Sunday, December 31, 2017

Case o' The Week: Ninth Disinclined on Second Werle - Werle and Taylor / Johnson Analysis, "Crimes of Violence" and USSG Sec. 2K2.1

Batting .50 saves client 40. United States v. Justin Werle, 2017 WL 6346659 (9th Cir. Dec. 13, 2017), decision available here.
 Players: Per curiam decision by Judges O’Scannlain, Tallman, and Watford. Dogged appellate advocacy by ED WA AFPD Matt Campbell.

Facts: Werle pled guilty to § 922(g)(1), and possession of an unregistered gun. Id. at *1. The district court found qualifying prior crimes of violence, and deemed Werle subject to the ACCA’s fifteen-year mand-min. Id. 
  In the Ninth’s first Werle, a different panel held that a “riot” prior was not categorically a violent felony (hence no ACCA!), and remanded. Id., see also blog entry here. 
  On remand, the district court hit Werle with a guideline increase under USSG § 2K2.1(a). Id. The court found that prior Washington convictions for “felony harassment via a threat to kill” were crimes of violence, increased the offense level, and imposed a custodial term of 140 months. Id. at *15.

Issue(s): “Werle argues that the district court erred in concluding that his convictions for felony harassment under § 9A.46.020(2)(b)(ii) were crimes of violence.” Id. at *1. “Werle argues that § 9A.46.020(2)(b)(ii) is overbroad because
  (1) it lacks the requisite mens rea to constitute a threatened use of force,
  (2) it includes threats to kill in the distant future, and
  (3) it does not necessarily require threatened violent force.” Id. at *2.

Held: (1): “Werle’s argument is unavailing because § 4B1.2(a)(1) only requires that the state crime has as “an element . . . the threatened use of physical force.” (emphasis added). It is clear that the first element of a conviction under § 9A.46.020(2)(b)(ii)—a knowing threat of intent to kill someone—requires a sufficient mens rea, and so that element by itself may render the conviction a crime of violence. That other elements of the statute may be satisfied with a lower mens rea adds nothing to our inquiry under § 4B1.2(a)(1), because requiring the state to prove additional elements only narrows the reach of the crime.” Id. at *3.
  (2) “[W]e find no support for any such immediacy requirement in the language of § 4B1.2(a)(1).” “[Section] 4B1.2(a)(1) does not contain the ‘substantial risk’ language used in § 16(b). Rather, § 4B1.2(a)(1) largely mirrors the language of § 16(a) and only requires a ‘threatened use of physical force,’ regardless of any substantial risk that the force will actually occur . . . . Id. at *3.
  (3) “Werle argues that a threat to kill does not necessarily include a threatened use of violent physical force, as required by Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), because one could kill someone via the application of poison or other non-forceful means. Werle may have luck with this argument in other circuits . . . but we have categorically rejected it . . . .. By threatening to kill, Werle necessarily threatened violent physical force.” Id. at *4 (citations omitted).

Of Note: Werle (I & II) are poster children for the complexity of the Taylor analysis. As noted above, Werle I was a big defense win. See 815 F.3d. 614 (9th Cir. 2016). In Werle I, the Ninth explained that “felony riot” was not a violent felony triggering the ACCA under Johnson. In Werle II, by contrast, the Ninth is looking at a different prior, and different definition for “crime of violence”: the definition used by USSG § 2K2.1. See Werle II, 2017 WL 6346659 at *3. Different prior, different definition, different outcome. Before despairing at this complexity, consider the results: Taylor and Johnson ultimately meant over three-years knocked off of Mr. Werle’s ACCA term. Well worth the “probe into the undergrowth of [the] . . . convictions,” as this panel put it. Id. at *2.

How to Use: We just touted the reverse use of the ACCA / Guidelines definitional whipsaw, in Rick Allen Jones. See blog entry here
  In Werle II, however, the Court rejects that approach in the context of § 16(b) and USSG § 4B1.2(a)(1) definitions. Id. at *3. 
  Tricky business, this: take care in the definitional analogues used when attacking a “violent crime” or “crime of violence” definition.
For Further Reading: 2018 may be a year of change, for the Ninth.
  Seven of twenty-nine (24%) of Ninth Circuit judgeships are now or will be open in 2018, awaiting appointments by President Trump and Senate confirmations. See Ninth Circuit report here

Steven Kalar, Federal Public Defender, Northern District of California. Website at


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