United States v. Kenneth Door


FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-30165 Plaintiff-Appellee, D.C. No. v. 3:12-cr-05126-RBL-1 KENNETH RANDALE DOOR, Defendant-Appellant. OPINION Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding Argued and Submitted December 7, 2018 Seattle, Washington Filed March 12, 2019 Before: Sidney R. Thomas, Chief Judge, and M. Margaret McKeown and Morgan Christen, Circuit Judges. Opinion by Judge Christen 2 UNITED STATES V. DOOR SUMMARY* Criminal Law Vacating a sentence and remanding for resentencing, the panel held that, in setting the defendant’s base offense level under U.S.S.G. § 2K2.1(a)(2), his prior Washington State conviction for felony harassment qualified as a crime of violence but his prior conviction for second degree assault did not. Consistent with United States v. Werle, 877 F.3d 879 (9th Cir. 2017), the panel held that the defendant’s 1997 conviction for felony harassment, in violation of Wash. Rev. Code §§ 9A.46.020(1)(a)(i) and (2)(B), qualified as a crime of violence, as defined in U.S.S.G. § 4B1.2. Applying the categorical approach, the panel held that the conviction qualified as a crime of violence under § 4B1.2(a)’s force clause because it necessarily entailed the threatened use of violent physical force. The panel held that the district court erred in concluding that the defendant’s 2002 conviction for second degree assault, in violation of Wash. Rev. Code § 9A.36.021(1)(c), qualified as a crime of violence. Under United States v. Robinson, 869 F.3d 933 (9th Cir. 2017), the conviction did not qualify under the force clause of § 4B1.2(a). The panel held that second degree assault also did not qualify as a crime of violence under § 4B1.2(a)’s residual clause because the offense, in the ordinary case, does not present a serious * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. DOOR 3 potential risk of physical injury to another, and it is not similar in kind to the crimes listed in the enumerated offenses clause. The panel therefore vacated the sentence and remanded for resentencing. The panel addressed other issues in a concurrently-filed memorandum disposition. COUNSEL Carlton Gunn (argued), Pasadena, California, for Defendant- Appellant. Helen J. Brunner (argued), First Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney’s Office, Seattle, Washington; for Plaintiff- Appellee. OPINION CHRISTEN, Circuit Judge: Defendant Kenneth Randale Door appeals the sentence the district court imposed after he was convicted of several offenses in 2014. At his 2017 sentencing hearing, the district court determined that Door’s base offense level should be 24 pursuant to United States Sentencing Guideline (U.S.S.G.) § 2K2.1(a)(2) after concluding that Door’s prior Washington state convictions for second-degree assault and felony harassment qualify as crimes of violence. Door contends these offenses do not constitute crimes of violence and that his offense level was thus calculated incorrectly. Consistent 4 UNITED STATES V. DOOR with United States ...

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