Submitted December 5, 2017 [*] Seattle, Washington
from the United States District Court No. 2:14-cr-00041-JLQ-1
for the Eastern District of Washington Justin L. Quackenbush,
Senior District Judge, Presiding
Matthew Campbell, Federal Defenders of Eastern Washington
& Idaho, Spokane, Washington, for Defendant-Appellant.
Michael C. Ormsby, United States Attorney; Timothy J. Ohms,
Assistant United States Attorney; United States
Attorney's Office, Spokane, Washington; for
Before: Diarmuid F. O'Scannlain, Richard C. Tallman, and
Paul J. Watford, Circuit Judges.
panel affirmed the district court's imposition of a
sentence enhancement under U.S.S.G. § 2K2.1(a) based on
the defendant's prior convictions for felony harassment
under Washington Revised Code § 9A.46.020(2)(b)(ii).
panel held that because a conviction under §
9A.46.020(2)(b)(ii) necessarily includes a "threatened
use of physical force against the person of another, " a
conviction under that section is categorically a crime of
violence under § 2K2.1(a)(1).
decide whether a Washington state conviction for felony
harassment constitutes a crime of violence under the Federal
March of 2014, Justin Curtis Werle was indicted in the
Eastern District of Washington for the unlawful possession of
a firearm and ammunition, in violation of 18 U.S.C. §
922(g)(1), and possession of an unregistered firearm, in
violation of 26 U.S.C. § 5861(d). Werle pled guilty to
both counts against him, and a sentencing hearing was held
later that year.
district court found that Werle had seven prior qualifying
convictions under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e) (ACCA), and was therefore subject to a
fifteen-year mandatory minimum sentence. This finding was
based in part on the district court's determination that
the Washington riot statute is categorically a violent felony
for the purposes of the ACCA. A different panel of this court
held that the Washington riot statute is not categorically a
violent felony, and the case was remanded for resentencing in
light of the opinion. United States v. Werle, 815
F.3d 614, 623 (9th Cir. 2016).
remand, the district court imposed a sentence enhancement
under U.S.S.G. § 2K2.1(a) due to Werle's prior
convictions for felony harassment via a threat to kill under
Washington Revised Code § 9A.46.020(2)(b)(ii), finding
that those convictions were crimes of violence. The district
court then calculated Werle's sentencing guideline range