Sunday, March 06, 2016

Case o' The Week: Ninth Gives Taylor Sentencing a Werle - ACCA Violent Felonies in United States v. Werle

  Complicated, complex, tricky, technical – wonderful.
  The Ninth’s latest Taylor decision is a riot.
United States v. Werle, 2015 WL 828132 (9th Cir. Mar. 3, 2016), decision available here.

 Players: Decision by N.D. Cal Senior (and former Chief) D.J. Claudia Wilken, joined by Judges Fletcher and Fisher. Big win for ED Cal AFPD Matthew Campbell.

Facts: Werle entered a conditional plea to being a felon in possession, after a suppression hearing. Id. at *1. The PSR claimed Werle fell within the ACCA, triggering a fifteen-year mandatory minimum sentence. Id. Werle had a number of convictions for Washington State “felony riot.” Without those riot priors he would have not qualified for the ACCA mand-min. Id.

Over defense objection the district court held that the riot statute was overinclusive, but divisible. Id. The district court then conducted a modified categorical analysis, examined charging docs and plea agreements from the riot priors, and concluded that they qualified as ACCA predicate “violent felonies.” Id. Werle appealed.

Issue(s): “In this case, we consider whether a conviction for felony riot under a Washington state statute is a violent felony for purposes of the ACCA sentencing enhancement.” Id. at *1.

[Ed. Note: Specifically, the issue was whether the riot prior qualified as a ‘violent felony’ under the “force” clause of the ACCA, 18 U.S.C. § 924(e)(2)(B).]

Held: “We hold that is not, because it is overinclusive indivisible with respect to the term, ‘force.’ Accordingly, we reverse and remand for resentencing.” Id.

Of Note: “Limited, limited, limited” – sweet music to our ears. Judge Wilken carefully explains that the scope of Taylor categorical inquiry is “limited.” Id. at *3. The application of the modified categorical approach is “even more limited.” Id.

Why is the government so constrained, when it tries to establish predicates for sentencing enhancements? The Court explains these limitations are “rooted in the ACCA’s statutory language, the Sixth Amendment’s requirement that facts that increase a defendant’s maximum penalty be proven to a jury beyond a reasonable doubt, and practical concerns.” Id. Judge Wilken then goes on to elaborate on why each of those concerns mandate the “limited” inquiry for the Taylor analysis.

The paragraph at *3, headnote [9] of Werle is one of the cleanest, most-accessible explanations of how -- and why -- Taylor sentencing law works as it does: well worth a close read and heavy citation (or cribbing wholesale into the Johnson Section 2255 motions being frantically drafted in the Ninth).

How to Use: The core holding of Werle is this: if a statute is overinclusive as to any element, and indivisible as to that element, there is no modified categorical analysis. Id. at *4. Here, everyone agreed that the statute was both overinclusive AND divisible as to one element of the riot statute. Id. at *4 (person or property target of force). However, the Ninth holds that the statute was also overinclusive and indivisible as to another element (the degree of force). Id. at *5. Use Werle to force the government through the many, many hoops necessary before modified-categorical-land.

(And don’t overlook the Court’s rejection of the government’s argument regarding “armed with a deadly weapon” – analysis ripe for exportation to other “armed” felonies in our Johnson saga. Id. at *5) (“[T]he fact that an individual is armed does not necessarily mean that he or she has used the weapon in any way.”)          
For Further Reading: The San Francisco hearings of the CJA Committee concluded last week. All written testimony from these hearings can now be found here

Videos of the testimony will be up soon –make a point to watch Panel Six (five fearless CJA Reps, very literally “speaking truth to power.”) 

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


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