IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, Civ. No. 1 :14-cr-00406-AA 

v. OPINION & ORDER 

CARL GENE DUNLAP, 

Defendant. 

AIKEN, District Judge. 

This matter comes before the court for determination of whether Defendant Carl Gene 

Dunlap should be sentenced subject to the mandatory minimum sentence required by the Armed 

Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). 

LEGAL STANDARD 

I. ACCA 

18 U.S.C. § 922(g) prohibits any person who has been convicted of a crime punishable by 

imprisonment for a term exceeding one year to possess or receive "any firearm or ammunition 

which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922(g). 

If a person violates 18 U.S.C. § 922(g) and has three previous convictions "for a violent felony 

or a serious drug offense, or both, committed on occasions different from one another, such 

person shall be ... imprisoned not less than fifteen years[.]" 18 U.S.C. § 924(e)(l). 

A "violent felony" is defined as: 

[A ]ny crime punishable by imprisonment for a term exceeding one year ... that 

(i) has as an element the use, attempted use, or threatened use of physical force 

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against the person of another; or (ii) is burglary, arson, or extortion, [or] involves 

the use of explosives .... 1 

18 U.S.C. § 924(e)(2)(B). 

II. U.S.S.G. § 2K2.1 

Federal firearms defendants "are subject to an enhanced Sentencing Guidelines range 

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) (internal quotation 

marks and citations omitted). 

United States Sentencing Guidelines § 2K2.1 provides, in relevant part, that if a 

defendant was a prohibited person when he or she committed the instant offense and had no prior 

convictions for crimes of violence, his or her base offense level is 14. U.S.S.G. § 2K2.l(a)(6). If 

the defendant has a single prior felony conviction for a crime of violence, then the base offense 

level is 20. U.S.S.G. § 2K2.l(a)(4)(A). If a defendant has at least two prior felony convictions 

for crimes of violence, the base offense level is 24. U.S.S.G. § 2K2.l(a)(2). 

For the purposes of the Guidelines, a "crime of violence" is 

[A ]ny 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 burglary of 

a dwelling, arson, or extortion, involves the use of explosives, or otherwise 

involves conduct that presents a serious risk of physical injury to another. 

U.S.S.G. § 4Bl.2(a).2 

1 A final clause of the statute included crimes that "otherwise involve[] conduct that presents a serious potential risk 

of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court recently declared this catchall 

"residual clause" unconstitutionally vague. Johnson v. United States, U.S._, 135 S.Ct. 2551, 2557 (2015). 

The "residual clause" is no longer considered part of the ACCA's definition of"violent felony." United States v. 

Dixon, 805 F.3d 1193, 1195 n.2 (9th Cir. 2015). The invalidation of the residual clause has required courts to 

reassess whether convictions which previously qualified as ACCA predicates under that catch-all might otherwise 

qualify under one of the ACCA's other clauses. This has been a particular concern when one or more of the prior 

convictions is for Burglary I, ORS 164.225(1), as I recently discussed in my decision in United States v. Mayer, 

Case No. 6:05-cr-60072-AA, (D. Or. Feb. 5, 2016). 

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The terms "violent felony" in the ACCA, 18 U.S.C. § 924( e )(2)(B), and "crime of 

violence" in Guidelines§ 4Bl.2, are interpreted according to the same precedent. Park, 649 F.3d 

at 1177. 

BACKGROUND 

The indictment in this case alleged that on January 13, 2014, Defendant knowingly and 

unlawfully possessed a handgun and that Defendant had at least three prior convictions for 

violent felonies. Defendant was tried before a jury and, on May 15, 2015, Defendant was 

convicted of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g). 

Defendant has three relevant prior convictions, all originating in the Jackson County 

Circuit Court: a 2001 conviction for Robbery III; a 2004 conviction for Assault III; and a 2013 

conviction for Coercion.3 

DISCUSSION 

The Government contends that each of Defendant's three convictions "has as an element 

the use, attempted use, or threatened use of physical force against the person of another," and 

that they therefore qualify as ACCA predicate convictions. Defendant asserts that his prior 

convictions do not qualify as "violent felonies" under the ACCA and that he should not be 

subject to the ACCA's fifteen-year mandatory minimum sentence. 

To determine whether a state conviction is a "violent felony" under the ACCA, courts 

must apply a "formal categorical approach." Taylor v. United States, 495 U.S. 575, 600 (1990). 

Under the categorical approach, courts "look only to the fact of conviction and the statutory 

2 The catch-all "residual clause" ofU.S.S.G. § 4B 1.2 was also invalidated by the Supreme Court's decision in 

Johnson. See United States v. Benavides, 617 F. App'x 790 (9th Cir. 2015). 3 The indictment also alleged convictions for Felony Attempt to Elude in 2003, 2004, 2005, 2007, 2010, 2011, and 

2012. At the time of Defendant's conviction in this case, these prior convictions would have been considered 

violent felonies under the "residual clause." See Sykes v. United States, 564 U.S. 1 (2011). The "residual clause" 

has now been declared unconstitutional, Johnson, 135 S.Ct. at 2557, and the Government no longer asserts that 

Defendant's convictions for Felony Attempt to Elude qualify as violent felonies under the ACCA. 

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definition of the prior offense." Id. at 602. "A violation of a state statute is categorically a 

'violent felony' under the ACCA 'only if the [state] statute's elements are the same as, or 

narrower than' those included in the ACCA's definition of 'violent felony"' United States v. 

Dixon, 805 F.3d 1193, 1195 (9th Cir. 2015) (quoting Descamps v. United States, _U.S._, 

133 S.Ct. 2276, 2281 (2013)).4 To identify the elements of a state statute, courts must consider 

both the language of the statute itself, as well as judicial opinions interpreting it. Id. (citing 

Rodriguez-Castellon v. Holder, 733 F.3d 847, 853 (9th Cir. 2013)). 

If a statute is "overbroad," meaning that it criminalizes conduct that goes beyond the 

elements of a violent felony, the court must determine if the statute is "divisible." AlmanzaArenas v. Lynch, 809 F.3d 515, 521 (9th Cir. 2015)(en bane). A statute is divisible if it sets out 

one or more elements in the alternative and some formulations of elements match the generic 

offense, while other formulations do not. Descamps, 133 S.Ct. at 2281. If a statute is 

indivisible, the court's inquiry ends because conviction under a statute that is indivisible and 

overbroad cannot serve as a predicate offense. Almanza-Arenas, 809 F.3d at 521. 

If a statute is "divisible," that is, it contains multiple, alternative elements of functionally 

separate crimes, and some of those formulations of elements constitute ACCA predicate 

offenses, while others do not, courts may apply a "modified categorical approach." Descamps, 

133 S.Ct. at 2281. The modified categorical approach permits the court to consider a limited 

range of documents such as charging instruments or plea agreements to permit the court to 

determine whether the defendant was convicted of an ACCA predicate offense. Dixon, 805 F.3d 

at 1196. 

4 In Descamps v. United States, _U.S._, 133 S.Ct. 2276, 2281 (2013), the Supreme Court used this categorical 

framework to assess whether state statute convictions for the felonies enumerated in 18 U.S.C. § 924(e)(2)(B)(ii}-

burglary, arson, and extortion-matched the "generic" crime, or "the offense as commonly understood." Courts 

apply the same analytical framework in assessing whether a state statute conviction falls within the ACCA's 

definition of having "as an element the use, attempted use, or threatened use of physical force." See, e.g., Dixon, 

805 F.3d at 1195-97. 

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Because none of Defendant's relevant convictions are enumerated in the ACCA, they 

must "have as an element the use, attempted use, or threatened use of physical force against the 

person of another" to qualify as predicate offenses. 18 U.S.C. § 924(e)(2)(B)(i). 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. Rather, the ACCA requires that the physical 

force be "violent force" or "force capable of causing physical pain or injury to another person." 

Johnson v. United States, 559 U.S. 133, 140 (2010) ("Johnson I"). Additionally, "to qualify as 

defining a violent felony, a state statute must require that the physical force be inflicted 

intentionally, as opposed to recklessly or negligently." United States v. Lawrence, 627 F.3d 

1281, 1284 (9th Cir. 2010). 

In applying the categorical approach, courts must presume that a defendant's conviction 

rests on "the least of the acts criminalized," although that analysis is not "an invitation to apply 

'legal imagination' to the state offense." Moncrieffe v. Holder, _U.S._, 133 S.Ct. 1678, 

1684-85 (2013) (citations omitted). "[T]here must be a realistic probability, not a theoretical 

possibility, that the State would apply its statute to conduct that falls outside the genenc 

definition of a crime." Id. at 1685 (internal quotation marks and citations omitted). 

Defendant also asserts that his convictions for Assault III and Coercion do not qualify as 

"crimes of violence" under the Guidelines. Courts apply the same analysis to determine if a 

prior conviction qualifies as a "crime of violence" for the purposes of U.S.S.G. § 4Bl.2. See 

United States v. Crews, 621 F.3d 849, 856 (9th Cir. 2010)("[T]he terms 'violent felony' in the 

ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), and 'crime of violence' in Guidelines section 4Bl.2, are 

interpreted according to the same precedent.")(overruled on other grounds, Johnson v. United 

States, _ U.S. _, 135 S.Ct. 2551, 2557 (2015)(the residual clause of the ACCA is 

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unconstitutionally vague)); Park, 649 F.3d at 1177 ("[W]e frequently look to cases interpreting 

the term 'violent felony' to determine whether a particular offense constitutes a 'crime of 

violence' under section 4Bl.2(a) of the Guidelines."). 

I. Robbery III 

Defendant asserts that his conviction for Robbery III does not qualify as an ACCA 

predicate offense because the level of physical force required for conviction can be "minimal" 

and does not, therefore, rise to the level of "violent force" required by the Supreme Court in 

Johnson I. 

Under Oregon law, 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 . . . the 

person uses or threatens the immediate use of physical force upon another person .... " ORS 

164.395(1).5 The Oregon Supreme Court has established that "[i]t is the additional factor of 

actual or threatened violence" that separates robbery from theft. State v. Hamilton, 348 Or. 371, 

378 (2010); see also State v. White, 346 Or. 275, 290 (2009) ("It is the concept of fear or threat 

of violence that separates robbery from mere theft."). As noted, however, the simple fact that 

ORS 164.395(1) includes the use or threatened use of physical force as an element does not 

automatically elevate a conviction for Robbery III to the level of a violent felony under the 

ACCA. Courts must look to state law to determine what level of "physical force" is required for 

5 In full, the statute provides that: 

(1) A person commits the crime ofrobbery in the third degree ifin the course of committing or 

attempting to commit theft or unauthorized use of a vehicle as defined in ORS 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 property or another person to deliver the property or to engage 

in other conduct which might aid in the commission of the theft or unauthorized use of a vehicle. 

(2) Robbery in the third degree is a Class C felony. 

ORS 164.395. 

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conviction under the state statute and then determine whether that force rises to the level of 

"violent force." Johnson I, 559 U.S. 133, 138-43 (2010); United States v. Flores-Cordero, 723 

F.3d 1085, 1087 (9th Cir. 2013). 

The Ninth Circuit has provided a number of examples of statutes that require an 

insufficient degree of physical force to qualify as categorical violent felonies. In United States v. 

Dominguez-Maroyoqui, 748 F.3d 918, 921-22 (9th Cir. 2014), the court determined that 

conviction for assaulting a federal officer in violation of 18 U.S.C. § 111(a) did not qualify as a 

"crime of violence" because the level of force required might be as little as jolting a prosecutor, 

grabbing a wildlife agent's jacket, or spitting in a mail carrier's face. Id. at 921-22 (citing United 

States v. Fernandez, 837 F.2d 1031, 1033 (11th Cir. 1988); United States v. Sommerstedt, 752 

F.2d 1494, 1495 (9th Cir. 1985); United States v. Hightower, 512 F.2d 60, 61 (5th Cir. 1975); 

United States v. Frizzi, 491F.2d1231, 1231-32 (1st Cir. 1974)). Similarly, the Ninth Circuit has 

held that resisting arrest under Arizona law does not qualify as a violent felony because a 

conviction can be sustained based on a "minor scuffle" in which the defendant kicked at the 

officers who were attempting to place her in handcuffs. Flores-Cordero, 723 F.3d at 1087-88 

(citing State v. Lee, 217 Ariz. 514, 515 (Ariz. Ct. App. 2008)). 

Turning to the specific case of ORS 164.395(1), the level of force required to sustain a 

conviction does not rise to the level of "violent force" required by Johnson I. The leading case 

on this issue is State v. Johnson, 215 Or. App. 1 (2007) ("Johnson IF'). In Johnson II, the 

defendant robbed an elderly woman of her purse and a vase of flowers. Id. at 3. The victim was 

walking up to her home carrying her purse and the vase in her left hand, while she carried her 

cane and food in her right hand. Id. As she climbed the stairs to her home, she "felt her arm 

slip" and believed that her purse was slipping. Id. When she turned to readjust the purse, she 

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discovered that it was gone and that the defendant was running away with both the purse and her 

vase of flowers. Id. Notably, the victim testified that she did not feel a tug or "much of 

anything." Id. The defendant was subsequently apprehended and convicted of Robbery III. Id. 

On appeal, the defendant challenged whether there was sufficient evidence of physical force to 

permit a reasonable jury to find him guilty of violating ORS 164.395(1 ). Id. The Oregon Court 

of Appeals upheld the defendant's conviction, holding that: 

The statute [ORS 164.395] requires that force must be used on the victim. 

However, the statute does not focus on the extent to which the victim may or may 

not have felt the force, but rather on the perpetrator's intent, while using force on 

the victim, that any resistance that the victim might offer be prevented or 

overcome. 

Id. at 5. 

Johnson II shows that a conviction under ORS 164.395(1) requires only minimal force. 

Indeed, the level of force required is so small that the victim testified that she only became aware 

of the robbery when she saw the defendant fleeing with her property. Certainly this level of 

force falls below what was involved in the "minor scuffle" discussed in Flores-Cordero or in the 

incidents described by the Ninth Circuit in Dominguez-Maroyoqui. Because Johnson II shows 

that one can realistically violate ORS 164.395(1) without the use of "violent force" or "force 

capable of causing physical pain or injury to another person," I conclude that a conviction for 

Robbery III under ORS 164.395(1) is overbroad for the purposes of the ACCA. 

I further conclude that ORS 164.395(1) is not divisible. 6 As previously noted, in order to 

be divisible, "a state statute 'must contain multiple alternative elements of functionally separate 

crimes."' Dixon, 805 F.3d at 1198 (quoting Rendon v. Holder, 764 F.3d 1077, 1085 (9th Cir. 

2014)). "A statute is not divisible merely because it is worded in the disjunctive." Id. Courts 

6 Despite my reservations, I apply the divisibility analysis as required by Descamps and Almanza-Arenas. See 

United States v. Mayer, Op. & Order at 15-20, Case No. 6:05-cr-60072-AA (D. Or. Feb. 5, 2016). 

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must determine whether the disjunctively worded portions of the statute supply alternative 

elements-which are necessary for the jury to find a defendant's guilt-or merely alternative 

means, which simply describe ways in which necessary elements of the statute might satisfied. 

Id. 

In this case, the statute contains a number of disjunctive phrases, such as "committing or 

attempting to commit" or "the person uses or threatens the immediate use of physical force." 

ORS 164.395(1). The Ninth Circuit has held that courts may examine the underlying indictment 

to determine whether these disjunctive phrases constitute elements or means. Almanza-Arenas, 

809 F.3d at 524-25. Examination of the indictment may prove useful if, as in Almanza-Arenas, 

the defendant is charged in the disjunctive, because only means, and not elements, may be so 

charged. Id. In this case, Defendant's indictment charges that he "did unlawfully and knowingly 

threaten the immediate use of physical force upon [the victim] by attempting to commit theft of 

property; to wit: property and/or money, with the intent of preventing resistance to the said 

defendant's taking of the said property .... " Gov't Ex. 1, at 9-10. 

The Ninth Circuit recognized, however, that indictments are often far from perfect. A 

prosecutor may, for instance, improperly charge elements in the disjunctive or charge a particular 

means out of convenience, and defendants often plead guilty to such improperly charged 

indictments without alteration. Almanza-Arenas, 809 F.3d at 524 n.13. The divisibility inquiry 

may not, therefore, end after looking at the indictment. Id. Courts may also refer to the state's 

model jury instructions to determine whether a disjunctive phrase separates alternative elements 

of the crime or alternative means. Dixon, 805 F.3d at 1198. The Oregon Uniform Criminal Jury 

Instructions divides the crime of Robbery III as follows: (1) the defendant committed/attempted 

to commit theft/unauthorized use of a motor vehicle; (2) in the course of committing/attempting 

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to commit the theft/unauthorized use of a motor vehicle, the defendant used/threatened the 

immediate use of physical force on the victim; (3) with the intent of (a) preventing/overcoming 

resistance to the defendant's taking of the property/retention of the property; or (b) compelling 

the owner of the property/another person to deliver the property/aid in the commission of the 

theft. Or. Unif. Cr. Jury Instructions. § 2103 (2013). 

In Dixon, the Ninth Circuit examined the California model jury instructions to determine 

whether the disjunctive phrases in the California robbery statute, CPC § 211, comprised 

alternative elements or alternative means. Dixon, 805 F.3d at 1198. In this case, as in Dixon, it 

is clear from the statute and the jury instructions that the disjunctively worded phrases within 

ORS 164.395(1) identify alternative means and not alternative elements. A jury must, for 

instance, agree that the third element of the offense is satisfied, but it need not reach an 

agreement as to whether a defendant sought to prevent resistance to the taking or to overcome 

that resistance. See Johnson II, 215 Or. App. at 6 (the jury could infer both that the defendant 

intended to use force to overcome resistance and to prevent resistance). Certainly none of the 

disjunctive phrases of ORS 164.395 would create "alternative elements of functionally separate 

crimes." 7 

7 The third element of ORS 164.395(1), which provides that a defendant must have acted intentionally, might be 

said to provide alternative elements in terms of what, precisely, a defendant must have intended by his or her use of 

force in the course of the theft. As noted, however, a robbery in which the defendant intends to overcome the 

victim's resistance to the taking of property is not "functionally separate" from a robbery in which the defendant 

intentionally uses force to compel the victim to surrender property. Furthermore, as the Supreme Court explained in 

Descamps, the purpose of the inquiry into divisibility is to determine whether alternative elements provide a formula 

for conviction that could place the conviction outside of the bounds of the generic offense. Descamps, 133 S.Ct. at 

2281. Even assuming, in arguendo, that ORS 164.395(l)(a) and (b) provide alternative elements and not simply 

alternative means, none of the alternative formulations would result in a conviction that deviates from the generic 

"violent felony." Rather, as discussed above, ORS 164.395(1) falls outside of the generic violent felony because the 

level of force required for conviction does not rise to the level of "violent force" as required by Johnson I. 

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Because ORS 164.395(1) 1s not divisible, application of the modified categorical 

approach would be inappropriate.8 Deschamps, 133 S.Ct. at 2281-82. Because ORS 164.395 is 

overbroad and indivisible, I conclude that Defendant's conviction for Robbery III is not a 

predicate "violent felony" conviction for the purposes of the ACCA. 

II. Assault III 

Defendant's second conviction was for Assault III in violation of ORS 163.165(1)(e).9 

"A person commits the crime of assault in the third degree if the person: ... While aided by 

another person actually present, intentionally or knowingly causes physical injury to another[.]" 

ORS 163.165(1)(e). Defendant contends that his conviction for Assault III cannot be considered 

a violent felony for the purposes of the ACCA or a "crime of violence" for the purposes of 

U.S.S.G. § 2K2.l and§ 4Bl.2. 

a. Causation 

The Ninth Circuit not yet determined whether Assault III qualifies as a violent felony 

under the ACCA. 10 Defendant points out that, by its plain language, ORS 163.165(1)(e) does not 

have, as an element, "the use, attempted use, or threatened use of physical force" required by the 

ACCA. Rather, the statute requires the intentional or knowing causation of physical injury. 

The Supreme Court has previously addressed whether a statute that prohibits the 

causation of injury necessarily has as an element the use or attempted use of physical force in the 

context of 18 U.S.C. § 922(g)(9). United States v. Castleman, _U.S._,134 S.Ct. 1405, 1414-

8 Even ifthe statue were divisible, Defendant's indictment alleges that he threatened the use of force with the intent 

of preventing the victim's resistance to Defendant's taking of the victim's property. Gov't Ex. 1, at 9-10. 

Defendant's conviction was therefore under ORS 164.395(1)(a). In Johnson II, the Oregon Court of Appeals held 

that the defendant's minimal use of force was sufficient to satisfy ORS 164.395(l)(a). State v. Johnson, 215 Or. 

App. 1, 5 (2007). Defendant's conviction would still not constitute an ACCA predicate offense, even under a 

divisible ORS 164.395(1). 9 The parties agree that ORS 163.165(1) is divisible. 10 The Ninth Circuit has previously held that Assault II, ORS 163.175(1)(b), qualified as a crime of violence under 

the now-defunct residual clause. United States v. Crews, 621 F .3d 849 (9th Cir. 2010). 

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15 (2014). § 922(g)(9) prohibits anyone convicted of a misdemeanor crime of domestic violence 

from possessing firearms. 18 U.S.C. § 922(g)(9). The term "misdemeanor crime of domestic 

violence" means an offense that "has, as an element, the use or attempted use of physical force, 

or the threatened use of a deadly weapon .... " 18 U.S.C. § 92l(a)(33)(A)(ii). In Castleman, the 

defendant had been convicted under Tennessee's domestic violence statute, which prohibited 

assault against family or household members. Castleman, 134 S.Ct. at 1413. Tennessee law 

defined assault in three ways: 

'(l) [i]ntentionally, knowingly or recklessly caus[ing] bodily injury to another; (2) 

[i]ntentionally or knowingly caus[ing] another to reasonably fear imminent bodily 

injury; or (3) [i]ntentionally or knowingly caus[ing] physical contact with 

another' in a manner that a 'reasonable person would regard ... as extremely 

offensive or provocative.' 

Id. at 1413 (quoting Tenn. Code Ann. § 39-13-lOl(a)). In assessing whether a statute that 

prohibits causing injury meets the requirement of having as an element, the use or attempted use 

of force, the Court held that "[i]t is impossible to cause bodily injury without applying force in 

the common-law sense," and that "the knowing or intentional application of force is a 'use' of 

force." Id. at 1414-15. I conclude, therefore, that ORS 163.165(l)(e), which, like the Tennessee 

statute in Castleman, prohibits the knowing or intentional causation of physical injury, meets the 

requirement of "having as an element, the use, attempted use, or threatened use of physical 

force." 

b. "Violent force" 

Defendant contends that the level of force required for conviction under ORS 

163.165(l)(e) falls below the level of "violent force" required by Johnson I. In Castleman, 

Supreme Court expressly declined to reach the issue of whether the causation of bodily injury 

necessarily entailed the use of"violent force." Castleman, 134 S.Ct. at 1413. 

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The statutory definition provides that "physical injury," as it is used in ORS 

163.165(l)(e), means "impairment of physical condition or substantial pain." ORS 161.015(7). 

In support of his argument, Defendant points to State ex rel. Juvenile Dep 't of Multnomah Cty. v. 

Greenwood, 107 Or. App. 678 (1991), in which the Oregon Court of Appeals found that a victim 

had experienced "substantial pain" when she "could feel [that she had] been struck" and suffered 

a "headache or pain" lasting an hour after the defendant struck her over the head with a closed 

umbrella. Id. at 680-82. Defendant argues that this level of physical force is comparable to the 

more minimal uses of force, which courts have already determined to fall below the threshold of 

"violent force," such as a "snowball [that] causes a yelp of pain, or a squeeze of the arm that 

causes a bruise." Flores v. Ashcroft, 350 F.3d 666, 670 (7th Cir. 2003). 

Defendant's argument is not persuasive. When the defendant in State ex rel. Juvenile 

struck the victim, she used a degree of force that clearly exceeded the minimal force 

contemplated in Flores. The fact that the victim felt pain from the blow for at least an hour 

indicates that the level of force also rises above the grabbing or jostling discussed in DominguezMaroyoqui, 748 F.3d at 921-22, or the "minor scuffle" described in Flores-Cordero, 723 F.3d at 

1087-88. I conclude, therefore, that a conviction under ORS 163.165(1)(e) cannot be 

categorically excluded as a violent felony on the basis of the level of force required. 

c. Culpable Mental State 

Defendant next argues that, because ORS 163.165(1)(e) encompasses "knowing" 

conduct, it cannot be a predicate conviction under the ACCA. Specifically, Defendant contends 

that all Oregon law requires is that the defendant know of the "assaultive nature" of his conduct, 

but need not "know" that he is causing injury. In support of his argument, Defendant cites State 

v. Barnes, 329 Or. 327 (1999). In Barnes, the defendant struck a security guard in the eye, 

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fracturing the bone of the guard's eye socket. Id. at 329-30. The defendant was charged and 

convicted for a "knowing" Assault II in violation of ORS 163.175(1)(a), but challenged whether 

the statute's use of "knowing" applied to the defendant's conduct or the result of that conduct. I I 

Id. at 333. The Oregon Supreme Court concluded that "the state needs to prove only that 

defendant was aware of the assaultive nature of his conduct and that his conduct in fact caused 

the victim serious physical injury." Id. at 338. Defendant contends that the phrase "assaultive 

nature of [the defendant's] conduct" is too amorphous to sustain a predicate conviction. 

I am not persuaded by Defendant's reasoning. It might be, as Defendant suggests, that a 

conviction might result from a knowingly assaultive act that results in a reckless injury, but 

Defendant does not provide an example of the statute being applied in that way. Although courts 

must presume that a defendant's conviction rests on the least of the acts criminalized, that 

analysis is not "an invitation to apply 'legal imagination' to the state offense." Moncrieffe, 133 

S.Ct. at 1684-85. "[T]here must be realistic probability, not a theoretical possibility, that the 

State would apply its statute to conduct that falls outside the generic definition of a crime." Id. at 

1685. 

Defendant also neglects the holding of Castleman. The central issue is whether a statute 

that prohibits "knowing" causation of injury can be a categorical match for a crime that has, as 

an element, the use, attempted use, or threatened use of physical force. In Castleman, as 

discussed above, the Supreme Court determined that such a statute did meet that requirement. 

Castleman, 134 S.Ct. 1414-15. 

Ultimately, it is irrelevant whether a "knowing" assault is sufficient under the ACCA 

because Defendant was convicted of an intentional assault. Under Oregon law, intentional 

11 ORS 163.l 75(1)(a) provides that "[a] person commits the crime of assault in the second degree if the person: ... 

intentionally or knowingly causes serious physical injury to another." 

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conduct applies to both the act and the result. Barnes, 329 Or. at 333 n. 4; ORS 161.085(7). 

The parties do not dispute that ORS 163.165(1) is divisible. Accordingly, the court may apply 

the modified categorical approach, which permits the sentencing court to examine certain 

documents related specifically to Defendant's conviction, such as indictments or plea 

agreements. Descamps, 133 S.Ct. at 2281. Defendant's indictment alleges that Defendant "did 

unlawfully and intentionally, while aided by another person actually present, cause physical 

injury" to the victim. Gov't Ex. 2, at 7. Defendant subsequently pleaded guilty to Assault III, 

acknowledging that the factual basis of his plea was "as alleged in the Indictment." Id. at 5. It is 

clear, therefore, that Defendant's conviction was for intentional conduct. 

Accordingly, I conclude that Defendant's conviction for Assault III in violation of ORS 

163 .165(1 )( e) is a "violent felony" for the purposes of the ACCA and a "crime of violence" for 

the purposes of the Guidelines. 

III. Coercion 

Defendant's third relevant conviction was for Coercion m violation of ORS 

163.275(1)(a). 12 The statute provides that: 

A person commits the crime of coercion when the person compels or induces 

another person to engage in conduct from which the other person has a legal right 

to abstain, or to abstain from engaging in conduct in which the other person has a 

legal right to engage, by means of instilling in the other person a fear that, if the 

other person refrains from the conduct compelled or induced or engages in 

conduct contrary to the compulsion or inducement, the actor or another will ... 

Unlawfully cause physical injury to some person. 

ORS 163.275(1)(a). Oregon courts divide the statute into three elements: the accused 

must "(1) induce a victim to abstain from doing something; that (2) the victim has a right 

to do; by (3) making the victim afraid that if he or she does it, one of the enumerated 

12 The Ninth Circuit has previously considered ORS 163.275(1)(a) in the context of the now-defunct residual clause 

and held that a conviction for intentional or knowing Coercion was a violent felony. United States v. Powell, 441 F. 

App'x 502, 504-08 (9th Cir. 2011). 

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consequences will result." State v. Pedersen, 242 Or. App. 305, 311 (2011). When, as in 

this case, the statute does not provide a mens rea, Oregon law provides that culpable 

mental state is still required and "is established only if the person acts intentionally, 

knowingly, recklessly or with criminal negligence." ORS 161.115(2). 

The Ninth Circuit has previously determined that ORS 163.275(1) is divisible.13 

United States v. Powell, 441 F. App'x 502, 505 (9th Cir. 2011) (overruled on other 

grounds, Johnson, 135 S.Ct. at 2557 (ACCA residual clause is unconstitutionally 

vague)). Accordingly, the court may examine Defendant's underlying indictment and 

plea petition to determine if Defendant was convicted of an intentional or knowing 

violation of ORS 163.275(1)(a). Id. In this case, the Indictment alleged that Defendant 

"did unlawfully and knowingly compel or induce [the victim] to engage in in conduct 

from which [the victim] had a legal right to abstain, by means of instilling in [the victim] 

a fear that if [the victim] refrained from the conduct compulsion [sic] defendant would 

unlawfully cause physical injury to [the victim]." Gov't Ex. 3, at 12. On October 23, 

2013, Defendant pleaded guilty to Coercion and acknowledged that the factual basis for 

his plea was "as alleged in the Indictment." Id. at 9. 

Defendant contends that Coercion cannot qualify as a violent felony or a crime of 

violence because it does not require an intentional threat of violent force. Once again, the 

example of Castleman is instructive. As previously noted, Castleman involved a statute 

which encompassed the knowing or intentional causation of physical injury. Castleman, 

134 S.Ct. 1413-14. The Supreme Court held that "the knowing or intentional causation 

of bodily injury necessarily involves the use of physical force." Id. at 1414. Under that 

analysis, it follows that intentionally or knowingly causing fear of physical injury 

13 The parties do not dispute that ORS 163.275(1) is divisible. 

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necessarily requires the threatened use of physical force. Cf United States v. Jennen, 596 

F.3d 594, 601-02 (9th Cir. 2010) (holding, in the context of Washington's Assault II 

statute, "that placing someone in apprehension of bodily harm with the specific intent of 

doing so while using a deadly weapon requires a 'threatened use of physical force.'"). 

Under Oregon law, Coercion requires that the defendant cause another to feel fear 

of physical injury and Defendant in this case was convicted for a knowing violation of 

ORS 163.275(1)(a). I conclude, therefore, that Defendant was convicted of knowingly 

threatening the use of physical force. 14 

Defendant further argues that the statute does not expressly apply a culpable 

mental state to the requirement that the victim be made to fear injury. Defendant 

contends that the statute might be applied in such a way that a person might knowingly or 

intentionally cause the victim to feel fear that he or she will suffer a reckless injury. 

Defendant does not, however, provide an example of ORS 163.275(1)(a) being applied in 

that manner. As previously noted, the Supreme Court has forbidden courts to apply 

"legal imagination" to state offenses. Moncrieffe, 133 S.Ct. at 1684-85. Furthermore, 

Oregon law provides that if an offense "prescribes a culpable mental state, but does not 

specify the elements to which it applies, the prescribed culpable mental state applies to 

each material element of the offense that necessarily requires a culpable mental state." 

ORS 161.115(1). In the present case, the culpable mental state of "knowing" therefore 

applies to each of the elements of the offense. 

14 In the context of the residual clause, the Ninth Circuit has held that "knowing" conduct was sufficiently 

purposeful to qualify as intentional for the purposes of the ACCA. Crews, 621 F.3d at 856-57 ("We have trouble 

imaging a circumstance in which a person could knowingly use a dangerous weapon to assault another person 

without intending to do so."). 

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Accordingly, I conclude that Defendant's conviction for Coercion in violation of 

ORS 163.275(1)(a) qualifies as a "violent felony" under the ACCA and a "crime of 

violence" under the Guidelines. 

IV. Punishable For a Term Exceeding One Year 

The ACCA and the Guidelines require that a predicate felony conviction be for a 

"crime punishable for a term exceeding one year[.]" 18 U.S.C. § 924(e)(2)(B); see also 

U.S.S.G. § 4Bl.2(a) ("The term 'crime of violence' means any offense under federal or 

state law punishable by imprisonment for a term exceeding one year[.]"). Defendant 

contends that his convictions for Robbery III and Assault III do not meet that threshold 

requirement. 

Robbery III and Assault III are designated as "Class C" felonies. ORS 164.395(2) 

(Robbery III); ORS 163.165(2)(a) (Assault III). The maximum term of imprisonment for 

a Class C felony is five years. ORS 161.605(3). Defendant contends that the court 

cannot rely on the maximum statutory term of imprisonment in determining whether a 

conviction meets the threshold requirement, but must look instead to Oregon's sentencing 

grid and guidelines. 

The Ninth Circuit has held that, for the purposes of determining predicate 

convictions, courts must use the "potential maximum sentence defined by the applicable 

state criminal statute, not the maximum sentence that could have been imposed against 

the particular defendant for his commission of the crime according to the state's 

sentencing guidelines." United States v. Murillo, 422 F.3d 1152, 1155 (9th Cir. 2005); 

see also Crews, 621 F.3d at 852 (Class B felony met the threshold requirement for a 

"crime of violence" because ORS 161.605(2) provides a ten-year maximum sentence). 

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Defendant contends that this precedent has been superseded by the Supreme Court's 

decisions in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) and Moncrieffe, 133 

S.Ct. 1678 (2013) and, as Defendant points out, other Circuits have held that sentencing 

courts must look to the state sentencing guidelines to determine whether a conviction 

meets the threshold sentencing requirement. See, e.g., United States v. Brooks, 751 F.3d 

1204, 1211 (10th Cir. 2014); United States v. Haltiwanger, 637 F.3d 881, 884 (8th Cir. 

2011). 

The Ninth Circuit has recently re-affirmed, however, that Murillo "has not been 

abrogated or overruled and remains binding law in this circuit." United States v. FletesRamos, 612 F. App'x 484, 485 (9th Cir. 2015). Courts within the Ninth Circuit must 

therefore apply the holding of Murillo and look to the statutory maximum in determining 

whether a conviction is a qualifying "violent felony" or "crime of violence," rather than 

to the state sentencing guidelines. 

Each of Defendant's prior convictions is for a Class C felony. Under ORS 

161.605(3), a Class C felony is punishable by a maximum of five years imprisonment. 

Defendant's prior convictions are therefore for crimes punishably by imprisonment for a 

term exceeding one year. 

V. Defendant's Remaining Objections 

a. The Presentence Report 

Defendant objects to the inclusion of certain information in his Presentence Report 

("PSR") and asks that the information be stricken and, in places, replaced with language of 

Defendant's choosing. 

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The Federal Rules of Criminal Procedure provide that at the time of sentencing, the court 

"must-for any disputed portion of the presentence report or other controverted matter-rule on 

the dispute or determine that a ruling is unnecessary either because the matter will not affect 

sentencing, or because the court will not consider the matter in sentencings." Fed. R. Crim. P. 

32(i)(3)(B). 

Defendant's objections principally deal with the inclusion of information that Defendant 

believes the Bureau of Prisons will consider when determining his eligibility for work 

assignments or programs. Only a handful of Defendant's objections actually address issues that 

would affect his sentence. 

First, Defendant asks that the court strike paragraph 20 of the PSR, which states that 

Defendant will not receive a reduction to his base offense level for acceptance of responsibility 

pursuant to U.S.S.G. § 3El.1 because he denied the factual elements of his guilt. Defendant 

contends that he would have entered a guilty plea if the Government had been willing to forego 

seeking the ACCA mandatory minimum. 15 Defendant contends that, because of his hypothetical 

willingness to plead guilty under certain circumstances, he should receive the benefit of a threelevel reduction to his base offense level to compensate for the loss of a comparable reduction he 

might have received for acceptance of responsibility. As Defendant concedes that he did 

proceed to trial and that he is not entitled to a reduction for acceptance of responsibility, I decline 

to strike paragraph 20. 

Next, Defendant objects, in general terms, to the calculation of his base offense level as 

set forth in paragraphs 22-102. Defendant contends that the calculations are either "without a 

factual basis, cruel, unusual and disproportional to the status offense crime actually proved at 

15 As previously noted, Defendant had a substantial number of convictions for felony Attempt to Elude. Felony 

Attempt to Elude was considered a "violent felony" at the time of Defendant's trial and conviction in this case. 

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trial, based on the red herring of an accidental shooting and based on 'misdemeanor' felonies ... 

. " Defendant's objections appear to be based on his preferred narrative versions of a number of 

his underlying convictions. As I have determined that Defendant does not have the required 

number of predicate convictions to qualify for the ACCA mandatory minimum, I will strike 

those portions of paragraphs 28, 66, and 86 which state that Defendant is to be sentenced under 

the ACCA. I decline to strike the other paragraphs to which Defendant has raised objections. 

Finally, the PSR recommends a two-level increase in Defendant's base offense level 

pursuant to U.S.S.G. § 2K2.l(b)(4)(A) because the firearm that Defendant unlawfully possessed 

was stolen. Defendant objects to the two-level increase because the Government did not allege 

or prove at trial that Defendant knowingly possessed a stolen firearm. Defendant does not 

dispute that the firearm was in fact stolen. The Guidelines do not require that a defendant know 

that the unlawfully possessed firearm is stolen and the Ninth Circuit has held that this "strict 

liability" sentence enhancement is constitutional. United States v. Goodell, 990 F.2d 497, 498-

501 (9th Cir. 1993); see also United States v. Herring, 143 F. App'x 18, 19 (9th Cir. 2005) 

("Since Herring does not dispute that the gun was in fact stolen, the enhancement by its terms 

applies whether or not he knew that fact."). Accordingly, I decline to strike the two-level 

enhancement for unlawfully possessing a stolen firearm. 

I will determine Defendant's base offense level at the time of sentencing. 

b. Brady/Giglio 

Defendant renews his objection to an alleged Brady/Giglio violation that Defendant 

contends the Government committed during the trial. 16 During the trial, I denied Defendant's 

16 In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that prosecutors have a duty to divulge to 

the defense before trial "evidence favorable to [the] accused." In Giglio v. United States, 405 U.S. 150, 154-55 

(1972), the Supreme Court held that prosecutors must disclose to the defense any "understanding or agreement as to 

a future prosecution" that the government has made with a material witness. 

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motion to dismiss this case based on the alleged Brady/Giglio violation. Defendant now requests 

that the court sanction the Government by refusing to impose the ACCA mandatory minimum 

sentence. As I have determined that Defendant does not have the requisite three predicate 

convictions to qualify for the ACCA mandatory minimum sentence, it is not necessary to address 

whether such a sanction would be permissible or, if it was permissible, whether it should be 

imposed. It is similarly unnecessary to address Defendant's assertion that the ACCA mandatory 

minimum sentence constitutes cruel and unusual punishment in violation of the Eighth 

Amendment. 17 

CONCLUSION 

Defendant does not have the required three predicate convictions for "violent felonies" 

under the ACCA and shall not be subject to the mandatory minimum sentence provided by 18 

U.S.C. § 924(e). Defendant's felony convictions for Assault III and Coercion shall be 

considered "crimes of violence" for the purpose of determining his base offense level under the 

Guidelines. 

ANN AIKEN 

District Judge 

17 The Ninth Circuit has expressly held that a fifteen-year sentence under the ACCA does not violate the Eighth 

Amendment. United States v. Baker, 850 F.2d 1365, 1372 (9th Cir. 1988). 

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