Summary
The Ninth Circuit affirmed Jessie Chavez-Echeverria’s sentence for being a felon in possession of a firearm. The court held that his prior Oregon conviction for attempted first-degree assault qualifies as a crime of violence under the force clause of U.S.S.G. § 4B1.2(a), because Oregon’s substantial-step requirement entails the attempted use of physical force. The court further held that its precedent did not require applying the probable-desistance test to the force-clause analysis.
Topics
Practice areas
Questions Presented
- Whether attempted first-degree assault under Oregon law qualifies categorically as a crime of violence under the force clause of U.S.S.G. § 4B1.2(a)(1).
- Whether the Ninth Circuit's interpretation of attempted use of physical force requires application of the probable-desistance test used in some substantive criminal-attempt cases.
- Whether the district court properly increased Chavez-Echeverria's base offense level under U.S.S.G. § 2K2.1(a)(1).
Holdings
- Attempted first-degree assault under Oregon law qualifies as a crime of violence under the force clause in U.S.S.G. § 4B1.2(a)(1) because Oregon's offense requires a defendant to take a substantial step toward causing serious physical injury to another, which necessarily entails a substantial step toward the use of physical force.
- The probable-desistance test used by the Ninth Circuit in analyzing some substantive criminal-attempt offenses is not imported into the force clause's meaning of attempted use of physical force.
Key quotations
“Because an Oregon conviction for attempted first-degree assault requires a defendant to take a substantial step toward causing serious physical injury to another, we affirm the sentence imposed by the district court.” (3)
“An offense requires the “attempted use” of physical force within the meaning of § 4B1.2(a) if it necessarily entails “conduct that constitutes a substantial step toward the use of physical force.”” (10)
“The force clause does not concern whether attempting a particular crime under state law is comparable to attempting that crime under federal law.” (14)
“Because attempted first-degree assault under Oregon law requires that a defendant take a substantial step toward causing serious physical injury, it qualifies as a crime of violence under the force clause.” (17)
Factual background
Chavez-Echeverria pleaded guilty to being a felon in possession of a firearm. At sentencing, the government sought a base offense level of 26 under U.S.S.G. § 2K2.1(a)(1), which requires at least two prior felony convictions for crimes of violence. He conceded that his 2015 Oregon third-degree assault conviction qualified as one predicate but disputed that his 2021 Oregon conviction for attempted first-degree assault qualified as the second predicate.
Procedural history
Chavez-Echeverria pleaded guilty without a plea agreement to violating 18 U.S.C. § 922(g)(1). The district court treated his prior Oregon conviction for attempted first-degree assault as a second crime-of-violence predicate, calculated a Guidelines range of 108 to 135 months, and imposed an 80-month sentence. He timely appealed, and the Ninth Circuit affirmed.