Case o' The Week: "Same either way" not OK - Vederoff and Post-Johnson status of Washington (non)-"Crimes of Violence"

  A downward variance to 60 months, or an upward variance to five years – mirror image, same result, yes?

  

Well, actually, no.

United States v. Vederoff, 2019 WL 4706734(9th Cir. Feb. 1, 2019), decision available here.

Players: Decision by District Judge Gaitan, WD Mo., joined by Judges McKeown and Friedland.

  Big win for AFPDs Alan Zarky and Mohammad Ali Hamoudi, of the Federal Defender for the W.D. of Washington.

Facts: Vederoff plead guilty to a § 922(g) charge pursuant to a plea agreement. Id. at *1. In his plea agreement, he admitted to Washington convictions for second-degree assault, and second-degree murder. Id.  The PSR set his offense level at 24, claiming both of those priors were “crime(s) of violence” that increased the range. Id. 

  The district court rejected Verderoff’s objections to that calculation, but varied downward from the PSR’s calculated range, and imposed a five-year sentence. Id. at *2. The DJ explained that it was a downward variance from a PSR range that was too high, or an upward variance from the defendant’s calculations (without the crimes of violence) that were too low. Id. 

  Vederoff (intriguingly) appealed, despite a plea agreement (an enlightened appellate-waiver policy that merits a look for ND Cal).

Issue(s): “[Vederoff] challenges the district court’s findings that his prior convictions for second-degree assault and second-degree murder under Washington law qualify as ‘crimes of violence’ under section 4B1.2(a) of the United States Sentencing Guidelines.” Id. at *1.

Held: “Our review of the common law, the Model Penal Code, treatises, and the laws of the other states, . . . compels the conclusion that generic aggravated assault does not include assault with intent to commit a felony.” Id. at *4 (citations omitted). “[S]econd-degree assault under Washington law is not a ‘crime of violence’ under U.S.S.G. § 4B1.2.” Id. at *5.

  “Washington’s second-degree murder statute is . . . overbroad when compared with the definition of generic murder, as well as the Model Penal Code and the laws of other jurisdictions.” Id. at *6. “Washington courts have concluded that the statute is indivisible, and we adopt their interpretation here.” Id. “[S]econd-degree murder under Washington law is not a crime of violence under the enumerated clause of U.S.S.G. § 4B1.2(a)(2).” Id. at *7.

  “Having now determined that the proper Guideline range would be 30 to 37 months, we cannot say that the district court’s incorrect calculation of the proper Guideline range was harmless.” Id. at *8.

Of Note: In this case, it drove the D.J. “absolutely nuts as a trial judge to think that things like murder and assault with a deadly weapon could be conceived as not being crimes of violence.” Id. at *2. He tried a belt-and-suspenders “appellate insurance” policy – the District Judge assured us that 60 months was the right sentence, and it could be deemed either an upward or downward variance from the correct guideline range, depending on the outcome of the Johnson analysis.

   The Ninth was unpersuaded. 

  The appellate court couldn’t deem the five-year term as “harmless,” because it wasn’t clear why the sentence was so high above the (correct) guideline calculations. Id. at *8. 

  Vederoff is the latest (welcome) example of District Court / Appellate cat-and-mouse, as D.J.s try to immunize their sentences from categorical attack -- and the Ninth reminds us who ultimately calls shots. See, e.g. Gardenhire blog here. 

How to Use: Visiting, out-of-circuit, Senior D.J.s making big Ninth law can be troubling (except when we like the outcome). Vederoff falls squarely into that exception -- the Hon. Judge Gaitan is always welcome West. 

  In Vederoff, Judge Gaitan pens a particularly thoughtful analysis of highly technical categorical challenges. For anyone working through a post-Johnson categorical analysis (and who isn’t?), it is a well-written opinion that merits a close read – useful cites abound. See, e.g., id. at *6 (“Facial overbreadth like that here . . . is a basis for finding a statute overbroad.”)

                                               

For Further Reading: The Sentencing Commission is 28% staffed. See USSG Commissioner’s page here. (Not that we're complaining). 

   The President’s 2018 Commission nominees? Sent back from the Senate last January. See e.g. Nomination Report on Judge Henry Hudson, available here. (Not that we’re in any rush . . . )

Image of Escher’s “Drawing Hands” from https://en.wikipedia.org/wiki/File:DrawingHands.jpg

Image of "belt and suspenders" from https://www.jjsuspenders.com/blogs/suspenders/46554561-why-you-should-never-wear-suspenders-with-a-belt  

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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