UNITED STATES of America, Plaintiff-Appellee, v. Robby Lee ROBINSON, Defendant-Appellant, 869 F.3d 933

OPINION BEA, Circuit Judge: This case presents the question whether the Washington crime of second-degree assault, see Wash. Rev. Code § 9A.36.021, is a “crime of violence” within the meaning of

section 2K2.1 of the U.S. Sentencing Guidelines. We conclude that it is not, and we vacate the defendant’s sentence and remand for resentencing. I. Background During an argument with his girlfriend’s mother, Robby Robinson produced a .22 caliber assault rifle from a vehicle that was parked outside the mother’s house. Robinson’s girlfriend and her son both called 911. Robinson fled the scene before the police arrived but left the assault rifle behind.

After responding to the 911 calls, police officers searched the house and found multiple firearms, including a .22 caliber assault rifle on which Robinson’s DNA was later found. Early the next morning, police officers found Robinson hiding in his sister’s car. The officers arrested Robinson, searched the car, and found hidden under the passenger seat a backpack containing a Ruger .44 caliber magnum revolver.

Later, Robinson called his girlfriend from jail, asked her to remove the revolver from the car, and made other statements that the district court stated “implied that he ha[d] given [the gun] to his sister to keep.” Robinson was indicted on two counts of being a felon in possession of fíréarms in violation of 18 U.S.C. § 922(g)(1). The first count related to the guns found at the mother’s house, including the assault rifle; the second related to the revolver found in his sister’s car. Robinson agreed to a bench trial, and the district court found him guilty on both counts.

At Robinson’s sentencing hearing, the district court noted that Robinson had previously pleaded guilty in Washington state court to one felony count of second-degree assault in violation of

section 9A.36.021 of the Revised Code of Washington. The district court ruled that this conviction was a “felony conviction of ... a crime of violence” under

section 2K2.1 of the U.S. Sentencing Guidelines (the “Guidelines”), the

section that covered Robinson’s conviction under § 922(g)(1). Accordingly, the district court ruled that Robinson’s base offense level was twenty-two. The court then applied a four-level enhancement for “[u]s[ing] or possessing] any firearm ... in connection with another felony offense,” U.S.S.G. § 2K2.1(b)(6)(B), and a two-level enhancement for obstruction of justice based on, inter alia, the phone call from jail in which Robinson asked his girlfriend to hide his revolver. See U.S.S.G. § 3C1.1.

The district court calculated Robinson’s sentencing range to be 110-137 months and imposed a below-Guidelines sentence of ninety months’ imprisonment. Robinson timely appealed, challenging only the district court’s ruling that his prior second-degree assault conviction was for a “crime of violence.” II. Jurisdiction and Standard of Review We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo whether a state-law crime constitutes a crime of violence under the Guidelines. See United States v. Crews, 621 F.3d 849, 851 (9th Cir. 2010). III.

Discussion To determine whether a defendant’s prior conviction is a crime of violence under the Guidelines, we apply the categorical approach first outlined in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and later clarified in Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Mathis v. United States, _ U.S. _, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Under this approach, “we inquire first ‘whether the elements of the crime of conviction sufficiently match the elements of the generic federal [definition of a crime of violence].’” United States v.

Arriaga-Pinon, 852 F.3d 1195, 1198-99 (9th Cir. 2017) (alterations omitted) (quoting Mathis, 136 S.Ct. at 2248). Then, “[i]f the statute is overbroad and thus not a categorical match, we next ask whether the statute’s elements are also an indivisible set.” Id. at 1199. “Finally, if the statute is divisible, then the modified categorical approach applies and ‘a sentencing court looks to a limited class of documents ... to determine what crime, with what elements, a defendant was convicted of.’ ” Id. (quoting Mathis, 136 S.Ct. at 2249).

If that crime falls within the generic federal definition, then the defendant’s conviction qualifies as a crime of violence. On appeal, Robinson argues that the Washington crime of second-degree assault is not a crime of violence under the categorical approach, because

section 9A.36.021 is both overbroad (i.e., it covers more conduct than the generic federal definition of a crime of violence) and indivisible. The government responds that Robinson’s argument is foreclosed by this Court’s decision in United States v. Lawrence, 627 F.3d 1281 (9th Cir. 2010), in which we held that a prior conviction for second-degree assault under subsection 9A.36.021(l)(a) — the same subsection used to convict Robinson here — was categorically a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). In the alternative, the government argues that Washington second-degree assault is a crime of violence, because

section 9A.36.021 is divisible and because subsection 9A.36.021(l)(

a) meets the generic federal definition. A. Lawrence Is Not Controlling. First, the government argues that this case is controlled by United States v. Lawrence. There, we held that a defendant’s prior conviction for second-degree assault under subsection 9A.36.021(1)(

a) was categorically a “violent felony” under the ACCA. See Lawrence, 627 F.3d at 1288.

We explained that because “[s]ection 9A.36.021(l)(a) ... requires not just an intentional assault, but an intentional assault that results in substantial bodily harm,” and because “[t]he Washington criminal code defines ‘substantial bodily harm’ as ‘bodily injury which involves a temporary but substantial disfigurement [and similar],’ ” the defendant’s prior second-degree assault conviction “necessarily require[d] force that [went] beyond the ‘least touching[]’ and represents ‘actual force’ that is violent in nature.” Id. at 1287 (citations and some internal quotation marks omitted).

Thus, we held that the prior second-degree assault conviction was for a “violent felony” under the ACCA. If Lawrence were still good law, the government would be correct that it would dispose of Robinson’s case. But although Lawrence was decided after Taylor, it came before Descamps and Mathis, so we had no occasion in Latorence to determine whether

section 9A.36.021 is divisible. Moreover, as we explain below, we conclude that

section 9A.36.021 is in fact indivisible. Thus, Lawrence’s conclusion that Washington second-degree assault is a violent felony under the ACCA — and, by extension, a crime of violence under the Guidelines — is “clearly irreconcilable with the reasoning or theory” of Descamps and Mathis. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). We therefore decline to follow it here. B. The Washington Crime of Second-Degree Assault Is Not Categorically a Crime of Violence. 1. The Government Does Not Dispute, and We Agree with Robinson, that

Section 9A.36.021 is Over-broad. Applying the categorical approach, our first task is to determine “whether the elements of [Robinson’s] crime of conviction sufficiently match the elements of the generic federal [definition of a crime of violence.]” Arriaga-Pinon, 852 F.3d at 1199 (citations and alterations omitted). Thus, we must determine whether a person can commit the Washington crime of second-degree assault through any of the seven statutory alternatives listed in

section 9A.36.021(1) without committing a crime of violence within the meaning of the Guidelines. Guidelines

section 2K2.1 defines a “crime of violence,” in relevant part, as “any offense ... that ... has as an element the use, attempted use, or threatened use of physical force against the person of another.” See Application Note 1 to U.S.S.G. § 2K2.1 (incorporating by reference the definition of “crime of violence” given in U.S.S.G. § 4B1.2(a)). As used in this definition, “the phrase ‘physical force’ means violent force — that is, force capable of causing physical pain or injury to another person.” Johnson v.

United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (interpreting identical language used in 18 U.S.C. § 924(e)(2)(B)(i), a provision of the ACCA); see also Ladwig, 432 F.3d at 1005 n.9 (“The basic definition of ‘violent felony’ under

section 924(e)(2) (B) (i) [ ] is. identical to the definition of ‘crime of violence’ under U.S.S.G. § 4B1.2(1)(i)[ (citations and alterations omitted)). Subsection 9A,36.021(l)(e), the fifth of

section 9A.36.021(l)’s seven subsections, provides that a person commits second-degree assault if “he or she ... [wjith intent to commit a felony,.assaults another.” Robinson argues that this subsection provides a means of committing second-degree assault that does not necessarily require the actual, attempted, or threatened use of force capable of causing physical pain or injury to another. The government did not dispute Robinson’s argument before the district court or on appeal, and we agree with Robinson that subsection (l)(

e) criminalizes conduct that is not covered by

section 2K2.1’s definition of “crime of violence.”

Section 9A.36.021 Is Indivisible. We next determine whether

section 9A.36.021 is divisible — that is, whether its seven statutory'alternatives present seven different “means” by which a person can commit the single crime-of second-degree assault or whether they instead-present the- “elements” of seven separate sub-crimes. See Mathis, 136 S.Ct. at 2248-50. This, in turn, depends on whether a jury must unanimously agree-on: which of the seven statutory alternatives a defendant committed to return a conviction.

See id. at 2248 (“ ‘Elements’ are the ‘constituent parts’ of a crime’s legal definition — the things the ‘prosecution must prove to sustain a conviction.’ At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant; and at a plea hearing, they are what the defendant necessarily admits when, he pleads guilty.” (citations omitted)). If jury unanimity.is required, then the alternatives are elements, and under the "modified” categorical approach, we may analyze subsection (l)(a). in isolation to determine whether it is categorically, a .crime of violence.

See id. at 2248-50, By contrast, if a jury could return a conviction without agreeing on which particular statutory alternative,.applied, then the statute is indivisible and does not categorically define a crime of violence. We begin, as Mathis instructs, with the text of

section 9A.36.021. See id. at 2266 (“[A] statute may itself identify which things must be charged (and so are elements) and which need not be (and so are means).”). Nothing here clarifies whether the seven alternatives are elements or means. The statute does not explicitly state whether a jury could return a conviction without agreeing unanimously on a particular alternative. Moreover, because all of the alternatives carry the same punishment, the Due Process Clause does not require that any such agreement be reached. See id. (citing Apprendi v.

New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). Next, we turn to state decisional law. We find clearer guidance here. For example, in State v. Smith, 159 Wash.2d 778, 154 P.3d 873 (2007) (en banc), the Washington Supreme Court stated that “the second degree criminal assault statute articulates a single criminal offense and then provides six separate subsections by which the offense may be committed.” Id. at 876 (emphasis added) (footnote omitted) (citing Wash. Rev. Code § 9A.36.021(l)(a)-(f)).

The court explained that “[e]ach of these six subsections represents an alternative means of committing the crime of second degree assault.” Id. (emphasis added). And a few paragraphs earlier, it noted that “when the crime charged can be committed by more than one means, the defendant does not have a right to a unanimous jury determination as to the alleged means used to carry but the charged crime.” Id. at 875 (emphasis added).

Taking these statements together, Smith stands for the proposition that a jury need not unanimously agree on which of the “alternative means” listed in § 9A.36.021(1) the defendant committed. Later Washington cases buttress this conclusion. In State v. Peterson, 168 Wash.2d 763, 230 P.3d 588 (2010) (en banc), for example, the Washington Supreme Court cited its decision in Smith for the proposition that “[a]n alternative means crime is one ‘that provide[s] that the proscribed criminar conduct may be proved in a variety of ways.’ ” Id. at 591 (some alterations in original) (quoting Smith, 154 P.3d at 873).

Similarly, the Washington Supreme Court has stated that “when there is sufficient evidence to support each of the alternative means of committing the crime, express jury unanimity as to which means is not required.” State v. Owens, 180 Wash.2d 90, 323 P.3d 1030, 1032 (2014) (en banc). Washington’s pattern jury instructions for criminal cases (“WPIC”) also démon-strate that

section 9A.36.021(1) lists alternative “means.” WPIC 35.12 is entitled “Assault — Second Degree (Alternate Means) — Inflict Substantial Bodily Harm Or With Deadly Weapon — Elements.” WPIC 35.12 states, in relevant part: To convict the defendant of the crime of assault in the second degree, each of the following two elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about (date), the defendant: [ (

a) intentionally assaulted (name of person) and thereby recklessly inflicted substantial bodily harm;] [or] [ (

b) assaulted (name of person) with a deadly weapon;] and

(2) That this act occurred in the State of Washington. If you find from the evidence that element (2) and either alternative element (l)(

a) or (l)(

b) have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. To return a verdict of guilty, the jury need not be unanimous as to which of alternatives (l)(

a) or (l)(

b) has been proved beyond a reasonable doubt, as long as each juror finds that either (l)(

a) or (l)(

b) has been proved beyond a reasonable doubt. (emphasis added) (brackets in original). According to the instruction, a jury can convict a defendant of assault in the second degree without unanimously agreeing on whether the defendant violated subsection (l)(a) (intentional assault which recklessly inflicts substantial bodily harm) or subsection (l)(c) (assault with a deadly weapon). This instruction suggests that the listed alternatives are means, not elements, and that

section 9A.36.021(1) is therefore indivisible. The government’s arguments that

section 9A.36.021(1) lists alternative elements of separate crimes are unpersuasive. First, the government argues that State v. Fuller, 185 Wash.2d 30, 367 P.3d 1057 (2016) (en banc), supports its

interpretation of the statute. In that case, the Washington Supreme Court stated that: [W]hen the State charges alternative means of committing an offense in separate counts and the jury acquits on one count but deadlocks on the other, the State may retry the defendant on the count on which the jury was declared hung. Retrial on that count does not violate the prohibition against double jeopardy because jeopardy never terminated as to that count or as to the overall offense. Id. at 1063. The government contends that State v. Fuller establishes that the listed alternatives in

section 9A.36.021(1) are not “alternative means” as that term is used in Taylor, Descamps, and Mathis because if they were, double jeopardy would have barred retrial. Fuller’s analysis, however, demonstrates that the listed alternatives are in fact “alternative means.” The Fuller court first stated that

section 9A.36.021 is a “single criminal offense with “seven separate subsections defining how the offense may be committed.” 367 P.3d at 1059 (footnote omitted). It then noted that: [WJhether a case involves separate counts based on alternative means or a single count with two alternative means does not change the double jeopardy analysis [because] ... a defendant charged and tried under multiple statutory alternatives experiences the same jeopardy as one charged and tried on a single theory.

The defendant is in jeopardy of a single conviction and subject to a single punishment, whether the state charges a single alternative or several. Id. at 1059-60 (citations, alterations, and internal quotation marks omitted). Because the court concluded that charging a defendant with violations of multiple subsections of

section 9A.36.021(1) puts the defendant “in jeopardy of a single conviction and subject to a single punishment,” Fuller demonstrates that -section 9A.36.021(1) lists alternative means of proving a single crime, not alternative elements of separate crimes. See id. Second, the government cites State v.

Kitchen, 110 Wash.2d 403, 756 P.2d 105 (1988) (en banc), abrogated on other grounds as recognized in In re Stockwell, 179 Wash.2d 588, 316 P.3d 1007 (2014) (en banc), for the proposition that “[i]n an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged.” Id. at 109.

But the very next sentence of Kitchen shows that the case in fact stands for the proposition that jury unanimity is not required as to each particular means in an alternative-means case: “Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.” Id.

The government argues that the fact that “substantial evidence” is required for each' alternative “is more proof these alternatives are functionally separate crimes.” But the Supreme Court has never held that a requirement that “substantial evidence” support each relied-upon statutory alternative demonstrates that the statutory alternatives are separate crimes. Instead, what matters is whether a jury must agree unanimously on a particular listed alternative. In sum, we conclude that

section 9A.36.021 defines a single crime — second-degree assault — and provides seven different “means” by which a person can commit that crime. The statute is therefore indivisible. Moreover, because

section 9A.36.021 covers more conduct than the generic federal definition of a crime of violence under Guidelines

section 2K2.1, it does not define a crime that categorically satisfies that definition. Thus, the district court erred in concluding that Robinson’s prior second-degree assault conviction was for a crime of violence. IY. Conclusion For the foregoing reasons, we VACATE Robinson’s sentence and REMAND for re-sentencing. .

Section 9A.36.021 provides that a person commits second-degree assault if, inter alia, "he or she ... [¡Intentionally assaults another and thereby recklessly inflicts substantial bodily harm.” See Wash. Rev. Code § 9A.36.021(l)(a). With one exception not relevant here, second-degree assault is a class B felony punishable by up to ten years' imprisonment, See id. §§ 9A.36,021(2), 9A.20.021(l)(b), .

Section 2K2.1(a)(3) of the Guidelines provides for a base offense level of twenty-two "if ... the offense involved [certain high-capacity firearms] and ... the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of ... a crime of violence." . As noted above, Robinson’s base offense level was twenty-two; with the enhancements, it was twenty-eight. Robinson’s criminal history category was IV, which yielded a sentencing range of 110-137 months. Robinson argues (and the government does not dispute) that if his prior conviction was not a crime of violence under

section 2K2.1, then his base offense level would be twenty, his total offense level would be twenty-six, and his Guidelines sentencing range would be 92-115 months. Even though the sentence would fall ’below the correctly calculated Guideline range, the error was not harmless. See United States v. Munoz-Camarena, 631 F.3d 1028, 1030-31 (9th Cir. 2011). The government does not argue otherwise. . Alternatively, Robinson argues that even if

section 9A.36.021 is divisible, the specific subsection under which he was charged— 9A,36.021(l)(a) — is not categorically a crime of violence because it does not require the intentional use of violent force. See United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015), Because we agree with Robinson that

section 9A.36.021 is both overbroad and indivisible, we do not reach this second argument. . We have held that the definition of a crime of violence under the Guidelines and the definition of a violent felony under the ACCA are "identical." United States v. Ladwig, 432 F.3d 1001, 1005 n.9 (9th Cir. 2005) (citation omitted). . In full,

section 9A.36.021(1) reads: “A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree: (

a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or (

b) Intentionally and unlawfully causes substantial bodily harm to an unborn quick child by intentionally and unlawfully inflicting any injury upon the mother of such child; or (

c) Assaults another with a deadly weapon; or (

d) With intent to inflict bodily harm, administers to or causes to be taken by another, poison or any other destructive or noxious substance; or (

e) With intent to commit a felony, assaults another; or (

f) Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture; or (

g) Assaults another by strangulation or suffocation.” . In his briefing, Robinson does not provide any examples of how a person might "assault another” with "intent to commit a felony” but without using violent force. One example might be where a person touches a minor's body in a sexual manner. See Wash. Rev. Code § 9A.44.083 (providing that a person commits felony of first-degree child molestation if he "has ... sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim”); State v.

Smith, 159 Wash.2d 778, 154 P.3d 873, 875 (2007) (en banc) (defining "assault” as, inter alia, "an intentional touching .., that is harmful or offensive regardless of whether any physical injury is done to the person"). . In its answering briéf, the government - states; “Because Washington's second-degree assault statute includes one variant that does not require ‘physical force’ within the meaning of Johnson (subsection (l)(e)), 'the statute as a whole does' not categorically define a crime of violence under a Taylor analysis,” .

See §§ 9A.36.021(2), 9A.20.020(1)(a)-(b) (providing that second-degree assault is a class B felony, punishable by up to ten years’ imprisonment, unless it involves "sexual motivation,” in which case it is a class A felony, punishable by up to a lifetime term of imprisonment). .

Section 9A.36.021(1) has since been amended to include a seventh subdivision, which prohibits "[a]ssault[ ] ... by strangulation or suffocation,” Id. .§ 9A.36.021(l)(g). . These, jury instructions are drafted by the Washington State Supreme Court’s Pattern Instructions Committee. See Pattern Jury Instructions, https://www.courts.wa.gov/index. cfm?fa=home.contentDisplay&location=Pat-ternJurylnstructions (last visited August 15, 2017).

Though the instructions are "often treated as persuasive," they are "not authoritative primary sources of the law” and are “not binding on trial courts.” See WPIC 0.10 (Introduction to Washington’s Pattern Jury Instructions for Criminal Cases) (internal quotation marks omitted). . For example, suppose that a defendant were charged with second-degree assault in connection with the beating of a victim in a dark alleyway. The victim testifies that although he couldn’t see whether his assailants were brandishing weapons, it felt like he was being punched and lacked.

Moreover, the victim testifies that his assailants struck him in the face and broke his nose. An accomplice to the beating testifies (perhaps in exchange for immunity) that the defendant in fact struck the victim with a baseball bat — a deadly weapon — but that the defendant never struck the victim in the face and hence could not have broken the victim's nose.

If six jurors believed the victim’s testimony — that the defendant had not used a deadly weapon but had recklessly inflicted substantial bodily harm by breaking the victim’s nose — and six jurors believed the accomplice’s testimony — that the defendant had used a deadly weapon during the assault but had not recklessly inflicted substantial bodily harm — the jury could nonetheless return a conviction, because subsections (l)(

a) and (l)(

c) are means, not elements, of the crime of second-degree assault.