In United States v. Verderoff, --- F.3d ---, No. 17-30096 (9th Cir. 2019), the Court vacated a sentence for felon in possession of a firearm.
The short version is that the Court determined second-degree assault under Wash. Rev. Code § 9A.36.021(1) is overbroad when compared to the generic definition of aggravated assault. And it found second-degree murder under Wash.Wash. Rev. Code § 9A.32.050 (2003) is overbroad when compared to the generic definition of murder. The Court further found both statutes were indivisible. Thus, because neither qualified as a “crime of violence” under § 4B1.2, the district court erred in calculating the sentencing range.
And despite the fact that the district court said its 60-month sentence was appropriate regardless of what range applied, the Court vacated the sentence, rejecting the government's harmless error argument. There is helpful language on this point:
Here, it appears that the district court started with the presumption that a 60-month sentence was the correct one, and it attempted to justify it as either a downward departure from the Guidelines calculation he accepted at sentencing or an upward departure from the Guidelines calculation advocated by defense counsel. Having now determined that the proper Guideline range would be 30 to 37 months, we cannot say that the district court’s incorrect calculation of the proper Guideline range was harmless. The explanation given by the district court does not explain why the court imposed a sentence nearly double the Guideline range. Nor does it demonstrate that the district court would impose the same sentence if the correct Guidelines range were “kept in mind throughout the process.” Id. at 1030 (citation omitted). Moreover, the explanation provided by the district court does not account for the amount or direction of the departure; the mitigating factors discussed by the district court could also have warranted a downward variance from the proper Guideline range. This case must therefore be remanded for resentencing with the correct Guidelines range in mind. United States v. Brown, 879 F.3d 1043, 1051 (9th Cir. 2018) (“The use of an incorrect starting point and the failure to keep the proper Sentencing Guidelines range in mind as the sentencing decision was made constituted ‘a significant procedural error,’ and the case must be remanded for resentencing.” (quoting Munoz-Camarena, 631 F.3d at 1030)).
