In United States v. Strickland, No. 14-30168 the Ninth Circuit vacated a sentence because the term “physical force” under Oregon’s Third Degree Robbery statute doesn’t match the term’s use in the ACCA.

Strickland pled guilty to being a felon in possession of a firearm.  He was sentenced to 15 years under the ACCA for three prior violent felony convictions.  Strickland objected to the Oregon conviction for third degree robbery.  The District Court determined that the robbery satisfied the residual clause.  This was before Johnson v. US, now the residual clause can’t serve as the predicate for Strickland’s sentence.

The court noted that under the force clause the statute must have “as an element the use, attempted use, or threatened use of physical force against the person of another.”  and that when looking at a state statute the court looks at the text and the state court’s interpretations of the statue’s terms.

The Applicable state statute requires the use of threatened use of “physical force” upon another person.  The court indicated that the question presented is whether the term “physical force” means “violent force,” which is required for the ACCA.

The court noted that the state cases show that Oregon doesn’t require “physically violent force”  notating cases in Oregon where a thief tugged away a purse from a woman and the woman didn’t feel “much of anything.” This met the standard for that case because the thief used physical force to snatch the purse.  The court noted that “the statute does not focus on the extent to which the victim may or may not have felt the force, but rather on the perpetrator’s intent, while using force on the victim, that any resistance that the victim might offer be prevented or overcome.”  Other cases that met the statue included a case where a thief pulling away from a shopping guard was a robbery and that the statue was met when a victim and a thief had a tug of war over a purse.  Thus the statute is not a match to the force clause.  Therefore the robbery was not an appropriate predicate.  Since  the third degree was also not an enumerated offense it met no predicates for the ACCA and could not be used.

The ninth circuit vacated and remanded the sentence to the District Court, No. 14-30168

These ACCA cases where state priors are used to enhance a sentence must be given a critical eye.  each case and each statute must be evaluated in order to determine if the predicates can be challenged.  And just like in Strickland, cases saying what the law is may be vital.  If you have an ACCA enhancement please reach out to my office at [email protected] in order for us to look at your case.


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