Argued
and Submitted May 11, 2017 Seattle, Washington
Appeal
from the United States District Court for the Western
District of Washington, D.C. No. 2:15-cr-00353-MJP-1 Marsha
J. Pechman, District Judge, Presiding
Vanessa Pai-Thompson (argued), Assistant Federal Public
Defender, Federal Public Defender's Office, Seattle,
Washington, for Defendant-Appellant.
Michael Symington Morgan (argued), Assistant United States
Attorney; Annette L. Hayes, United States Attorney; United
States Attorney; United States Attorney's Office,
Seattle, Washington; for Plaintiff-Appellee.
Before: M. Margaret McKeown, Carlos T. Bea, and N. Randy
Smith, Circuit Judges.
SUMMARY
[*]
Criminal
Law
The
panel vacated a sentence for being a felon in possession of a
firearm, and remanded for resentencing, in a case in which
the district court treated the defendant's prior
conviction under Washington's second-degree assault
statute, Revised Code of Washington section 9A.36.021, as a
"crime of violence" under the United States
Sentencing Guidelines.
The
panel held that United States v. Jennen, 596 F.3d
594 (9th Cir. 2010), in which this court affirmed a sentence
when the district court had treated a prior conviction under
section 9A.36.021(1)(c) as a crime of violence, has been
effectively overruled by the Supreme Court's decisions in
Descamps v. United States, 133 S.Ct. 2276 (2013),
and Mathis v. United States, 136 S.Ct. 2243 (2016).
Applying United States v. Robinson, 869 F.3d 933
(9th Cir. 2017), the panel wrote that section 9A.36.021
criminalizes conduct that does not meet the generic federal
definition of crime of violence and is not divisible. The
panel concluded that the district court therefore erred in
applying the modified categorical approach and in determining
that the defendant's prior conviction constituted a crime
of violence, which caused the district court to miscalculate
the defendant's base offense level and Guidelines range.
OPINION
BEA,
CIRCUIT JUDGE:
Raqwon
Slade ("Slade") appeals his sentence for being a
felon in possession of a firearm. Slade's sentence was
enhanced because the district court treated his prior
conviction under Washington's second-degree assault
statute, Revised Code of Washington section 9A.36.021
("section 9A.36.021"), as a "crime of
violence" under the United States Sentencing Guidelines
("Guidelines"). State court documents from the
prior conviction demonstrated that Slade had pleaded guilty
to violating section 9A.36.021(1)(c), assault with a deadly
weapon. We reverse.
This
case is controlled by our recent decision in United
States v. Robinson, 869 F.3d 933 (9th Cir. 2017), in
which we held that section 9A.36.021 is not a crime of
violence under the Guidelines. 869 F.3d at 941. However,
before we can apply Robinson, we must first conclude
that United States v. Jennen, 596 F.3d 594 (9th Cir.
2010), in which we affirmed a sentence when the district
court had treated the defendant's prior conviction under
section 9A.36.021(1)(c) as a crime of violence, id.
at 601-02, has been effectively overruled by the Supreme
Court's subsequent decisions in Descamps v. United
States, 133 S.Ct. 2276 (2013), and Mathis v. United
States, 136 S.Ct. 2243 (2016).
I.
Factual and Procedural Background
Slade
had a seizure and was treated by firefighters. King County
Sheriff's deputies that were dispatched to assist the
firefighters found a loaded pistol in Slade's pocket.
Slade, a convicted felon, was subsequently charged with being
a felon in possession ...