US v.
Shelby, No. 18-35515 (9-19-19)(Hurwitz w/Murguia
& Zipps). The 9th follows the categorical approach mandated by
the Supreme Court in holding that first-degree armed burglary under Or. Rev.
Stat. 164.415 is not a violent crime for ACCA purposes. The 9th has
held that this statute is not a COV for ACCA under US v. Strickland, 860 F.3d 1224 (9th Cir. 2017), and
that it survives Stokeling v. US, 139
S. Ct 544 (2019). In Stokeling, the
Court held that there was no distinction between substantial and minimal
physical force. Stokeling does
require some force. It does not apply when there is no physical force.
The 9th in Ward v. US, No.
17-35563, slip op. at 9 (9th Cir. Sept. 3, 2019) noted that
snatchings where there is no resistance as the robbery happens so fast is
not sufficient to fall under ACCA’s force clause. The state statute here is
thus overbroad, as it allows for such no resistance snatchings, and thus the
conviction is not a COV. This is true even if there is a deadly weapon. It
could be covert. The statute is also not divisible. Since the district
court found it to be divisible, and sentenced for force, the sentence is reversed
and remanded for resentencing.
Congrats to AFPD Elizabeth Daily of FPD Oregon
(Portland).
The decision is here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/19/18-35515.pdf
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