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United States v. Crews

July 23, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
UHURU NAVANDA CREWS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Oregon Ancer L. Haggerty, Senior District Judge, Presiding, D.C. No. 3:05-cr-00355-HA-1.

The opinion of the court was delivered by: M. Smith, Circuit Judge

FOR PUBLICATION

Argued and Submitted March 3, 2010 -- Portland, Oregon

Before: Richard A. Paez, Richard C. Tallman, and Milan D. Smith, Jr., Circuit Judges.

OPINION

We address whether a conviction under Oregon's second-degree assault statute, Or. Rev. Stat. § 163.175(1)(b), is a "crime of violence" under the Sentencing Guidelines' "residual clause," U.S. Sentencing Guidelines Manual § 4B1.2(a)(2) (2008) (hereinafter U.S.S.G.). We hold that it is, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 13, 2009, Uhuru Navanda Crews pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court assigned Crews a base offense level of twenty-four, based on two prior convictions. See U.S.S.G. § 2K2.1(a)(2). Pursuant to section 2K2.1(a)(2), a defendant is assigned a base offense level of twenty-four if he has previously sustained "at least two felony convictions of either a crime of violence or a controlled substance offense." Id.

Crews concedes that his 1998 conviction for delivery of a controlled substance under Oregon Revised Statutes section 475.840*fn1 constitutes a "controlled substance offense." The district court also determined that Crews's 1990 conviction under Oregon's second-degree assault statute, Or. Rev. Stat. § 163.175(1)(b), is a "crime of violence" under Guidelines section 4B1.2(a).*fn2 On appeal, Crews challenges whether second-degree assault, as defined by section 163.175(1)(b), is a "crime of violence."

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo whether a conviction constitutes a "crime of violence" under the Sentencing Guidelines. United States v. Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir. 2005).

DISCUSSION

[1] Section 2K2.1 of the Guidelines defines "crime of violence" as that term is defined in the career offender Guideline, section 4B1.2. U.S.S.G. § 2K2.1 cmt. n.1. Section 4B1.2, in turn, sets forth three different provisions defining the term "crime of violence." Id. § 4B1.2(a)(1), (2) & cmt. n.1. The provision Crews focuses on, and that which we find most germane to whether subsection (1)(b) of Oregon's second-degree assault statute constitutes a "crime of violence," is Guidelines section 4B1.2(a)(2).*fn3 Section 4B1.2(a)(2) defines a "crime of violence" as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that ...


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