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United States v. Ouellette

United States District Court, D. Maine

September 17, 2019

UNITED STATES OF AMERICA
v.
DAMIAN A. OUELLETTE, Defendant

          ORDER ON GOVERNMENT'S OBJECTION TO PRESENTENCE REPORT

          Lance E. Walker United States District Judge.

         On January 30, 2019, Defendant Damian Ouellette pleaded guilty to possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In the Revised Presentence Investigation Report (“PSR”), the Probation Office determined Mr. Ouellette's base offense level to be 14 as he was a “prohibited person” at the time he committed the instant offense. See U.S.S.G. § 2K2.1(a)(6)(A). The government objected, asserting that because Mr. Ouellette had previously sustained a felony conviction of robbery with a dangerous weapon - in its estimation, a “crime of violence, ” as defined in U.S.S.G. § 4B1.2 - his base offense level should be 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(A). For the reasons below, I conclude, albeit with deep reservations, that Mr. Ouellette's prior conviction of robbery qualifies as a “crime of violence” and, therefore, his base offense level is 20.

         DISCUSSION

         Under the current iteration of United States Sentencing Guidelines § 4B1.2, a prior conviction qualifies as a “crime of violence” in one of two ways. First, under the “force clause, ” a prior felony conviction is considered a crime of violence if the offense charged “has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1). Second, under the “enumerated offenses clause, ” nine specific crimes - including robbery - are identified as offenses that categorically qualify as crimes of violence. Id. § 4B1.2(a)(2).

         The parties focus their arguments on whether Mr. Ouellette's prior robbery[1] conviction - and particularly the requisite degree of force entailed by that conviction - qualifies as a crime of violence under the enumerated offenses clause. A plain reading of this clause might lull a casual observer into a false sense of clarity because robbery is among the enumerated offenses. However, that inclusion “does not end the required analysis.” United States v. Childers, No. 1:16-CR-00079-JAW, 2017 WL 2559858, at *10 (D. Me. June 13, 2017). Instead, because robbery is left undefined in the Guidelines, I must apply the analytical framework established in Taylor v. United States, 495 U.S. 575 (1990), to determine whether the prior state conviction qualifies as a “crime of violence.” United States v. Ramirez, 708 F.3d 295, 300 - 302 & n.8 (1st Cir. 2013).

         The first step is determining the applicability of either the categorical or modified categorical approach. The categorical approach is essentially the default rule; it is used unless the “defendant's prior conviction is for violating a ‘divisible statute' - i.e., a statute that ‘sets forth one or more elements of a particular offense in the alternative.'” United States v. Ramos-Gonzalez, 775 F.3d 483, 505 (1st Cir. 2015) (quoting United States v. Fish, 758 F.3d 1, 6 (1st Cir. 2014)). Using either the categorical or modified categorical approach, the court then isolates the elements of the crime of conviction (and not the defendant's actual, related conduct) and compares those elements to the elements of the “generic definition of the enumerated offense.” Ramirez, 708 F.3d at 302 n.8; see also Taylor, 495 U.S. at 598 (requiring the distillation of the “generic, contemporary meaning” of an enumerated offense); Descamps v. United States, 570 U.S. 254, 257 (2013) (“[Courts] compare the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic' crime - i.e., the offense as commonly understood.”). If comparison reveals that the Maine robbery statute has the same elements as the generic crime of robbery or is narrower than generic robbery, then the prior robbery conviction qualifies as an enumerated offense under the Guidelines. Childers, 2017 WL 2559858, at *10 - 11. If, however, the “statute sweeps more broadly than the generic crime, ” the prior conviction will not qualify. Descamps, 570 U.S. at 261.

         A. Inquiry I: Crime of Conviction

         In a curious departure from the bedrock principle undergirding the Sentencing Guidelines - “relevant conduct” - I am required to scrutinize “the statutory definitions of the prior offenses, and not . . . the particular facts underlying those convictions” through the lens of either the categorical or modified-categorical approach. Taylor, 495 U.S. at 600. While the resolution of this inquiry is “no walk in the park, ” United States v. Mulkern, 854 F.3d 87, 90 (1st Cir. 2017), my task has been simplified by the First Circuit's conclusion that 17-A M.R.S. § 651[2] is divisible and, thus, the modified-categorical approach applies. Id. at 91. Under the modified-categorical approach, I may rely on Shepard[3] documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of. Id. (quoting Mathis v. United States, 136 S.Ct. 2243, 2249 (2016)).

         The parties agree that the indictment indicates Mr. Ouellette pleaded guilty to a violation of 17-A M.R.S. § 651(1)(B) (robbery), to include § 651(1)(E) (armed robbery). The parties' arguments focus on subsection (B), [4] which defines robbery as “commit[ing] or attempt[ing] to commit theft” and “threaten[ing] to use force against any person present with the intent: (1) To prevent or overcome resistance to the taking of the property, or to the retention of the property immediately after the taking; or (2) To compel the person in control of the property to give it up or to engage in other conduct that aids in the taking or carrying away of the property.” 17-A M.R.S. § 651(1)(B). The Legislature separately criminalized robbery effectuated through the actual use of force in subsection (C) of the robbery statute.

         In Raymond v. State, the Maine Supreme Judicial Court addressed the degree of force required to qualify as robbery under 17-A M.R.S. § 651(1)(C) and, specifically, whether the act of snatching a bag from the victim's hand was sufficient to sustain a conviction. 467 A.2d 161, 162 (Me. 1983). The Law Court sustained the defendant's conviction, and it held that “any physical force with the intent [to deprive] should be sufficient to raise a theft offense to the level of robbery.” Id. at 165. See also Mulkern, 854 F.3d at 93 (citing Raymond to like effect). In other words, in Maine, the degree of force required to commit “actual force” robbery is “any physical force, ” including the force necessary to snatch an item of property from someone's grasp. Defendant argues that because mere “snatching” force would suffice to sustain a robbery conviction in Maine, his conviction is per se not a crime of violence. Def.'s Mem. 3. Defendant argues it does not matter that his conviction was under § 651(1)(B) (robbery by threat) rather than § 651(1)(C) (robbery by use of force). He cites Mulkern in support of his position, observing that the First Circuit there stated it made no difference for purposes of the force clause of the Armed Career Criminal Act. Id., citing Mulkern, 854 F.3d at 93-94. I am not persuaded. In Mulkern, the Court considered whether a Maine robbery conviction implied a degree of force “capable of causing physical pain or injury, ” following the guidance set by the Supreme Court in Johnson v. United States, 559 U.S. 133, 140 (2010). See Mulkern, 854 F.3d at 93-94. Here, on the other hand, I consider whether a Maine robbery conviction predicated on a threat of force is a “generic” robbery conviction, based on the contemporary understanding of robbery among the several States.

         B. Inquiry II: Generic, Contemporary Definition

         The second inquiry dictated by the Taylor framework is more difficult: what is “generic robbery” - more specifically, what degree of force is encompassed by the robbery offense identified in U.S.S.G. § 4B1.2(a)(2)- and how is it divined? Taylor instructs that I must determine the “generic, contemporary meaning” of the charged offense through an examination of how “the term is now used in the criminal codes of most States” and, at times, supplemented by a review of the Modern Penal Code and contemporary treatises. 495 U.S. at 589, 598 & n.8 (indicating that the “modern ‘generic' view” of a crime “roughly correspond[s] to the definitions of [the crime found] in a majority of the States' criminal codes.”). The First Circuit has not yet determined the generic definition of robbery. However, it has held that a state robbery conviction under a statute that requires at least the threat of bodily injury “substantially corresponds to the definition of generic robbery.” United States v. Ball, 870 F.3d 1, 6 (1st Cir. 2017) (applying 2015 Guidelines Manual, § 4B1.2 application note listing robbery as an exemplar crime of violence). Here we ponder a state statute that allows a robbery conviction to stand on use of “any force, ” so Ball is not decisive. Additionally, the First Circuit has yet to prescribe the proper methodology for determining the generic definition of a crime. As I see it, the inquiry boils down to what amount of force must be threatened to support a conviction for “generic” robbery and whether that amount of force corresponds with the minimal requirements of Maine law.

         While the First Circuit has not yet prescribed a ready answer, other circuit courts have sanctioned two approaches leading to divergent assessments concerning the amount of force needed to commit generic robbery. Some circuits conclude that the majority of state criminal codes provide that generic robbery requires no more than de minimis force. See United States v. Graves, 877 F.3d 494, 503 (3d Cir. 2017), cert. denied, 139 S.Ct. 159 (2018) (“We now join the Seventh and Eleventh Circuits and hold that generic robbery requires no more than de minimis force.”); United States v. Molinar, 881 F.3d 1064, 1073 (9th Cir. 2017) (“Again, the generic definition of robbery encompasses not only de minimis force sufficient to compel acquiescence to the taking of or escaping with property, but also the implied threat of force.” (footnote omitted)). Looking to the Model Penal Code and state laws defining robbery, the Graves court noted a fundamental “disjunction”: “[T]he MPC requires that there be some actual or threatened injury to another person for a theft to qualify as robbery. . . . [H]owever, there are thirty-eight states which define robbery as theft involving the use of even de minimis force.” Graves, 877 F.3d at 502. Relying on its reading of Taylor, the Graves court concluded that “the most important factor in defining the generic version of an offense is the approach of the majority of state statutes defining the crime.” Id. at 504. It reasoned:

Affording predominant weight to the majority of states best recognizes that “Congress' basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity.” While the MPC is a useful starting point, its definition of ‘robbery' does not supersede the way in which the majority of states have defined that offense.

Id. (footnotes omitted, quoting United States v. Booker, 543 U.S. 220, 253 (2005)). Similarly, the Ninth Circuit in Molinar relied primarily on the definition of robbery in the majority of states to conclude that generic robbery encompasses even de minimis force. Molinar, 881 F.3d at 1072.

         Other circuits conclude that generic robbery requires the application of something more than minimal force. United States v. Gattis, 877 F.3d 150, 159 (4th Cir. 2017), cert. denied, 138 S.Ct. 1572 (2018) (“[J]ust like generic robbery committed through the use of force, to commit robbery by force in North Carolina, the defendant must do more than stealthily pickpocket or suddenly snatch; he must direct a degree of force towards the victim beyond the minimum necessary to remove the item from the victim's grasp.”); United States v. Yates, 866 F.3d 723, 730, 734 (6th Cir. 2017) (holding that generic robbery requires the application of more than “minimal use of force”; looking instead to whether the circumstances presented immediate danger to the victim); United States v. Santiesteban-Hernandez, 469 F.3d 376, 380 (5th Cir. 2006) (same, abrogated on other grounds). In arriving at this conclusion, the Sixth Circuit, for example, relies on contemporary scholars to do the heavy lifting of analysis and, considering the effort of combing through and keeping tabs on the ever-changing whims of legislative fancy, this approach is perfectly understandable. The additional appeal to this approach is in its near immutability, which makes marginally easier the task of applying the modified-categorical approach.

         Nevertheless, Taylor appears, quite plainly, to require me to give priority of importance to how robbery is now used in the criminal codes of most States and subordinate consideration to how the Model Penal Code classifies the offense[5] or how scholars have characterized the variations in state criminal codes. Taylor, 495 U.S. at 598. After reviewing the multitude of statutory provisions defining robbery across the states (including Puerto Rico and the District of Columbia), I conclude that Maine's divisible robbery statute may not be entirely generic in application insofar as it encompasses the act of snatching property from the grip of an unsuspecting and therefore non-resistant victim. However, as applied to robbery by threat, which Plaintiff was convicted of, Maine law appears to be generic in its application because most other states similarly treat dispossession by threat of force as robbery. In a threat scenario, unlike a snatch scenario, one deprives another person of property by threat of using, categorically, whatever degree of force is needed to forcibly overcome any resistance that is offered.[6] ...


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