ERIC F. MELGREN, 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.
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
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.
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."
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").
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."
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."
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"
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.
Walker argued that under United States v. Nicholas,
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.
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,
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
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.'"
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."
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.
B. Armed Robbery Is Not a Crime of Violence
The minimum "force" required by Kansas law for the crime of armed robbery is indistinguishable from the minimum "force" required for the crime of simple robbery. In State v. Buggs,
Thus, any robbery—even "mere purse-snatching"—committed while concealing a dangerous weapon would constitute armed robbery under K.S.A. § 21-3427. The robber would not need to use the weapon, and the victim would not even need to be aware of its presence. Accordingly, "mere purse-snatching" is the minimum "force" required to support a conviction for armed robbery. And, under Nicholas, such de minimis contact does not rise to the level of "violent force," i.e., force capable of causing physical pain or injury.
For that reason, the Court agreed with Walker that the addition of the "dangerous weapon" element is not enough to satisfy the requirement of "physical force" under the Guidelines' elements clause. Of course, armed robbery is a serious and dangerous crime. And, as noted by the Kansas Supreme Court, the presence of a dangerous weapon may increase the danger of personal harm.
As a final note, the Court recognizes that this decision is distinguishable from a similar case it recently decided, United States v. Corral-Garcia.
Although the Court reached the opposite conclusion in this present case, Corral-Garcia is distinguishable because the Kansas aggravated assault statute requires that the defendant use a deadly weapon during the commission of the assault.
Yet Kansas armed robbery does not necessarily require the defendant to use or threaten to use a greater degree of force than necessary to support a simple robbery conviction. A conviction for armed robbery can result without the defendant ever using or displaying a weapon; the victim does not even need to know such a weapon exists. In such a case, the defendant has not used a greater degree of force (as compared to simple robbery), and the defendant has not threatened the use of a greater degree of force. Thus, the Court's conclusion in this case is entirely compatible with its holding in Corral-Garcia.
Because Kansas armed robbery does not require the use or threatened use of a greater degree of force than simple robbery, Walker's conviction cannot constitute a crime of violence under the Guidelines' elements clause. Therefore, the Court sustained Walker's Objection Number 1 to the PSR.
The term "crime of violence" is also defined as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that "is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). However, the parties' arguments only implicate the elements clause, so the Court will confine its analysis accordingly.
However, the U.S. Sentencing Commission promulgated an amendment to § 4B1.2, which modified the 2015 Manual. This amendment "eliminates the residual clause in the career offender guideline definition of `crime of violence.'" Patti B. Saris, Definition of Crime of Violence (Aug. 1, 2016), as reprinted in U.S. Sentencing Comm., Supplement to the 2015 Guidelines Manual (2015). "Upon the August 1, 2016, effective date, the amended guidelines, as set forth in this document, will supersede the versions of §§ 4B1.1 and 4B1.2 set forth in the 2015 Guidelines Manual . . . and, together with the rest of the 2015 Guidelines Manual, will constitute the operative Guidelines Manual. Id.