding that the 

defendant committed a specific aggravating element of the 

statute (or more than one). The government reinforces its 

argument with Oregon’s Uniform Criminal Jury Instructions 

for robbery, noting that while the instructions contain an 

intent element (element 4) that is formulated in the 

disjunctive (intent of preventing/overcoming resistance or

compelling to deliver), the aggravating element (element 5), 

contains no such disjunctive. From this, the government 

concludes that a jury must find the chosen aggravating 

element unanimously and beyond a reasonable doubt, and 

thus Robbery I is divisible.

In our view, White leaves ambiguous the question of 

whether the robbery statute is divisible or indivisible. White

first refers to the enhancing conditions of Robbery II as 

separate “elements” but later determines that the two 

elevating conditions constitute “a single crime.” 211 P.3d at 

254, 257. Edwards, White, Boots, and Oregon’s Uniform 

Criminal Jury Instructions for robbery seemingly stand in 

conflict when considering whether Robbery I and Robbery 

II are divisible. Without further guidance, we cannot say 

with confidence that Oregon precedent definitively answers 

the question whether Robbery I and II are divisible. See also 

State v. Martinez, Jr., 348 P.3d 285, 289 n.4 (Or. Ct. App. 

2015) (acknowledging “some tension in the [Oregon] 
12 UNITED STATES V. LAWRENCE

Supreme Court’s case law” as set out in Boots, Pipkin, and 

State v. Barrett, 10 P.3d 901 (Or. 2000)).

IV. Certified Questions and Further Proceedings

When engaging in a divisibility inquiry, we look to 

authoritative sources such as state court decisions and the 

wording of the relevant state statute. See Mathis, 136 S. Ct. 

at 2256. With these principles in mind, we respectfully 

certify the following questions to the Oregon Supreme 

Court:

1. Is Oregon first-degree robbery, Or. Rev. 

Stat. § 164.415, divisible?

2. Is Oregon second-degree robbery, id.

§ 164.405, divisible?

3. Put another way, is jury unanimity (or 

concurrence) required as to a particular 

theory chosen from the listed 

subparagraphs of each statute?

We respectfully ask the Oregon Supreme Court to exercise 

its discretionary authority under Oregon’s Uniform 

Certification of Questions of Law Act to accept and decide 

these questions. See Or. Rev. Stat. §§ 28.200–28.255. “Our 

phrasing of the questions should not restrict the Court’s 

consideration of the issues involved. We acknowledge that 

the Court may reformulate the relevant state law questions 

as it perceives them to be, in light of the contentions of the 

parties,” Raynor v. United of Omaha Life Ins. Co., 858 F.3d 

1268, 1273 (9th Cir. 2017), and “[w]e agree to abide by the 

decision of the Oregon Supreme Court,” Doyle v. City of 

Medford, 565 F.3d 536, 544 (9th Cir. 2009). If the court 

determines that the questions presented in this case are 
UNITED STATES V. LAWRENCE 13

inappropriate for certification, or if it declines the 

certification for any other reason, we will resolve the 

questions according to our best understanding of Oregon 

law.

The Clerk will file a certified copy of this order with the 

Oregon Supreme Court pursuant to Or. Rev. Stat. § 28.215. 

This appeal is withdrawn from submission and will be 

resubmitted following the conclusion of proceedings in the 

Oregon Supreme Court. The Clerk is directed to 

administratively close this docket, pending further order. We 

retain jurisdiction over any further proceedings in this court. 

The parties will notify the Clerk within one week after the 

Oregon Supreme Court accepts or rejects certification and 

again within one week after that court renders an Opinion.

____________________________________________

Kim McLane Wardlaw, Circuit Judge