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United States v. Slade

United States Court of Appeals, Ninth Circuit

October 10, 2017

United States of America, Plaintiff-Appellee,
v.
Raqwon Slade, Defendant-Appellant.

          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 ...


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