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United States v. Walker

United States District Court, D. Kansas

June 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWARD WALKER, Defendant.

          MEMORANDUM

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         This memorandum is in response to Defendant's Objection Number 1 to the Presentence Investigation Report (“PSR”) prepared in this case (Doc. 43). Defendant Edward Walker objected to Paragraph 21 of the PSR, arguing his 1998 conviction for aggravated robbery should not have been classified as a “crime of violence.” The Court reviewed the parties' briefs and heard the parties' oral arguments at the sentencing hearing held on June 9, 2017. At the hearing, the Court sustained Walker's objection. The purpose of this memorandum is to memorialize the Court's ruling.

         I. Factual and Procedural Background

         On August 16, 2016, Defendant Edward Walker pleaded guilty to violating 18 U.S.C. § 922(g)-possession of a firearm by a prohibited person. Before Walker's sentencing, the U.S. Probation Office prepared a PSR using the 2015 Guidelines Manual. The guideline for § 922(g) offenses is found in § 2K2.1 of the Guidelines. That section provides that an offense involving the possession of a firearm after sustaining at least one felony conviction of either a “crime of violence” or a “controlled substance offense” has a base offense level of 20.[1]

         But if the offender has not previously been convicted of a “crime of violence, ” and is instead merely a “prohibited person at the time the defendant committed the instant offense, ” then the base offense level would only be 14.[2]

         In 1998, Walker was convicted of aggravated robbery in Sedgwick County District Court, Wichita, Kansas. He was sentenced to 89 months' custody. The Complaint filed in the 1998 case alleged that

On or about the 16th day of November, 1997, A.D., one Edward L. Walker did then and there unlawfully, take property, to-wit: a Tommy Hilfiger jacket, from the person or presence of another, to-wit: [Victim 1] and [Victim 2], by force or threat of bodily harm to a person, to-wit: [Victim 1] and [Victim 2], while Edward L. Walker was armed with a dangerous weapon, to-wit: black handgun.

         Probation concluded that Walker's aggravated robbery conviction qualified as a “crime of violence, ” and applied the base offense level of 20 accordingly. Probation reasoned that the statutory definition of aggravated robbery, as defined in K.S.A. § 21-3427, has “as an element the use, attempted use, or threatened use of physical force against the person of another, ” and the “force” required by the statute is “violent force, ” as set out in Johnson v. United States.[3]

         After reviewing the PSR, Walker objected to Probation's decision to apply the base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A). He contended that Kansas aggravated robbery does not qualify as a “crime of violence, ” and his base offense level should have been 14 under § 2K2.1(a)(6), based on his assertion that he “was a prohibited person at the time the defendant committed the instant offense.”

         II. Discussion

         The sole issue before the Court was whether aggravated robbery, as defined in K.S.A. § 21-3427, qualified as a “crime of violence, ” thus warranting a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A). The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that “has as an element the use, attempted use, or threatened use of physical force against the person of another” (the “elements clause”).[4]

         Although “physical force” is not defined by the Guidelines, the U.S. Supreme Court held in Johnson that “physical force” means “violent force, ” which is a “force capable of causing physical pain or injury to another person.”[5] Mere offensive touching will not suffice.[6]Accordingly, Walker's prior conviction would only qualify as a crime of violence if the statute requires the use, attempted use, or threatened use of violent, physical force against the person of another.

         At the time of Walker's conviction, Kansas defined simple robbery as “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.”[7] K.S.A. § 21-3427 then provided: “Aggravated robbery is a robbery . . . committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” Although the simple robbery statute (K.S.A. § 21-3426) is indivisible, [8] the aggravated robbery statute (K.S.A. § 21-3427) is divisible because it sets out elements of the offense in the alternative, creating two distinct offenses. First, the aggravated robbery statute criminalizes robbery “committed by a person who is armed with a dangerous weapon . . . .”[9] Second, it criminalizes robbery “committed by a person . . . who inflicts bodily harm upon any person in the course of such robbery.”[10] Accordingly, the Court employed the modified categorical approach to determine which of these alternative offenses formed the basis of Walker's prior conviction.[11]

         The Complaint relating to Walker's conviction clearly shows that Walker was charged with aggravated robbery committed by a person who is armed with a dangerous weapon (“armed robbery”). Thus, the Court had to determine whether that offense constitutes a “crime of violence” under the Guidelines' elements clause. Put another way, the issue became whether “the taking of property from the person or presence of another by force or by threat of bodily harm to any person” committed “by a person who is armed with a dangerous weapon”[12] requires the use, attempted use, or threatened use of violent, physical force against the person of another.

         This determination involves a two-step inquiry: first, the Court “must identify the minimum ‘force' required by [Kansas] law for the crime of [aggravated] robbery;” second, the Court must “determine if that force categorically fits the definition of physical force” required by the Guidelines.[13]

         Walker argued that under United States v. Nicholas, [14] Kansas simple robbery is not a crime of violence. And according to Walker, Kansas armed robbery “can be simply a robbery while in possession of a weapon, ” thus it is not a crime of violence because the statute “does not require an intentional threat to the victim, ” and “does not require the infliction or threat of serious bodily injury.” The Government countered that Nicholas should not dictate the outcome here, because armed robbery requires the added element of “armed with a dangerous weapon.” This dangerous weapon requirement, the Government asserted, is sufficient to “meet the threat of force or injury requirement used by the Tenth Circuit.”

         A. The Nicholas Decision

         In Nicholas, the Tenth Circuit held that a conviction for simple robbery under K.S.A. § 21-3426 required nothing more than de minimis physical contact or the threat of physical contact.[15] This does not rise to the level of “violent force, ” and therefore did not qualify as a “violent felony” under the elements clause of the Armed Career Criminal Act (“ACCA”).[16]In other words, Kansas simple robbery-“the taking of property from the person or presence of another by force or by threat of bodily harm to any person”-does not require the use, threatened use, or attempted use of “violent force.”

         In reaching this conclusion, the Nicholas Court first looked to Kansas law to determine the minimum force required by Kansas law to sustain a robbery conviction. In State v. McKinney, [17] the Kansas Supreme Court concluded that “the mere act of snatching [a] purse ‘constituted the threat of bodily harm' required for a robbery conviction.”[18] Accordingly, the Nicholas Court concluded that “mere purse-snatching” was the lowest level of conduct that could support a conviction under the statute.[19]

         Having determined the minimum force necessary under Kansas law to support a robbery conviction, the Nicholas Court then considered whether that force categorically fit the definition of “physical” or “violent force”-force capable of causing physical pain or injury to another person. The court recited two decisions from other circuits-United States v. Parnell[20] and United States v. Bell.[21] Both of these cases concluded that the relevant robbery statute at issue in the case could be applied to conduct falling short of violent force. Thus, the two robbery statutes analyzed in Parnell and Bell did not require the use, attempted use, or threatened use of physical force.

         In Parnell, the Massachusetts armed robbery statute encompassed the “snatching of a purse from a victim's hand, ” which the court determined “does not constitute force ‘capable of causing physical pain or injury to another person.' ”[22] And in Bell, the Missouri robbery statute supported a conviction based on testimony that the defendant “bumped” the victim's shoulder, “yanked” her purse away, and engaged in a “slight” struggle with the victim over the purse.[23]Under these facts, the Bell majority concluded that the robbery statute could be applied to conduct falling short of violent force.[24] In other words, the robbery statutes at issue in Parnell and Bell could both support a robbery conviction based upon the use of de minimis physical contact-which does not constitute force capable of causing physical pain or injury to another person.

         The Tenth Circuit in Nicholas was unable to see an appreciable difference between the degree of force necessary to sustain a conviction under the robbery statutes at issue in Parnell and Bell, and the minimum force required by Kansas law to sustain a robbery conviction (mere purse snatching). Accordingly, the Tenth Circuit concluded that “Kansas robbery does not necessarily require the use, attempted use, or threatened use of violent force against the person of another.”[25]

         Shortly after Nicholas was decided, this Court applied Nicholas (holding that Kansas simple robbery was not a “violent felony” under the ACCA's elements clause) to hold that Kansas simple robbery was not a “crime of violence” under the Guidelines' elements clause.[26]While instructive, these cases only solve one-half of the equation-Kansas simple robbery does not require the use of “violent force.” But Walker's crime of conviction was for armed robbery under K.S.A. § 21-3427-which is simple robbery “committed by a person who is armed with a dangerous weapon”[27] As such, the ...


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