IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

LUCIAN MOON PATCHELL, 

Defendant. 

AIKEN, District Judge: 

No. 6:15-cr-00108-AA 

OPINION AND 0 RD E R 

Defendant, Lucian Moon Patchell, disputes that he should be sentenced as a career 

offender pursuant to United States Sentencing Guidelines ("U.S.S.G") § 2K2.1. At issue is 

whether defendant's prior conviction for Oregon Robbery II, pursuant to Oregon Revised Statue 

("O.R.S.") § 164.405 qualifies as a predicate offense under the career offender provision. For the 

reasons set for herein, I conclude that Oregon Robbery II is a qualifying crime of violence under 

the career offender provision of the Sentencing Guidelines. 

I II 

I II 

1 - OPINION AND ORDER 
BACKGROUND 

On March 18, 2015, a federal grand jury returned a two-count Indictment (doc. 1) against 

defendant for violations of 18 U.S.C. § 2113(a), based on bank robberies which occutTed on 

February 6, 2015 and February 26, 2015.' On August 16, 2017, defendant pleaded guilty to 

Counts 1 and 2 of the Indictment (doc. 36) pursuant to a Rule ll(c)(l)(B) plea agreement. 

Defendant filed objections to the Presentence Investigation Report ("PSR") disputing the 

recommendation of the U.S. Probation Office and U.S. Attorney Office that he be sentenced 

under the career offender guideline. I heard oral argument on January 10, 2018. Defendant was 

sentenced on February 21, 2018. 

At sentencing, I held that Oregon Robbery II qualified as a predicate offense under the 

elements clause of the Career Offender Guideline U.S.S.G. § 2K2.1. I found that the Total 

Offense Level was 29 and that defendant had a Criminal History Category of VI. This produced 

an Advisory Guideline Range of 151 to 188 months imprisonment. Pursuant to the sentencing 

factors found in 18 U.S.C. § 3553, I sentenced defendant to a term of 120 months imprisonment 

on Count 1 to run conctmently with a 120 month te1m of imprisonment for Count 2, with a three 

year term of supervised release to follow. This written opinion fmiher explains my reasoning as 

to the guideline arguments presented by the patiies. 

LEGAL STANDARD 

Federal firearms defendants are subject to enhanced Sentencing Guidelines ranges when 

they commit a firearm offense after sustaining one or more felony convictions of a crime of 

violence. United States v. Park, 649 F.3d 1175, 1177 (9th Cir. 2011) (quoting U.S.S.G. § 

1 Defendant was atTested for the instant offense on March 19, 2015 and has remained in 

custody since that time. 

2 - OPINION AND ORDER 
2K2.l(a)). To determine whether a prior offense is a "crime of violence," the Application Notes 

to § 2K2.l refer to the meaning given that te1m in U.S.S.G. § 4Bl.2(a) and Application Note 1 of 

the Commentary to§ 4Bl.2. Section 4Bl.2(a), which is othetwise known as the "career offender 

provision," provides that: 

The te1m of 'crime of violence' means 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, 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. § 84l(c). 

U.S.S.G. § 4Bl.2 

A person commits the crime of robbery in the second degree if the person violates 0.R.S. 

§ 164.395 (robbery in the third degree) and the person: 

(a) Represents by word or conduct that the person is aimed with what purpo1is to 

be a dangerous or deadly weapon; or 

(b) Is aided by another person actually present. 

O.R.S. § 164.405. 

A person commits the crime of robbery in the third degree if in the course of committing 

or attempting to commit theft or unauthorized use of a vehicle as defined in 0.R.S. 

164.135 the 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) Compelling the owner of such prope1iy or another person to deliver the 

prope1iy or to engage in other conduct which might aid in the commission of the 

theft or unauthorized use of a vehicle. 

O.R.S. § 164.395 

3 - OPINION AND ORDER 
DISCUSSION 

Initially, I note that the pmiies cite conflicting holdings regarding the applicability of 

O.R.S. § 164.405 as a predicate offense under Sentencing Guidelines. In Wicklund v. United 

States, Judge Hernandez held that Oregon Robbery II was not a crime of violence pursuant to 

U.S.S.G. § 2K2.l. 2016 WL 6806341 (D. Or. 2016). In a more recent decision, Judge Mosman 

held that Oregon Robbery II qualified as violent felony under the Armed Career Criminal Act 

("ACCA"). See, United States v. Ankeny, ("Ankeny II"), 2017 WL 722580, at *5 (D. Or. 2017).2 

While their analysis is helpful, neither holding binds my decision here.3 

A district court must "begin all sentencing proceedings by correctly calculating the 

applicable Guidelines range." Beckles v. U.S 137 S.Ct.886, 891 (2017) (citing Gall v. United 

States, 552 U. S. 38, 49-50). A district court applies the guidelines in effect on the date of 

sentencing. 18 U.S.C. § 3553(a)(4)(A)(ii). The comi properly applies the version of the 

Sentencing Guidelines in effect at the time of sentencing, unless doing so would violate the ex 

post facto clause." United States v. Thomsen, 830 F.3d 1049, 1071 (9th Cir. 2016); USSG §§ 

lBl.l l(a), (b)(l). "To implicate ex post facto concerns, amendments to the Sentencing 

Guidelines must present 'a sufficient risk of increasing the measure of punislunent attached to 

the covered crimes."' United States v. Waters, 771 F.3d 679, 680 (9th Cir. 2014) (quoting Peugh 

2 This decision is cmTently on appeal to Ninth Circuit. Case No. 17-35138 

3 "A decision of a federal district court judge is not binding precedent in either a 

different judicial district, the same judicial district, or even upon the same judge in a different 

case." Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011); see also Starbuckv. City & Cty. of 

S.F, 556 F.2d 450, 457 n.13 (9th Cir. 1977) ("The doctrine of stare decisis does not compel one 

district court judge to follow the decision of another.") 

4 - OPINION AND ORDER 
v. United States, 133 S. Ct. 2072, 2082 (2013)). There are no ex post facto concems here. 

Accordingly, the applicable guidelines are set f01ih in the 2017 Sentencing Guidelines Manual. 

Under the current Guidelines, § 4Bl.2(a) contains two clauses-the "elements clause,"§ 

4Bl.2(a)(l); and the "enumerated offenses clause," § 4Bl.2(a)(2). If Oregon Robbery II falls 

within either clause, it is a "crime of violence" under the Guidelines. I first examine Oregon 

Robbery II is crime of violence in relation to the elements clause. § 4Bl.2(a) ('"[C]rime of 

violence' means any offense under federal or state law, punishable by imprisonment for a tenn 

exceeding one year, that [ ... ] has as an element the use, attempted use, or threatened use of 

physical force against the person of another .") 

In deciding whether a defendant's prior conviction qualifies as a crime of violence under 

the Sentencing Guidelines, courts first apply a formal categorical approach. Taylor v. United 

States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); United States v. Slade, 873 F.3d 

712, 714 (9th Cir. 2017). First, we decide whether the elements of the prior crime match the 

elements of the generic federal definition of a crime of violence. Slade, 873 F.3d at 714 (9th Cir. 

2017). 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 apply the modified categorical approach. Id 

Thus, my first task is to examine the statute of conviction to determine whether it 

categorically qualifies as a predicate offense for federal sentencing purposes. In doing so, I focus 

solely on whether the elements of the statute of conviction match the elements of the identified 

qualifying federal offense. Taylor, 495 U.S. at 600-01. If they do match, the conviction may be 

used to enhance the sentence without looking futiher. United States v. Arriaga-Pinon, 852 F.3d 

5 - OPINION AND ORDER 
1195, 1199 (9th Cir. 2017). However, ifthe state statute criminalizes conduct that would not 

qualify as a federal predicate offense, then the offense does not categorically qualify as a proper 

predicate offense. Id (citing United States v. Corona-Sanchez, 291F.3d1201, 1203 (9th Cir. 

2002) (en bane), superseded on other grounds by U.S.S.G. § 211.2 cmt. n. 2 (2002)). 

I find that O.R.S. § 164.405 is not a categorical match under the career offender 

guideline. In order to be a match, the statute in question must contain "an element the use, 

attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 

4Bl.2(1). "However, the inclusion of'physical force' as an element of the state statute is not, 

standing alone, sufficient to make conviction under that statute a predicate offense." Wicklund, 

2016 WL 6806341, at 2 (citing United States v. Dunlap, 162 F. Supp. 3d 1106, 1113 (D. Or. 

2016)). 

The Ninth Circuit has previously held that Robbery II in Oregon is a violent felony under 

the ACCA. See United States v. Ankeny ("Ankeny I") 502 F.3d 829, 840 (9th Cir. 2007) ("The 

Oregon statutory definition of second-degree robbery contains the required element of use, 

attempted use, or threatened use of physical violence."). However, Ankeny I was decided before 

the Supreme Court determined that the phrase "physical force" actually means "violent force," or 

"force capable of causing physical pain or injury to another person." Johnson v. United States, 

130 S. Ct. 1265, 1271 (2010) ("Johnson J"). This force must also "be inflicted intentionally, as 

opposed to recklessly or negligently." United States v. Lawrence, 627 F.3d 1281, 1284 (9th Cir. 

2010). 

As noted in Ankeny II, there are realistic, as opposed to hypothetical scenarios where a 

person could commit Robbery II with minimal force, under paragraph b, while being aided by 

6 - OPINION AND ORDER 
another person actually present. 2017 WL 722580 at 2. A commonly used example is that of a 

purse snatcher who steals a purse while an accomplice distracts the victim. "Even though the 

purse snatcher's actions would constitute Robbery II, it is difficult to argue that such actions are 

'capable of causing physical pain or injury to another person."' Id. (citing Johnson, 130 S. Ct. at 

1271). 

The court in Wicklund also found the statute overbroad but relied on State v. Johnson, 

("Johnson II") in determining that very little force is needed to sustain a Robbery III conviction 

in Oregon. 215 Or. App. 1, 168 P.3d 312. Judge Hernandez succinctly summarized the facts of 

that case as follows: 

State v. Johnson is a quintessential purse-snatching case. The victim, an 86-year-old 

woman, drove home after her weekly bingo game, parked her car, and climbed the stairs 

to her house. Her hands were full-she was carrying a vase of flowers in her left aim, she 

had her purse on her left shoulder, and her snacks and cane were in her right hand. As she 

walked up the stairs, she felt her arm slip and thought she was losing her purse. She 

reached to put her purse back on her shoulder and, at that point, saw the defendant 

running away with her purse and flowers. Id. The victim testified that she did not feel a 

tug or much of anything. The perpetrator was subsequently convicted of Oregon Robbery 

III. 

Id. (internal citations omitted). Because later Oregon Supreme Court decisions "did not address, 

much less overrule" Johnson II, the court in Wicklund held that Oregon Robbery could not be a 

crime of violence under the elements clause. Id. at 3. 

It is important to note that while Robbery II is a distinct crime, it does incorporate and 

adopt the force element from Robbery III. See O.R.S. § 164.405. Regardless, it is clear that 

Robbery II is overbroad under the categorical approach. However, I find that the analysis does 

not end here. I now must examine Robbery II to determine whether its provisions are divisible. 

II/ 

7 - OPINION AND ORDER 
A divisible statute is one that: 

sets out one or more elements of the offense in the alternative-for example, stating that 

burglary involves entry into a building or an automobile. If one alternative (say, a 

building) matches an element in the generic offense, but the other (say, an automobile) 

does not, the modified categorical approach permits ... courts to consult a limited class of 

documents, such as indictments and jury instructions, to determine which alternative 

formed the basis of the defendant's prior conviction. The court can then do what the 

categorical approach demands: compare the elements of the crime of conviction 

(including the alternative element used in the case) with the elements of the generic 

crime. 

Descamps v. United States, 503 U.S. 254, 262, 133 S.Ct. 2276, 2281, (2013). 

Further, to dete1mine whether a statute is divisible, I consider whether "an element of the 

crime of conviction contains alternatives, one of which is an element of its federal analogue." 

Acosta-Chavez, 727 F.3d at 909 (citing Descamps, 133 S.Ct. at 2283-84). A disjunctive statute 

is divisible "only if it contains multiple alternative elements, as opposed to multiple alternative 

means." Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir.2014). More specifically, "[ o ]nly when 

state law requires that in order to convict the defendant the jury must unanimously agree that he 

committed a particular substantive offense contained within the disjunctively worded statute are 

we able to conclude that the statute contains alternative elements and not alternative means." Id. 

To determine whether the elevating conditions are separate elements as opposed to 

separate means, I must look to Oregon state law. lYiathis v. United States, 136 S. Ct. 2243, 2256 

(2016). The question of whether a statute is divisible pursuant to the career offender provision of 

the Sentencing Guidelines is not necessarily a question a state case may answer directly, but state 

law can provide guidance as to whether the various subparts of a statute amount to multiple, 

alternative elements of functionally separate crimes or multiple, alternative means of the same 

crime. Ankeny II 2017 WL 722580 at 4. 

8 - OPINION AND ORDER 
Oregon law has three statutes that "provide an incrementally graded set of standards for 

determining the seriousness of different fo1ms of robbery." Oregon v. White, 346 Or. 275, 285 

(2009). Robbery III describes the basic crime of robbery: "taking or attempting to take property 

from another while preventing or overcoming the victim's resistance to giving up the prope1iy by 

using or threatening to use physical force." Id. "The crimes of second- and first-degree robbery 

then use third-degree robbery as a foundation and build on its elements by identifying additional 

elements that, if present, make the crime a more serious one." Id. The Oregon Supreme Cou1i 

refers to these additional elements as different "aggravating factors." Id. at 289. 

By looking carefully at the rationale in White, and the structure of the Robbery II statute, 

I agree with analysis in Ankeny II and conclude that the statute is divisible. The Oregon Supreme 

Comi in White considered whether a defendant's conduct that satisfied both enhancing conditions 

under Robbery II could suppmt two separate guilty verdicts. 346 Or. at 278-279. The court 

ultimately held that the two verdicts merged for sentencing purposes. However, the court also 

noted that the elevating conditions from Robbery II constitute different elements that "involve 

proof of different facts." Ankeny II, 2017 WL 722580 at 4 (citing White, 346 Or. at 286). 

Moreover, the criminal episode, which satisfied both paragraphs of§ 164.405, supported two 

different guilty verdicts on two separate jury instructions. Id. Even though these verdicts 

eventually merged for purposes of sentencing, the fact that they were instructed separately 

indicates the statute is divisible. Id. 

Second, when state law "fails to provide clear answers" on the divisibility of a statute, 

courts may "peek at the [record] documents" for the "sole and limited purpose of determining 

whether the [listed items are] element[s] of the offense." Mathis, 136 S. Ct. at 2256-57 (quoting 

9 - OPINION AND ORDER 
Rendon, 782 F.3d at 473-74) (internal quotation marks omitted). Here, defendant was charged 

on August 23, 2015 with three counts of Robbery II in Jackson County, Oregon under subsection 

(l)(a) of ORS 164.405. The Amended Indictment alleged that, on three occasions, defendant: 

"did, unlawfully and knowingly, while in the course of committing theft, and with the intent of 

preventing and overcoming resistance to defendant's taking of property and retention of the 

property after the taking, threaten the immediate use of physical force upon another person and 

represent by word and conduct that defendant was anned with what purported to be a deadly 

weapon." Govt. Sent. Ex. 9 at 2615-17. Defendant was convicted of all three counts and received 

the following sentences: as to Count 1, 70 months; as to Count 2, 70 months with 44 months 

concunent to Count 1 and 26 months consecutive to Count 1; and as to Count 3, 70 months 

concunent to Counts 1 and 2. 

Further, the Oregon Uniform Criminal Jury Instructions indicate divisibility. OR-ICRIM 

2101; ER 101-102. See Mathis, 136 S. Ct. at 2257 ("[J]ury instructions could indicate, by 

referencing one alternative term to the exclusion of all others, that the statute contains a list of 

elements, each one of which goes toward a separate crime.") Unlike the intent element, which 

allows the jury to find the element whether the defendant acted preventing or overcoming 

resistance or compelling someone to deliver the property or aid the crime, the instructions make 

clear that the aggravating element of representing by word or conduct that a defendant was 

armed with deadly or dangerous weapon must be found independently. 

Defendant urges that I follow approach taken in Wickland and hold that as long as 

Johnson II is still good law Robbery II cannot be crime of violence. However, Johnson II is not 

dispositive in determining the divisibility of Robbery II. That case dealt with a conviction for 

10- OPINION AND ORDER 
Robbery III, and, indeed, other comts have been clear that Oregon Robbery III does not require 

the force necessary to be match for a violent felony under the ACCA. See US. v. Strickland, 860 

F. 3d 1224 (9th Circuit 2017); Dunlap, 162 F. Supp. 3d at 1106. 

However, it goes without saying that Robbery III is not the same offense as Robbery II, 

namely it does not contain the elevating conditions at issue here. Ankeny II, 2017 WL 722580 at 

5. "Additionally, unlike the disjunctive phrases in Robbery III, a jury would need to 

unanimously agree that a person (a) represented he was armed with what purpo1ts to be a 

dangerous weapon, or (b) was aided by another person actually present to convict that person of 

Robbery II." Id. See also Ramirez v. Lynch, 810 F.3d 1127, 1134 (9th Cir. 2016) ("[T]he key 

question we must ask when determining a statute's divisibility is whether a jury would have to be 

unanimous in finding those separate elements.") Based on all these reasons, I find the enhancing 

conditions in Robbery II to.be divisible. 

When the statute of conviction is divisible, "the modified categorical approach pe1mits 

sentencing courts to consult a limited class of documents ... to dete1mine which alternative 

formed the basis of the defendant's prior conviction." Descamps, 133 S.Ct. at 2281. These 

documents include "the charging document, the terms of a plea agreement or transcript of 

colloquy between judge and defendant in which the factual basis for the plea was confirmed by 

the defendant, or ... some comparable judicial record of this info1mation." Shepard v. United 

States, 544 U.S. 13, 26, 125 S.Ct. 1254, (2005). "The cou1t can then ... compare the elements of 

the crime of conviction (including the alternative element used in the case) with the elements of 

the generic crime." Descamps, 133 S.Ct. at 2281. 

11 - OPINION AND ORDER 
If jury unanimity is required, then the alternatives are elements, and under the 

"modified" categorical approach, a court may analyze subsection (a) in isolation to determine 

whether it is categorically a crime of violence. Id. at 2248-50. By contrast, if a jury could return 

a conviction without agreeing on which particular statutory alternative applied, then the statute is 

indivisible and does not categorically define a crime of violence. See United States v. Robinson, 

869 F.3d 933, 938 (9th Cir. 2017). 

Here, it is clear, based on clear language of the 2005 Jackson County Amended 

Indictment, that defendant was charged with three counts of Robbery II under paragraph (l)(a) of 

0.R.S. § 164.405. 

Next I must determine whether a conviction pursuant to 0.R.S. § 164.405(a) qualifies as 

a crime of violence under the U.S.S.G. 2K2.1. Again, the Oregon Supreme Court's decision in 

White and the comt's analysis in Ankeny II is helpful. 

The court in White noted that it is the "concept of fear or threat of violence that separates 

robbery from mere theft." Indeed, the "use or threat of violence is what causes the victim 

to part with the property, and that coercive effect is what each of the robbery statutes 

addresses." Although White uses the word "violence," its findings are instructive on the 

level and quality of force required for Robbery II. Essentially, White shows that the 

coercive effect on the victim from the use of force or violence increases by virtue of the 

robber purpotting to have a dangerous weapon or being accompanied by another 

person. The effect of either elevating circumstance "results in different levels of threat 

that may persuade the victim to part with his or her property with more or less 

reluctance." Thus, because White makes clear that the representation of a weapon 

increases the coerciveness of the threat or use of force, the force and weapon elements 

under Robbery II are necessarily conjoined. 

Ankeny II, 2017 WL 722580 at 6 (internal citations omitted). 

The fact that a defendant must objectively represent by word or action that she was aimed 

with dangerous or deadly weapon in the commission of the robbery distinguishes the Oregon 

Robbery II from other robbery statutes that the Ninth Circuit has held do not qualify as violent 

12 - OPINION AND ORDER 
felonies under the ACCA. See United States v. Parnell, 818 F.3d 974 (9th Cir. 2016); United 

States v. Molinar, 876 F.3d 953 (9th Cir. 2017). Those cases dealt with Massachusetts and 

Arizona armed robbery statutes, respectively, where the comis found that a person could be 

convicted of the crime without the victim knowing the perpetrator was armed. The Ninth Circuit 

explained that the mere possession of a firearm while committing the crime of robbery was not 

enough to qualify as violent felony. "There is a material difference between the presence of a 

weapon, which produces a risk of violent force, and the actual or threatened use of such force. 

Only the latter falls within the ACCA's force clause." Parnell, 818 F.3d at 979 (emphasis 

removed). 

In contrast, O.R.S. § 164.405(1)(a) requires an actual use of the weapon to effectuate the 

robbery. This conclusion is further bolstered by the analysis in White, which provided that "the 

use or threat of violence is what causes the victim to pati with the property" and that the coercive 

effect increases with each gradation of robbery. Ankeny 112017 WL 722580 at 7. (citing White 

346 Or. at 289.) ("In other words, the mere representation that a robber is armed with what 

purports to be a dangerous weapon makes it more likely that the victim will relinquish prope1iy 

in response to the robber's demand.") 

Defendant argues that there are still scenarios in which someone might be convicted 

under O.R.S. § 164.405(l)(a) without the communicating an intent to use a weapon. He offers 

the example of a purse snatcher who, like the defendant in Johnson II, snatches a purse before 

the victim realizes what is happening. But he contends that if the hypothetical defendant were 

carrying a gun in his waistband, and the victim saw the weapon while the defendant was fleeing 

the scene of crime, then the elevating condition under§ 164.405(1)(a)would be satisfied. A 

13 - OPINION AND ORDER 
similar scenario was presented by the defendant in Ankeny 11. As Judge Mosman noted, the 

problem with this scenario is that "the representation that one is purportedly armed with a 

dangerous weapon is completely divorced from the use or threatened use of force. Thus, the 

hypothetical does not contain what White asserts is a necessary pait of Robbery II: that the 

representation of a dangerous weapon objectively elevates the threat to the victim." Ankeny II 

2017 WL 722580 at 7. 

Defendant points to no actual Oregon state cases for a conviction under Robbery II which 

resemble their hypothetical.4 Defendant's scenario is too speculative and does not present a 

"realistic probability ... that the State would apply its statute to conduct that falls outside" the 

requirements ofa violent felony. Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85 (2013). As 

such, under the modified categorical approach, paragraph (a) of Robbery II is not overbroad and 

can validly qualify as a crime of violence pursuant to the career offender guideline under the 

elements clause. 5 6 

4 Defendant relies on Oregon v. Lee, a case in which the Oregon Court of Appeals 

considered whether the crime of menacing is a lesser included offense of Robbery II. 23 P.3d 

999, 1002 (Or. App. 2001). I do not find this case persuasive. Even though the robber from the 

hypothetical in Lee does not intend that the victim feel fear, the presence of the weapon still 

elevates the coerciveness of the robber's threat or use of force. Ankeny II2017 WL 722580 at 7 

(citing White, 346 Or at 289-290). 

5 Given my holding, I find it unnecessary to examine whether Oregon Robbery II 

qualifies as a crime of violence under the enumerated offense clause. U.S.S.G. § 4Bl.2(a)(2) 

6 Defendant raised two additional arguments not included in his written briefing at the 

sentencing hearing held on February 21, 2018. First, defense counsel asked me to note that there 

may be have been a change in the law with regard to whether defendant's 2004 Washington state 

conviction for Possession with Intent to Manufacture or Distribute Methamphetamine qualifies 

as a predicate offense under the career offender guideline. Defense counsel then represented that 

defendant was not challenging whether the conviction was a predicate offense for the purposes of 

sentencing in this case pursuant to the plea agreement. Given this representation, there is nothing 

for me to resolve regarding this argument. 

14- OPINION AND ORDER 
CONCLUSION 

Under the categorical approach, Oregon Robbery II is overbroad as compared to the 

requirements for a crime of violence under the career offender guideline U.S.S.G. § 2K2.1. The 

statute is divisible because the elevating circumstances in paragraphs (a) and (b) constitute 

alternative elements, as opposed to alternative means. Thus, under the modified categorical 

approach, a conviction under paragraph (a) of O.R.S. § 164.405(1) meets the definition of a 

crime of violence, meaning that Defendant's Robbery II conviction is a valid predicate offense 

under the Career Offender Guideline. 

IT IS SO ORDERED. 

Dated this 19th day ofMarch 2018. 

Ann Aiken 

United States District Judge 

Defendant also asked the court to consider a recent unpublished district comi decision in 

United States v. Durr. 3:09-cr-00080-JO (D. Or. Sept. 11, 2017). This was an ACCA case where 

the defendant moved, pursuant to 28 U.S.C. § 2555, to vacate a previous sentence for a 

conviction for Possession with Intent to Distribute Methamphetamine. The parties' stipulated 

that the defendant was no longer an Armed Career Criminal pursuant to Johnson I. The court 

considered whether defendant's past conviction for Oregon's Attempted Robbery I pursuant to 

0.R.S. § 164.415, qualified as a crime of violence pursuant to the career offender guideline. The 

parties stipulated that Oregon's Robbery I statute was divisible. The court then employed a 

modified categorical approach and held that the Shepard documents submitted by the 

government did not establish which subsection of the robbery statute the defendant was 

convicted of violating. Thus, because the judgment and indictment were unclear, the court held 

that the defendant's conviction for Attempted Robbery I could not be a crime of violence. 

This ruling is not helpful my analysis here. The statute analyzed was Oregon Robbery I, 

not Robbery II. Moreover, the pmiies stipulated to divisibility, and Judge Jones perfo1med a 

modified categorical analysis and determined that the defendant's conviction for Attempted 

Robbery I was not a predicate offense pursuant to the career offender based on facts particular to 

that case. 

15 - OPINION AND ORDER