Summary
The Ninth Circuit vacated Scott Keast’s 46-month sentence for being a felon in possession of a firearm and remanded for resentencing. The court held that Keast’s aggravated Oregon conviction for unlawful use of a weapon with a firearm does not qualify as a crime of violence under the elements clause of U.S.S.G. § 4B1.2(a)(1), because the offense does not require the use, attempted use, or threatened use of physical force against another person. As a result, the district court had improperly calculated Keast’s base offense level and Guidelines range.
Topics
Practice areas
Questions Presented
- Whether Keast's prior Oregon conviction for aggravated unlawful use of a weapon based on possession with intent to use a dangerous or deadly weapon unlawfully against another qualifies as a crime of violence under U.S.S.G. § 4B1.2(a)(1).
- Whether the categorical approach and realistic-probability standard require proof that the firearm was used or threatened against the defendant's intended target or another person.
Holdings
- The aggravated Oregon unlawful-use-of-a-weapon possession offense is not categorically a crime of violence because its statutory elements do not require the use, attempted use, or threatened use of physical force against the person of another.
- The aggravated unlawful-use-of-a-weapon offense does not require that the firearm's use or threatened use be directed against the defendant's intended target.
- Keast satisfies any realistic-probability requirement because the statutory text itself facially covers conduct outside the Guidelines' crime-of-violence definition; an actual state case applying the statute to nongeneric conduct was unnecessary.
Key quotations
“Because the Oregon statutes of conviction do not require “as an element the use, attempted use, or threatened use of physical force against the person of another,” Keast’s prior conviction is not a crime of violence under the Sentencing Guidelines.” (at 3)
“Keast’s prior conviction for UUW-possession with a firearm is not categorically a crime of violence under U.S.S.G. § 4B1.2(a)(1) because the statutory elements of UUW-possession with a firearm do not require the government to prove the “use, attempted use, or threatened use of physical force against the person of another.”” (at 22)
Factual background
In 2024, Keast pleaded guilty to one count of felon in possession of a firearm under 18 U.S.C. § 922(g)(1). He had a prior Oregon felony conviction for unlawful use of a weapon under Or. Rev. Stat. § 166.220(1)(a), aggravated under Or. Rev. Stat. § 161.610 for use or threatened use of a firearm. The district court treated the prior conviction as a crime of violence, increasing the base offense level and Guidelines range, and sentenced Keast to 46 months' imprisonment.
Procedural history
The District of Oregon increased Keast's base offense level from 14 to 20 based on its conclusion that his prior aggravated Oregon unlawful-use-of-a-weapon conviction was a crime of violence, producing a Guidelines range of 51–63 months. The court imposed a below-Guidelines sentence of 46 months. The Ninth Circuit issued a dispositive order vacating the sentence and later issued this opinion explaining its reasoning.
Remand instructions
Vacate Keast's sentence and remand for resentencing using the correct Guidelines calculation, including the lower recommended range of 30–37 months rather than 51–63 months.