FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT LAWRENCE VEDEROFF,

Defendant-Appellant.

No. 17-30096

D.C. No.

2:16-cr-00325-

RSL-1

OPINION

Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, District Judge, Presiding

Argued and Submitted November 6, 2018

Seattle, Washington

Filed February 1, 2019

Before: M. Margaret McKeown and Michelle T. Friedland, 

Circuit Judges, and Fernando J. Gaitan, Jr.,* District Judge

Opinion by Judge Gaitan

 * The Honorable Fernando J. Gaitan, Jr., United States District Judge 

for the Western District of Missouri, sitting by designation.
2 UNITED STATES V. VEDEROFF

SUMMARY**

Criminal Law

The panel vacated a sentence and remanded for 

resentencing in a case in which the defendant pleaded guilty 

to being a felon in possession of a firearm.

The panel held that second-degree assault under Wash. 

Rev. Code § 9A.36.021(1) is overbroad when compared to 

the generic definition of aggravated assault because only the 

former encompasses assault with intent to commit a felony. 

Because Washington’s second-degree assault statute is 

indivisible, the panel could not apply the modified 

categorical approach, and therefore concluded that 

Washington second-degree assault does not qualify as a 

“crime of violence” under the enumerated clause of U.S.S.G. 

§ 4B1.2.

The panel held that second-degree murder under Wash. 

Rev. Code § 9A.32.050 (2003) is overbroad when compared 

to the generic definition of murder because only the former 

covers felony murder. Because Washington’s seconddegree murder statute is indivisible, the panel could not 

apply the modified categorical approach, and therefore 

concluded that Washington second-degree murder is not a 

“crime of violence” under the enumerated clause of § 4B1.2.

The panel held that second-degree murder under 

§ 9A.32.050 (2003) is overbroad as compared to a generic 

 ** 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. VEDEROFF 3

crime of violence because the former imposes liability for 

negligent or even accidental felony murder. Because the 

Washington statute is indivisible, the panel could not apply 

the modified categorical approach, and therefore concluded 

that Washington second-degree murder is not a “crime of 

violence” under the force/elements clause of § 4B1.2(a)(2).

The panel held that the district court’s sentencing errors 

were not harmless.

COUNSEL

Alan Zarky (argued), Staff Attorney; Mohammad Ali 

Hamoudi, Assistant Federal Public Defender; Office of the 

Federal Public Defender, Seattle, Washington; for 

Defendant-Appellant.

Helen J. Brunner (argued), Assistant United States Attorney;

Annette L. Hayes, United States Attorney; United States 

Attorney’s Office, Seattle, Washington; for PlaintiffAppellee.

OPINION

GAITAN, District Judge:

Robert Vederoff appeals the sentence imposed following 

his guilty plea to being a felon in possession of a firearm in 

violation of 18 U.S.C. § 922(g)(1). He challenges the district 

court’s findings that his prior convictions for second-degree 

assault and second-degree murder under Washington law 

qualify as “crimes of violence” under section 4B1.2(a) of the 

United States Sentencing Guidelines (“U.S.S.G.”). For the 
4 UNITED STATES V. VEDEROFF

following reasons, we vacate and remand for further 

proceedings consistent with this Opinion.

I. BACKGROUND

Vederoff was charged with and pled guilty to being a 

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

§ 922(g).1 As part of his written plea agreement, Vederoff 

acknowledged receiving each of the felony convictions 

listed in the indictment, including one conviction for seconddegree assault and one conviction for second-degree murder, 

both under Washington law.

Before sentencing, the United States Probation Office 

issued a Presentence Report (“PSR”). The PSR set the base 

offense level at 24, under U.S.S.G. § 2K2.1, concluding that 

Vederoff’s prior convictions for second-degree assault and 

second-degree murder qualified as “crimes of violence.” 

After a three-level downward adjustment for acceptance of 

responsibility, the PSR set Vederoff’s total offense level at 

21. The PSR calculated Vederoff’s criminal history score as 

13, and his criminal history category as VI. Accordingly, 

Vederoff’s recommended Guidelines range was 77 to 

96 months. The probation officer, however, recommended 

a 60-month sentence, balancing mitigating and aggravating 

factors in Vederoff’s history.

Vederoff objected to either of these convictions counting 

as “crimes of violence” under U.S.S.G. § 4B1.2(a). He 

argued that, without the crimes of violence, the base offense 

 1 He was also charged with being a felon in possession of 

ammunition, 18 U.S.C. § 922(g), but that charge was dropped pursuant 

to the plea agreement.
UNITED STATES V. VEDEROFF 5

level should be 14, and after adjustment for acceptance of 

responsibility, the Guidelines range would be 27 to 

33 months.2 Vederoff requested a sentence of 27 months of 

imprisonment, the lowest end of his proposed range. The 

government agreed with the PSR’s crime of violence 

findings and recommended a sentence of 72 months of 

imprisonment, five months below the low end of the 

Guidelines range if both convictions counted as crimes of 

violence.

On May 5, 2017, the district court sentenced Vederoff to 

60 months in custody after concluding that both convictions 

were crimes of violence. In explaining its decision, the 

district court stated:

So on the, you know, the [United States v. 

Johnson, 135 S. Ct. 2551 (2015),] issues —

and we’re still in a state of flux on this — it 

drives me absolutely nuts as a trial judge to 

think that things like murder and assault with 

a deadly weapon could be conceived as not 

being crimes of violence, but these are highly 

technical rulings from courts that 

predominantly don’t have people who have 

ever been in a trial court, let alone been a 

trial-court lawyer or trial-court judge.

But my analysis of this is that they are both 

countable crimes of violence, and it is an 

 2 This calculation was incorrect: a three-level adjustment for 

acceptance of responsibility is only available for base offenses of 16 or 

greater. With a base offense level of 14, Vederoff would be entitled to a 

two-level adjustment. See U.S.S.G. § 3E1.1(a). The resulting Guideline 

range would be 30 to 37 months.
6 UNITED STATES V. VEDEROFF

offense level 21, Criminal History Category 

VI, 77 to 96 range. If [defense counsel] is 

correct, it would be a level 14, Criminal 

History Category VI, with a 37 to 46 range.

Either way, looking at the factors, I really 

believe the right sentence is a five-year prison 

term. So I’m going to impose a 60-month 

prison term. It’s either a departure downward 

from a range that’s too high or a departure 

upward from a range that’s too low. But the 

murder and the assault two are, in the Court’s 

opinion, countable under the analysis of 

being a divisible crime in the assault two, and 

that the ways to commit aiding and abetting 

felony murder have to comport with the 

national standard of doing something active 

to join in a felony that’s a serious felony, not 

some sort of hypothetical minor felony. It 

has to be during the commission of a 

dangerous felony or through conduct 

evincing reckless or depraved indifference to 

the serious dangers. But as I say, the range is 

not as important to me as what is the right 

sentence for this individual under these 

circumstances, and I think for the deterrent

effect and the punishment effect, five years is 

correct for the prison term.[3]

Vederoff timely appealed his sentence.

 3 The calculation of a 37 to 46 month range was incorrect. As noted, 

the correct Guideline range if neither conviction counted as a crime of 

violence was 30 to 37 months. See supra note 2.
UNITED STATES V. VEDEROFF 7

II. JURISDICTION AND STANDARD OF REVIEW

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

review de novo whether a predicate state conviction 

constitutes a crime of violence under the Guidelines. United 

States v. Robinson, 869 F.3d. 933, 936 (9th Cir. 2017). We 

apply a harmless error analysis to Guideline calculations. 

United States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th 

Cir. 2011).

III. DISCUSSION

Under U.S.S.G. § 2K2.1, Vederoff had a base offense 

level of 24 if he had two or more felony convictions that 

qualify as a “crime of violence.” U.S.S.G. § 2K2.1(a)(2). If 

he had one, his base offense level would be 20, and if he had 

none, his base offense level would be 14. U.S.S.G. 

§ 2K2.1(a)(4), (6). “For the purposes of this guideline . . .

‘Crime of violence’ has the meaning given that term in 

§ 4B1.2(a) and Application Note 1 of the Commentary to 

§ 4B1.2.” U.S.S.G. § 2K2.1 cmt. n.1. At the time of 

Vederoff’s offense and his sentencing, section 4B1.2(a), the 

career offender guideline, defined “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, or

(2) is murder, voluntary manslaughter, 

kidnapping, aggravated assault, . . . .
8 UNITED STATES V. VEDEROFF

U.S.S.G. § 4B1.2(a). The first part of this definition is the 

“force/elements clause,” and the second is the “enumerated 

clause.” The commentary clarified that “crime[s] of 

violence . . . include the offenses of aiding and abetting, 

conspiring, and attempting to commit such offenses.” 

U.S.S.G. § 4B1.2 cmt. n.1.

To determine whether a prior state conviction qualifies 

as a crime of violence, we apply the “categorical approach.” 

Robinson, 869 F.3d at 936; see also Taylor v. United States, 

495 U.S. 575, 600 (1990) (first articulating the approach in 

the context of the Armed Career Criminal Act’s (“ACCA”) 

“violent felony” provision). Under this approach, we define 

the scope of the generic federal offense at issue, and then 

compare its elements to the elements of the state criminal 

statute. United States v. Arriaga-Pinon, 852 F.3d 1195, 

1198–99 (9th Cir. 2017). If the state statute is identical to or 

narrower than the generic federal offense, then the predicate 

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

If the state statute is overbroad (i.e., criminalizes any 

conduct not covered by the generic offense), we must 

determine whether the statute is divisible (i.e., whether it has 

alternative elements). Arriaga-Pinon, 852 F.3d at 1199. If 

it is indivisible, the inquiry ends: the predicate conviction is 

not a crime of violence. If the state statute is divisible, then 

we apply the “modified categorical approach,” which 

permits examination of the indictment, jury instructions, 

and/or plea agreements to determine which of the alternative 

elements were the basis of the conviction. Id. at 1199–1200. 

The state conviction is a crime of violence if those elements 

serving as the basis of the conviction are identical to or 

narrower than the elements of the generic federal offense. 

Throughout, “we must presume that the conviction rested 

upon [nothing] more than the least of th[e] acts criminalized” 
UNITED STATES V. VEDEROFF 9

by the state statute. Moncrieffe v. Holder, 569 U.S. 184, 

191–92 (2013) (alterations in original) (citation omitted).

A. The Washington crime of second-degree assault does 

not qualify as a “crime of violence” under U.S.S.G. 

§ 4B1.2.

Under Washington law,

[a] person is guilty of assault in the second 

degree if he or she, under circumstances not 

amounting to assault in the first degree:

(a) Intentionally assaults another and 

thereby recklessly inflicts substantial 

bodily harm; or

(b) Intentionally and unlawfully causes 

substantial bodily harm to an unborn 

quick child by intentionally and 

unlawfully inflicting any injury upon the 

mother of such child; or

(c) Assaults another with a deadly 

weapon; or

(d) With intent to inflict bodily harm, 

administers to or causes to be taken by 

another, poison or any other destructive 

or noxious substance; or

(e) With intent to commit a felony, 

assaults another; or

(f) Knowingly inflicts bodily harm which 

by design causes such pain or agony as to 
10 UNITED STATES V. VEDEROFF

be the equivalent of that produced by 

torture; or

(g) Assaults another by strangulation or 

suffocation.

Wash. Rev. Code § 9A.36.021(1). In Robinson, we held that 

second-degree assault in Washington is not a crime of 

violence under the force/elements clause. 869 F.3d at 937–

41. However, Robinson did not decide whether it is a crime 

of violence under the enumerated clause.4 We must do so 

here.

For the purposes of defining federal assault, the 

government urges us to adopt the following definition of 

“aggravated assault” found in an unrelated section of the 

Guidelines:

a felonious assault that involved (A) a 

dangerous weapon with intent to cause bodily 

injury (i.e., not merely to frighten) with that 

weapon; (B) serious bodily injury;

(C) strangling, suffocating, or attempting to 

strangle or suffocate; or (D) an intent to 

commit another felony.

U.S.S.G. § 2A2.2, cmt. n.1 (emphasis added). We decline to 

do so. The introductory provisions of the Guidelines warn 

that, while definitions “also may appear in other sections,” 

those definitions “are not designed for general applicability.” 

U.S.S.G. § 1B1.1, cmt. n.2. Instead, “their applicability to 

 4 While Robinson addressed an earlier version of the Guidelines, the 

force/elements clause at issue there was same. 869 F.3d at 937–41. 

“Aggravated assault” was not listed in the enumerated clause in the 

earlier version of the Guidelines.
UNITED STATES V. VEDEROFF 11

sections other than those expressly referenced must be 

determined on a case by case basis.” Id. In other cases, 

when a section of the Sentencing Guidelines did not plainly 

identify the elements of a federal offense, we looked to the 

generic definition of that offense, rather than importing a 

specific definition located in an unrelated section of the 

Guidelines. See United States v. Gonzalez-Perez, 472 F.3d 

1158, 1161 (9th Cir. 2007); see also United States v. 

Esparza-Herrera, 557 F.3d 1019, 1022–25 (9th Cir. 2009) 

(defining the generic offense of “aggravated assault” for the 

purposes of U.S.S.G. § 2L1.2 by reference to the Model 

Penal Code, treatises, and various state laws, rather than 

using U.S.S.G. § 2A2.2); United States v. Garcia-Jimenez, 

807 F.3d 1079, 1085–87 (9th Cir. 2015) (clarifying the 

generic offense of “aggravated assault” for the purposes of 

U.S.S.G. § 2L1.2 by reference to the criminal statutes of a 

substantial majority of U.S. jurisdictions).

Accordingly, in this case we compare the definition of 

“aggravated assault” under Washington law to the generic 

definition of aggravated assault. The least culpable means 

within the Washington statute is assault with intent to 

commit a felony, Wash. Rev. Code § 9A.36.021(1)(e), so we 

must determine whether the generic definition of aggravated 

assault covers such conduct. Our review of the common 

law,5 the Model Penal Code, treatises, and the laws of the 

other states, see Esparza-Herrera, 557 F.3d at 1022–25,

compels the conclusion that generic aggravated assault does 

not include assault with intent to commit a felony. The 

Model Penal Code defines aggravated assault as assault 

causing or attempting to cause bodily injury “under 

 5 Common law does not aid our interpretation here because 

“aggravated assault” is a statutory creation. See 2 Wayne R. LaFave, 

Substantive Criminal Law § 16.1(b) (3d ed. 2018).
12 UNITED STATES V. VEDEROFF

circumstances manifesting extreme indifference to the value 

of human life” or with a deadly weapon. Model Penal Code 

§ 211.1(2). It does not include assault with intent to commit 

another felony.

With respect to the laws of the states, only six states 

(including Washington) and the District of Columbia include 

assault with intent to commit any felony within their assault 

statutes (whether titled “aggravated” assault or not).6 In 

11 states, aggravated assault includes assault with the intent 

to commit a narrower set of specific felonies7 or assault 

committed during the commission of a felony.8 In 33 states, 

aggravated assault never includes assault with the intent to 

commit a felony.9 Second-degree assault under Washington 

 6 Fla. Stat. § 784.021; Kan. Stat. Ann. § 21-5412; Mass. Gen. Laws 

ch. 265, § 29; Mich. Comp. Laws § 750.87; N.M. Stat. Ann. § 30-3-2; 

Wash. Rev. Code § 9A.36.021; D.C. Code §§ 22-403, 22-404.01.

7 Cal. Penal Code §§ 220, 245; Ga. Code Ann. § 16-5-21; N.C. Gen. 

Stat. § 14-32; 11 R.I. Gen. Laws §§ 11-5-1, 11-5-2; Va. Code Ann. 

§ 18.2–51.2.

8 Ala. Code § 13A-6-20; Del. Code Ann. tit. 11, § 613; Iowa Code 

§ 708.3; N.Y. Penal Law § 120.10; S.C. Code Ann. § 16-3-600; W. Va. 

Code § 61-2-10.

9 Alaska Stat. § 11.41.200; Ariz. Rev. Stat. Ann. § 13-1204; Ark. 

Code Ann. § 5-13-204; Colo. Rev. Stat. § 18-3-202; Conn. Gen. Stat. 

§ 53A-59; Haw. Rev. Stat. § 707-711; Idaho Code § 18-905; 720 Ill. 

Comp. Stat. 5/12-2; Ind. Code § 35-42-2-1.5; Ky. Rev. Stat. Ann. 

§ 508.010; La. Stat. Ann. §§ 14:34, 14:34.7; Me. Rev. Stat. Ann. tit. 17-

A, § 208; Md. Code Ann., Crim. Law § 3-202; Minn. Stat. §§ 609.02, 

609.221, 609.222, 609.223, 609.2233; Miss. Code Ann. § 97-3-7; Mo. 

Rev. Stat. § 565.050; Mont. Code Ann. § 45-5-202; Neb. Rev. Stat. 

§§ 28-308, 28-309; Nev. Rev. Stat. § 200.471; N.H. Rev. Stat. Ann. 

§ 631:1, 631:2; N.J. Stat. Ann. § 2C:12-1; N.D. Cent. Code § 12.1-17-

02; Ohio Rev. Code Ann. § 2903.12; Okla. Stat. tit. 21, § 646; Or. Rev. 
UNITED STATES V. VEDEROFF 13

law clearly covers a broader range of conduct than generic 

aggravated assault. We have previously concluded that 

Washington’s second-degree assault statute is indivisible, 

Robinson, 869 F.3d at 941, so we cannot apply the modified 

categorical approach here. Contrary to the conclusion 

reached by the district court, second-degree assault under 

Washington law is not a “crime of violence” under U.S.S.G. 

§ 4B1.2.

B. The Washington crime of second-degree murder does 

not qualify as a “crime of violence” under U.S.S.G. 

§ 4B1.2.

At the time of Vederoff’s offense, Washington law 

defined second-degree murder as when:

(a) With intent to cause the death of another 

person but without premeditation, he or she 

causes the death of such person or of a third 

person; or

(b) He or she commits or attempts to commit 

any felony, including assault, other than 

those enumerated in RCW 9A.32.030(1)(c) 

[Washington’s first-degree murder statute], 

and, in the course of and in furtherance of 

such crime or in immediate flight therefrom, 

he or she, or another participant, causes the 

death of a person other than one of the 

participants; except that in any prosecution 

 

Stat. §§ 163.175, 163.185; 18 Pa. Cons. Stat. § 2702; S.D. Codified Laws 

§ 22-18-1.1; Tenn. Code Ann. § 39-13-102; Tex. Penal Code Ann. 

§ 22.02; Utah Code Ann. § 76-5-103; Vt. Stat. Ann. tit. 13, § 1024; Wis. 

Stat. § 940.19; Wyo. Stat. Ann. § 6-2-502.
14 UNITED STATES V. VEDEROFF

under this subdivision (1)(b) in which the 

defendant was not the only participant in the 

underlying crime, if established by the 

defendant by a preponderance of the 

evidence, it is a defense that the defendant:

(i) Did not commit the homicidal act or in 

any way solicit, request, command, 

importune, cause, or aid the commission 

thereof; and

(ii) Was not armed with a deadly weapon, 

or any instrument, article, or substance 

readily capable of causing death or 

serious physical injury; and

(iii) Had no reasonable grounds to believe 

that any other participant was armed with 

such a weapon, instrument, article, or 

substance; and

(iv) Had no reasonable grounds to believe 

that any other participant intended to 

engage in conduct likely to result in death 

or serious physical injury.

Wash. Rev. Code § 9A.32.050 (2003). We must now 

determine whether a conviction under this statute is a crime 

of violence under either the enumerated clause or 

force/elements clause of U.S.S.G. § 4B1.2.

1. Enumerated clause

We have not adopted a definition for generic murder. 

After surveying the Model Penal Code, dictionary 

definitions, and state laws, the Third Circuit defined generic 
UNITED STATES V. VEDEROFF 15

murder as “causing the death of another person either 

intentionally, during the commission of a dangerous felony, 

or through conduct evincing reckless and depraved 

indifference to serious dangers posed to human life.” United 

States v. Marrero, 743 F.3d 389, 401 (3d Cir. 2014), 

abrogated on other grounds by Johnson v. United States, 

135 S. Ct. 2551 (2015); see also United States v. CastroGomez, 792 F.3d 1216, 1217 (10th Cir. 2015) (citing 

approvingly to Marrero). We adopt that definition here.

The least culpable means of committing second-degree 

murder in Washington is under the felony murder provision, 

so we must determine whether generic murder also covers 

such conduct. Under Washington law, the underlying felony 

can be any felony—unlike felony murder in the Third 

Circuit’s definition of generic murder, it is not limited to 

dangerous felonies. Washington’s felony murder provision 

is an outlier among the states: seven do not impose felony 

murder liability at all. Guyora Binder, Making the Best of 

Felony Murder, 91 B.U. L. Rev. 403, 440 (2011) (citing to 

Arkansas, Hawaii, Kentucky, Michigan, New Hampshire, 

New Mexico, and Vermont). In the jurisdictions that do 

impose felony murder liability, unlike Washington, a 

majority enumerate the predicate felonies in their statute. 

See id. at 450 n.262 (citing to 18 U.S.C. § 1111 and Alaska, 

Arizona, Colorado, Connecticut, District of Columbia, 

Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Nebraska, 

New Jersey, New York, North Dakota, Ohio, Oregon, 

Pennsylvania, South Dakota, Tennessee, Utah, West 

Virginia, Wisconsin, and Wyoming). In the jurisdictions 

without exhaustively enumerated predicate felonies, almost 

all require that the predicate offense be a dangerous felony. 

See id. at 466–82 (discussing Alabama, California, 

Delaware, Georgia, Illinois, Maryland, Massachusetts, 

Minnesota, Missouri, Montana, Nevada, North Carolina, 
16 UNITED STATES V. VEDEROFF

Oklahoma, Rhode Island, South Carolina, Texas, and 

Virginia). Only three states (including Washington) allow 

felony murder to be predicated on non-enumerated offenses 

lacking a dangerousness requirement. See id. at 478 

(explaining that Florida and Mississippi are the two other 

jurisdictions). Furthermore, the Model Penal Code limits 

felony murder to deaths resulting from conduct involving 

certain specified dangerous offenses. Model Penal Code 

§ 210.2(1)(b).

The government insists that any concerns regarding the 

breadth of the statute are hypothetical. See Gonzales v. 

Duenas-Alvarez, 549 U.S. 183, 193 (2007) (requiring “a 

realistic probability, not a theoretical possibility, that the 

State would apply its statute to conduct that falls outside the 

generic definition of a crime”). Facial overbreadth like that 

here, however, is a basis for finding a statute overbroad. See

United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) 

(en banc) (holding that where “a state statute explicitly 

defines a crime more broadly than the generic definition, no 

‘legal imagination,’ is required to hold that a realistic 

probability exists that the state will apply its statute to 

conduct that falls outside the generic definition of the crime” 

(citing Duenas-Alvarez, 549 U.S. at 193)).

Washington’s second-degree murder statute is therefore 

overbroad when compared with the definition of generic 

murder, as well as the Model Penal Code and the laws of 

other jurisdictions. We next turn to whether this statute is 

divisible. Because the plain language of the statute does not 

resolve this question, we look to state decisional law. 

Robinson, 869 F.3d at 938. Washington courts have 

concluded that the statute is indivisible, and we adopt their 

interpretation here. See, e.g., State v. Berlin, 947 P.2d 700, 

705–06 (Wash. 1997) (holding that this statute defines a 
UNITED STATES V. VEDEROFF 17

“single crime, which can be committed by alternative 

means” and therefore, “the State is not required to elect 

between the alternative means of committing second degree 

murder”); see also State v. Lizarraga, 364 P.3d 810, 828 

(Wash. Ct. App. 2015) (concluding that this statute contains 

alternative means, not alternative elements). As above, we 

cannot apply the modified categorical approach. Contrary to 

the conclusion reached by the district court, second-degree 

murder under Washington law is not a crime of violence 

under the enumerated clause of U.S.S.G. § 4B1.2(a)(2).

2. Force/elements clause

The government argues for the first time on appeal that 

second-degree murder qualifies as a crime of violence under 

the force/elements clause. We need not determine whether 

it has waived or forfeited this claim, because it is apparent 

that the argument fails on the merits. The generic “crime of 

violence” includes the following elements: (i) the crime has 

“as an element the use, attempted use, or threatened use of 

physical force against [a] person,” (ii) the “physical force” 

must be “violent” or otherwise “capable of causing physical 

pain or injury to another person,” and (iii) the “use of force 

must be intentional, not just reckless or negligent.” U.S.S.G. 

§ 4B1.2(a)(1); United States v. Dixon, 805 F.3d 1193, 1197 

(9th Cir. 2015) (defining “violent felony” under ACCA’s 

force/elements clause); United States v. Ladwig, 432 F.3d 

1001, 1005 n.9 (9th Cir. 2005) (noting that requirements for 

the ACCA’s “violent felony” and the Guidelines’ “crime of 

violence” are “identical”). On the other hand, Washington 

law imposes liability for negligent or even accidental felony 

murder. See, e.g., State v. Leech, 790 P.2d 160, 164 (Wash. 

1990) (“The purpose of the felony murder rule is to deter 

felons from killing negligently or accidentally by holding 

them strictly responsible for killings they commit.”). The 
18 UNITED STATES V. VEDEROFF

statute is therefore overbroad as compared to a generic crime 

of violence. As noted above, we cannot apply the modified 

categorical approach because this statute is indivisible. 

Second-degree murder under Washington law is not a crime 

of violence under the force/elements clause of U.S.S.G. 

§ 4B1.2(a)(2).10

C. The sentencing errors were not harmless.

Even when the district court indicates it would impose 

the same sentence regardless of the proper Guidelines range, 

we have held that “[a] mistake in calculating the 

recommended Guidelines sentencing range is a significant 

procedural error that requires us to remand for 

resentencing.” Munoz-Camarena, 631 F.3d at 1030. “[T]he 

district court must correctly calculate the recommended 

Guidelines sentence and use that recommendation as the 

‘starting point and the initial benchmark.’ . . . [T]he 

recommended Guidelines range must ‘be kept in mind 

throughout the process.’” Id. (citations omitted). We 

require that the “district court [ ] start with the recommended 

Guidelines sentence, adjust upward or downward from that 

point, and justify the extent of the departure from the 

Guidelines sentence.” Id. (citation omitted). “A district 

court’s mere statement that it would impose the same aboveGuidelines sentence no matter what the correct calculation 

cannot, without more, insulate the sentence from remand, 

 10 Because we conclude that Vederoff’s convictions for seconddegree murder and second-degree assault do not constitute crimes of 

violence, we need not determine whether accomplice liability under 

Washington law is categorically broader than federal aiding and abetting 

liability, under the reasoning in United States v. Valdivia-Flores, 

876 F.3d 1201, 1207-09 (9th Cir. 2017), such that no Washington 

conviction qualifies as a crime of violence.
UNITED STATES V. VEDEROFF 19

because the court’s analysis did not flow from an initial 

determination of the correct Guidelines range.” Id. at 1031.

Here, it appears that the district court started with the 

presumption that a 60-month sentence was the correct one, 

and it attempted to justify it as either a downward departure 

from the Guidelines calculation he accepted at sentencing or 

an upward departure from the Guidelines calculation 

advocated by defense counsel. Having now determined that 

the proper Guideline range would be 30 to 37 months, we 

cannot say that the district court’s incorrect calculation of the 

proper Guideline range was harmless. The explanation 

given by the district court does not explain why the court 

imposed a sentence nearly double the Guideline range. Nor 

does it demonstrate that the district court would impose the 

same sentence if the correct Guidelines range were “kept in 

mind throughout the process.” Id. at 1030 (citation omitted). 

Moreover, the explanation provided by the district court 

does not account for the amount or direction of the departure; 

the mitigating factors discussed by the district court could 

also have warranted a downward variance from the proper 

Guideline range. This case must therefore be remanded for 

resentencing with the correct Guidelines range in mind. 

United States v. Brown, 879 F.3d 1043, 1051 (9th Cir. 2018) 

(“The use of an incorrect starting point and the failure to 

keep the proper Sentencing Guidelines range in mind as the 

sentencing decision was made constituted ‘a significant 

procedural error,’ and the case must be remanded for 

resentencing.” (quoting Munoz-Camarena, 631 F.3d at 

1030)).

SENTENCE VACATED, REMANDED FOR 

RESENTENCING.