Tuesday, September 24, 2019

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:




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