Saturday, July 01, 2017

Case o' The Week: Strickland Effective Assistance of Counsel - Purse Snatching Does not a C.O.V. Make

  For Judge Owens, getting to a guideline answer is as complicated as the calculations based upon the Staff of Ra.

 (Though for Indy -- and Judge Kozinski -- getting it right seems pretty easy).
United States v. Strickland, 2017 WL 2723926 (9th Cir. June 26, 2017), decision available here.

Players: Decision by Judge Kozinski, joined by Judges Fisher and Watford. Admirable win for R&W Attorney Elizabeth Daily and Chief Deputy FPD Steve Sady, District of Oregon FPD.  

Facts: Strickland pleaded guilty to being a felon in possession of a gun. Id. at *1. That § 922(g)(1) offense made him an Armed Career Criminal, in the view of the district court. Id. 
  Strickland objected to the ACCA-predicate characterization of one of the three priors – an Oregon third degree robbery – arguing that it did not qualify as a “Crime of Violence” for the ACCA. Id.

Issue(s): “He appeals, arguing that he should be resentenced.” Id. “The government argues that we should nevertheless affirm Strickland’s sentence because his third degree robbery conviction is a predicate offense under the force clause. We thus examine whether the state offense satisfies the force clause’s requirements.” Id. “Our question is whether the term ‘physical force’ as used in the Oregon statue is coextensive with the term’s use in the ACCA.” Id. at *2.

Held:We hold that it is not, so a conviction for third degree robbery under Oregon law is not a predicate offense under the ACCA. State cases show that Oregon doesn’t require physically violent force . . . [Oregon] state cases demonstrate that state courts don’t interpret the Oregon statute as requiring the use or threatened use of violent force. Therefore, Oregon’s third degree robbery statute is not a categorical match to the force clause.Id. at *2.

Of Note: Oregon purse snatching does not a violent offense make. So says Judge Kozinski in Strickland. Id. at *2. And, last year, so said Judge Watford in United States v. Parnell,818 F.3d 974, 979 (9th Cir. 2016). (Albeit a little reluctantly -- see id. at 982, Watford., J., concurring: “I join the court's opinion in full, although I confess I was initially inclined to affirm the sentence. The notion that robbery is not a “violent felony,” as that term is defined in the Armed Career Criminal Act (ACCA), strikes me as counterintuitive to say the least. Holding that armed robbery doesn't qualify as a violent felony seems even more absurd. But, as the court's opinion persuasively explains, that conclusion is compelled by two oddities of Massachusetts law.”)
  Interesting that Judge Watford was, at one time, a Ninth Circuit clerk, working for his colleague that is now the author of the Strickland decision.
  For a big Circuit, it is a small world.

How to Use: Johnson warrior Liz Daily has observed that the Oregon third degree robbery statute is similar to that of many other states. 
  The Strickland win certainly undermines the C.O.V. dangers of Oregon Robbery II (ORS 164.405(1)(b), and gives us a welcome boost attacking the robbery convictions of other states as well.
For Further Reading: Last week Judge Owens complained that guideline sentencing is “more complicated than reconstructing the Staff of Ra in the Map Room to locate the Well of Souls.” United States v. Perez-Silvan, 2017 WL 2784971, *7 (9th Cir. June 28, 2017)

   An apt analogy, the Federal Sentencing Guidelines and the Well of Souls: dank places infested with dangers, threatening permanent entombment with the slightest misstep.
  Judge Owens continues to “urge the Commission to simplify the Guidelines.” Id. Simplification, however, can be dangerous business. At least one prominent Sentencing Commissioner seems keen on simplifying the guidelines to the point of becoming presumptive (read, “mandatory.”) See Remarks of Judge William Pryor, May 17, 2017 at Scalia Law School, George Mason University, available here.

Image of Indy with the Staff of Ra. identifying the Well of Souls from

Image of Indy in the Well of Souls from 

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


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