United States v. Lawrence

Counsel

Elizabeth G. Daily, Assistant Federal Public Defender, Portland, for defendants., **798In these consolidated cases, the United States Court of Appeals for the Ninth Circuit certified three questions to this court concerning how predicate Oregon convictions for first- and second-degree robbery should be treated for certain issues that arise under federal sentencing law. Those questions were:, This court accepted certification by order in November 2018. In January 2019, the United States Supreme Court decided Stokeling v. United States , 586 U.S. ----, 139 S.Ct. 544, 202 L.Ed.2d 512 (2019), which concerned a similar issue involving how to treat a predicate Florida robbery for federal sentencing purposes. Thereafter, defendant Lawrence successfully moved to dismiss his appeal in the Ninth Circuit, and the Ninth Circuit accordingly modified its certification order to the extent that its questions concerned defendant Lawrence's case, leaving only the Ankeny case and the second question and one aspect of the third question before us. On our own motion, we have re-evaluated the questions **799presented in light of the above-described developments. On reconsideration, we decline certification of the remaining questions, for several reasons., Before turning to our reasoning, we give a brief description of the underlying issues. In the Lawrence case, defendant raised an issue on appeal in the Ninth Circuit concerning whether the district court had correctly calculated his sentence, under the federal sentencing guidelines, when it determined that Lawrence's prior Oregon conviction for first-degree robbery constituted a "crime of violence" as defined by United States Sentencing Guidelines section 4B1.2(a). In the Ankeny case, defendant was sentenced under the Armed Career Criminal Act (ACCA), based in part on the district court's conclusion that *589his prior Oregon conviction for second-degree robbery was a "violent felony" under 18 USC section 924(e), and defendant appealed to the Ninth Circuit, raising an issue concerning the use of the prior Oregon conviction., When the United States Supreme Court decided Stokeling in January of this year, it appears to have significantly altered the legal landscape about how predicate robbery offenses are treated for purposes of federal sentencing. As noted, after that decision, the parties in Lawrence dismissed their appeal in the Ninth Circuit. Both parties in Ankeny also sought to have the Ninth Circuit withdraw its certified questions from this court, with the government taking the position that much of the Ninth Circuit's prior case law concluding that robbery statutes were "overbroad" was undermined by Stokeling , and Ankeny arguing that he had not raised the question of "divisibility" in his appeal to the Ninth Circuit but in fact had conceded that the second-degree robbery statute was divisible. The Ninth Circuit withdrew its certified questions insofar as they pertained to Lawrence and first-degree robbery, but it did not withdraw its questions insofar as they pertain to the Ankeny case and second-degree robbery. The Ninth Circuit maintained that its precedent remained good law after Stokeling and that a question remained as to whether Oregon's second-degree robbery statute was "divisible" and whether jury concurrence on particular elements of that statute was required.