[00:00:00] Speaker 00:
United States versus Wiggins.

[00:00:06] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:10] Speaker 02:
My name is Kathleen Shen, and I represent the appellate, Mr. Brian Wiggins.

[00:00:14] Speaker 02:
Mr. Wiggins' sentence should be vacated because his 2008 conviction for Oregon second degree assault is not a crime of violence

[00:00:22] Speaker 02:
because it could be based on merely negligent conduct as an accomplice.

[00:00:26] Speaker 02:
The district court's conclusion that the offense was divisible between principal and accomplice liability was wrong.

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The district court relied on the 2013 Oregon Supreme Court decision state versus Phillips.

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to conclude that the two are divisible offenses.

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But that wasn't the law when Mr. Wiggins was convicted in 2008.

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And before that decision, the Oregon Court of Appeals had clearly rejected the argument that jury unanimity was required as between principal and accomplice liability, which is, I think, actually the majority rule.

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But even if principal liabilities were divisible from accomplice liability,

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The Shepard documents in this case do not reveal whether Mr. Wiggins was convicted of second degree assault as a principal or an accomplice.

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Under Oregon law, accomplice liability does not have to be separately pleaded.

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And you can be charged as a principal and convicted as an accomplice.

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So the mere fact that the indictment, verdict, and judgment form don't refer to accomplice liability doesn't tell us that he was convicted as a principal.

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He could have been convicted as an accomplice without that being stated in any of those documents.

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And while the jury instructions could theoretically reveal whether he was convicted as a principal or an accomplice, they're just not in the record.

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And so the government can't rely on those to meet its burden of proof.

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And that's a problem because in 2008, in Oregon, you could be convicted as an accomplice so long as the substantive offense that you were convicted of was the natural and probable consequence

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of your conduct in another offense.

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That is, if you were negligent with respect to that assault.

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So that principle derives from Oregon case law.

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It's clearly stated in the Gibson case, but it's also restated even after the codification of accomplice liability in 1971 in State v. Fitzgerald.

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And this specific instruction was actually affirmed on plain error in Chapman in 2006, which is just two years

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before Mr. Wiggins' conviction was sustained.

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And it was reflected in the pattern jury instructions that were in place at the time of Mr. Wiggins' conviction, which this court, of course, may consider when interpreting state law.

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And so based on the law.

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Let me interrupt you.

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If the pattern jury instruction was not an accurate statement of Oregon law at the time, do we need to follow the pattern jury instruction or what the law actually was?

[00:02:53] Speaker 02:
Your Honor, I think that's a tough question, but I think in this case, given taking into account the state court decision that existed at the time and the pattern jury instruction, when you look at this categorical approach question, which is what does this conviction stand for, what is the least culpable conduct that could result in this conviction, I think you have to take into account the pattern jury instruction and you have to take into account the state law

[00:03:18] Speaker 02:
as it existed at the time, and come to the conclusion that this conviction for Oregon's second degree assault could in fact be based on merely negligent conduct, on the fact that this assault was merely foreseeable, which we know is not enough to satisfy the categorical approach under the Elements Clause.

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But the Oregon Supreme Court has now made it very clear

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that you don't have to charge individually whether someone is the principal or the accomplice because they're not separate offenses.

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Correct?

[00:03:55] Speaker 03:
Yes.

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And in fact, the Oregon Court of Appeals has found that it's a valid ineffective assistance and counsel claim if someone didn't challenge this very jury instruction.

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Would you agree to that?

[00:04:14] Speaker 02:
Your Honor, there is Oregon Court of Appeals decisions going both ways on that question, whether or not it was ineffective.

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And there's also Oregon, I believe, this isn't cited in the cases, or in my briefs, but in Lizarraga, Regalado versus Primo, they deny summary judgment on the question of whether it would have been ineffective to fail to object to this instruction at around the time Mr. Wiggins was convicted.

[00:04:38] Speaker 02:
So there is this.

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There is confusion as to what the state of the law should have been, especially if you apply this retroactivity principle that we generally do apply.

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But I think if you just look at these cases first, Hale versus Black, which is cited in the briefs, says it was not ineffective not to challenge this conviction.

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If you look at what actually Oregon courts were doing at the time in around 2006, Chapman affirms on plain error a conviction for second degree assault in which this instruction was given, which is another indication that this instruction was commonly in use.

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And I just think the fact that there are so many ineffective assistance counsel or post-conviction claims from this time period in which this instruction was given, the natural and probable consequences instruction was given,

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and was not objected to, and particularly including assault cases, shows that there certainly is a realistic probability or that this conviction was, in fact, based on a finding of negligence or could have been based on a finding of negligence.

[00:05:47] Speaker 01:
Do you agree with Judge Aiken that we don't even need to look at the actual cases because we can just presume that the law stated in the

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inaccurate instruction was applied in some cases?

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I don't agree that we don't look at the cases.

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But when I look at the cases that were in place in those time, I actually think they're helpful.

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So the government, it relies heavily on this 2004 Oregon Court of Appeals decision and LAOF, where they found there was not sufficient evidence to support accomplice liability in an assault case.

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But importantly, ANLOF doesn't address the, it's not about the instruction.

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It's a sufficiency claim.

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The claim that the Court of Appeals rejects in that case

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is that any conduct by a co-conspirator is automatically sufficient for accomplice liability, which is not the claim we're making here.

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And I think it's really important that an in-law, when they're finding there's insufficient evidence, part of their reasoning

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is that there's no evidence that the defendant knew or should have known that his accomplice was going to possess a knife, which is the conviction at issue there.

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So clearly, even in Anlof, they are applying a foreseeability standard to determining whether there's sufficient evidence to hold him liable as an accomplice.

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And that's fully consistent with the natural and probable consequences instruction.

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I think Anlof actually supports that instruction in a large degree.

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Just whatever the Oregon Supreme Court has said more recently about what Oregon practitioners should have been doing in the 2000s, in fact, this instruction was being given, and people were being convicted on this theory, and it wasn't rare, and it happened quite a bit.

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I'd also just like to touch.

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If it happened erroneously, the Supreme Court has actually said that it was settled

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well in advance, including before this trial, that that instruction was erroneous.

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Does that matter if the jury was improperly instructed?

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So what I'm asking you is, if we can look at the Oregon Speedport case and determine that this instruction was not a correct statement of the law when it was given, how does that factor in to our analysis here?

[00:08:12] Speaker 02:
Your Honor, I understand that the Oregon Supreme Court says that the instruction was wrong and would have been wrong in 2008.

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And I understand your question.

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But I think when you look at the purpose of the categorical approach, which is to answer the question of what conduct does this conviction stand for, then I think that has to take into account a real look at what the law said at the time, not applying the legal fictions about retroactivity or what would have been obvious

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or taking as gospel what judges might say on post-conviction review when they're trying to determine whether this person should get a new trial or not.

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At the time, in 2006, it was not plainly erroneous to give this instruction.

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This instruction and this law, this legal principle that accomplice liability could be based on the natural and probable consequences of your conduct in another offense, it was part of the patent instruction, but it had been reaffirmed by the Oregon Supreme Court

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both before and after the codification of the model penal code.

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And like I said, I think ANLOP is fully consistent with the negligence standard.

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So I take it that the Oregon Supreme Court now says something different.

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But if you read the case, they're looking for evidence of foreseeability.

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And that is consistent with the instruction.

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And that is consistent with the fact that it was not considered erroneous to give this instruction.

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In 2008, the real answer to the question of what were the elements of second degree assault and could someone be convicted of second degree assault based on mere negligence, I think the answer to that question is yes.

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And that renders the offense over broad.

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But what do we do about the fact that the Oregon Supreme Court, and we're supposed to follow the high state court, says that at the time of this instruction,

[00:09:58] Speaker 03:
it was wrong, and that everyone should know it was wrong.

[00:10:04] Speaker 02:
Your Honor, I think what this Court should do is look to the categorical approach, which is the principle of federal law, which answers the question of how we determine a historical conviction satisfies a federal definition.

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And we can't look at the facts of the case, because that would put judges in the positions of the jury.

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So the question we ask instead is, what are the facts the jury necessarily would to have found?

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And the Supreme Court's clear that you look to the law at the time of the offense.

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We ask what is the least offensive conduct that could violate the law in that state at the time.

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And according to the Oregon Supreme Court, you could violate it negligently by being unaccomplished.

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And everyone should know it.

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Now, you may be right that this

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That's not fair.

[00:11:01] Speaker 03:
Everyone should not have known it.

[00:11:03] Speaker 03:
But that's kind of what the work in the Supreme Court has said, hasn't it?

[00:11:06] Speaker 02:
Your Honor, I think that's a legal fiction that we apply when we ask what the law always was.

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But the Supreme Court's been clear that when we're applying the categorical approach, we look at the law in place at the time.

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And I think if you look at the motivations of the reasoning behind the categorical approach, which is, again, to remove

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to look at the conviction and to ask the question, what is the least culpable conduct this conviction could be for, given what the jury necessarily would have found?

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The answer to that question is that it could be based on negligence.

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And again, I would point to this court, I think Ann Lough, Chapman, Fitzgerald,

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The pattern jury instruction all support the conclusion that there is a realistic probability that this jury instruction would have been given, and this legal principle would have supported a conviction for Oregon second degree assault based on mere negligence.

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And I would point to the court to the fact in Capleton,

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The Massachusetts Supreme Court does look to the laws that exist at the time, notwithstanding subsequent legal developments.

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And again, I think if you look at the Supreme Court's reasoning in Mathis, and they talk about why we don't just take allegations in the indictment as gospel, but really do this kind of rigid question, they say, look, the defendant may not have challenged

[00:12:22] Speaker 02:
that language in the indictment because there would have been no reason to.

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And I think that same reasoning applies here.

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This was the pattern instruction.

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It had been repeatedly reaffirmed, including just two years before Mr. Wiggins was convicted in 2008.

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And the Chapman case isn't cited in my briefs, but the citation is 149, Pacific 3rd, 284.

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It's very much a realistic probability that this is a conviction that rests on negligence, and it would have rested on negligence in 2008, and that renders it over-broad under the categorical approach.

[00:12:52] Speaker 00:
Council, let me switch gear, and if you need a little time, we'll give it, because we have a lot of questions on this.

[00:12:58] Speaker 00:
But the district court didn't get into a robbery set.

[00:13:03] Speaker 00:
I'll let the Tenth Circuit run that to ground if they think it needs to run to ground.

[00:13:07] Speaker 00:
It needs to run to ground with me, the robbery.

[00:13:10] Speaker 00:
And that is to say that he's convicted of first degree robbery.

[00:13:16] Speaker 00:
And to be convicted of that, he has to violate third degree robbery, Oregon Statute 164.395.

[00:13:26] Speaker 00:
And one of the elements of third degree robbery is the person uses or threatens the immediate use of physical force upon another, which seems like a dead match.

[00:13:37] Speaker 00:
for the elements.

[00:13:39] Speaker 00:
And so why is it not just an easy case that the first degree robbery counts?

[00:13:45] Speaker 02:
Your Honor, I would point this court to the Ninth Circuit's decision in Shelby.

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I don't have this at the top of my head, because I was really focused on the second degree assault.

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But it's well established in Oregon that the use of force, or the force required for third degree robbery, is simply per snatching.

[00:14:00] Speaker 02:
And the government hasn't challenged that.

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And this court, for example, in United States versus Bong,

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has held that mere purse snatching robberies where there's no violent physical force required don't satisfy the Elements Clause.

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And so the third degree robbery, despite its statutory language, does not satisfy the Elements Clause.

[00:14:19] Speaker 02:
I think that's clear from Shelby, and I'm happy to if there's another case I need to cite.

[00:14:26] Speaker 02:
But I think that's uncontroversial, and the government hasn't argued otherwise.

[00:14:30] Speaker 02:
And the district court hung a task on the use of the weapon element.

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But as I explained in my reply brief,

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And in my opening brief, the use of a weapon is not the use of a weapon against the person of another.

[00:14:41] Speaker 02:
Of course, you can use a weapon without using violent physical force against another person just on its face.

[00:14:46] Speaker 00:
And so for that reason... So you're saying you can personage while being armed?

[00:14:50] Speaker 02:
You can personage while being armed.

[00:14:52] Speaker 02:
You can personage, you know, after shooting a gun at property, which of course wouldn't satisfy this elements clause.

[00:14:59] Speaker 02:
The language of the statute just on its face does not require the gun to be used against another person, and so it doesn't satisfy the Elements Clause for that reason.

[00:15:08] Speaker 02:
I say I'm out of time.

[00:15:11] Speaker 02:
Thank you.

[00:15:12] Speaker 00:
Any questions?

[00:15:14] Speaker 00:
All right, thank you, Council.

[00:15:44] Speaker 04:
Good morning and may it please the court.

[00:15:45] Speaker 04:
My name is Paige Hammer and I represent the United States.

[00:15:49] Speaker 04:
The government is asking this court to affirm the district court's finding that Mr. Wiggins was convicted of a crime of violence and therefore subject to sentencing as a career offender.

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Unless the court would like to start elsewhere, I'd like to respond to the question that Judge McHugh asked Ms.

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Shen about whether or not

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It factors that whether we look to jury instructions or we look to the statute.

[00:16:10] Speaker 04:
And you look to the statute.

[00:16:12] Speaker 04:
It's very clear when we look through Deskamps, Mathis, how this court has viewed the categorical and modified categorical approaches, is we're looking at elements.

[00:16:22] Speaker 04:
We're looking at the law itself.

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And perhaps jury instructions can be helpful when they accurately reflect what the statute with the law is.

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But here, the natural and probable consequence is jury instruction

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is not accurate, certainly after 1971.

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The defense's reliance on the Court of Appeals' case law prior to Lopez-Manjara's, I think, is also misplaced.

[00:16:47] Speaker 04:
In Gibson itself, the court said that the natural probable consequence of jury instruction was virtually meaningless, and there were serious questions about its validity.

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In Anloff in 2000, the court said the exact same thing.

[00:17:01] Speaker 04:
questioning whether or not it was even an accurate reflection of the law at any point in time.

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And in Anlof itself, the court cited Stark, Hightower, Holloway, Moriarty, all cases that involved sufficiency of the evidence and whether or not there was enough evidence for the jury to find that a person had acted as an accomplice.

[00:17:25] Speaker 04:
And each time, in each of those cases, if we look in the language,

[00:17:30] Speaker 04:
each time the Court of Appeals' focus is on the intent of whether or not the person being accused of acting as an accomplice intended or facilitated the crime of the principal.

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And each time the answer was yes.

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And so ultimately, to conclude in that sense, the jury instructions can be helpful, but they are not the law.

[00:17:52] Speaker 04:
The law is the law.

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And when we're applying the categorical approaches, we must look there.

[00:17:59] Speaker 03:
I mean, I understand your argument, and we have to start with the statute and we have to determine whether it's divisible and we have to apply the modified categorical approach.

[00:18:11] Speaker 03:
And we have now an Oregon Supreme Court decision that tells us that when this instruction was given, it was not an accurate statement of the law.

[00:18:21] Speaker 03:
But as your friend has pointed out, this is the jury instruction under which this man was convicted.

[00:18:31] Speaker 03:
So it does seem a little like a bait and switch that we're now going to say, oh, well, they couldn't have found you guilty of an intent that doesn't meet the requirement for a crime of violence.

[00:18:48] Speaker 03:
because even though they were incorrectly instructed, even if they did.

[00:18:53] Speaker 03:
I mean, how do we deal with that here?

[00:18:58] Speaker 04:
Ultimately, Your Honor, the question isn't whether or not this natural probable consequence of jury instruction was given to in Mr. Wiggins' state court case, because that is a factual question.

[00:19:08] Speaker 04:
And the argument by defense is really claiming legal error in the state court conviction.

[00:19:14] Speaker 04:
And what matters is, what was the state of the law at the time of Mr. Wiggins' conviction?

[00:19:20] Speaker 04:
And here, since 1971, Oregon's accomplice liability statute has required specific intent

[00:19:26] Speaker 04:
of the accomplice to promote or facilitate the act of the principal.

[00:19:30] Speaker 04:
This court in Dieter looked at something similar within the context of Section 2, which is similar to Oregon's accomplice liability statute.

[00:19:39] Speaker 04:
There this court said that accomplice liability and principal liability are just theories of liability

[00:19:44] Speaker 04:
They are not elements, they are not means.

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They are therefore not relevant to the first question when we're applying the categorical approach of whether or not the statue is divisible.

[00:19:54] Speaker 04:
And so if it's not an element or a mean, whether or not he was convicted as a principal and an accomplice is irrelevant.

[00:20:02] Speaker 04:
And that is something that this court said in McGuire itself and that Dieter cites too.

[00:20:08] Speaker 04:
So the real question here is,

[00:20:12] Speaker 04:
Was Mr. Wiggins convicted of a crime of violence by actually applying the categorical approach as it's meant, not digging into the weeds of what jury instructions were given?

[00:20:23] Speaker 04:
Was there legal error at the state court level?

[00:20:26] Speaker 04:
That's not the question for this court.

[00:20:28] Speaker 03:
And...

[00:20:32] Speaker 04:
As it relates to the second degree assault statute and to the first degree robber statute, yes.

[00:20:38] Speaker 04:
The second degree assault statute is divisible because when we look at the language itself, there are varying mens rea and actus reus.

[00:20:46] Speaker 04:
This court has said that that can be an indicator that it is divisible.

[00:20:50] Speaker 04:
Therefore, by it being divisible, that gives us the opportunity to use the modified categorical approach

[00:20:56] Speaker 04:
and look at the Shepard documents.

[00:20:58] Speaker 04:
And so then the next question is, were the Shepard documents adequate for the district court to find that he was convicted of a crime of violence?

[00:21:06] Speaker 04:
And the answer is yes.

[00:21:07] Speaker 04:
The information, when we look at first the jury verdict form, it says count six, assault in the second degree, physical injury.

[00:21:16] Speaker 04:
So then that begs the question, well, which subsection is it?

[00:21:20] Speaker 04:
And then we look to the indictment.

[00:21:22] Speaker 04:
And the language very clearly tracks subsection two.

[00:21:26] Speaker 04:
And there's no doubt that subsection two requires as an element.

[00:21:31] Speaker 04:
Subsection B. Oh, I'm sorry.

[00:21:32] Speaker 04:
Thank you, Your Honor.

[00:21:34] Speaker 04:
Subsection B. There's no question that in order for Mr. Wiggins to have been convicted of that crime, it would require the use, attempted use, or threatened use of force against another.

[00:21:46] Speaker 04:
It requires.

[00:21:47] Speaker 03:
Knowing and intentional.

[00:21:50] Speaker 03:
Correct?

[00:21:50] Speaker 04:
Say again, Your Honor.

[00:21:51] Speaker 04:
I apologize.

[00:21:52] Speaker 03:
Knowing and intentional.

[00:21:53] Speaker 03:
Knowing or intentional.

[00:21:55] Speaker 03:
Is the meds right?

[00:21:55] Speaker 04:
Yes, Your Honor, on subsection B and A, C is where the depraved heart recklessness comes in.

[00:22:04] Speaker 04:
And so.

[00:22:05] Speaker 03:
And so, under origin law, does that knowing and intentional apply to the infliction of the injury or just the atlas radius?

[00:22:22] Speaker 03:
And does it matter?

[00:22:24] Speaker 04:
I think that makes us go back to Borden, where the against part of the crime of violence language is a mens rea requirement.

[00:22:32] Speaker 04:
It's not an actus reus requirement.

[00:22:35] Speaker 03:
It's a mens rea requirement, but the Supreme Court's made it pretty clear that you can have a mens rea requirement that has nothing to do with injury to the person.

[00:22:45] Speaker 03:
So I can intend to take the act

[00:22:49] Speaker 03:
But I don't have any intention with respect to whether it interests anyone.

[00:22:56] Speaker 04:
I think I would point the court to... I apologize, Your Honor.

[00:23:01] Speaker 04:
I missed that last statement.

[00:23:04] Speaker 03:
I mean, we have a case law on that.

[00:23:06] Speaker 03:
For example, Sogen.

[00:23:08] Speaker 04:
I apologize, Your Honor.

[00:23:09] Speaker 04:
I am unfortunately not familiar with Sogen.

[00:23:12] Speaker 03:
Okay.

[00:23:13] Speaker 03:
Never mind.

[00:23:13] Speaker 03:
This wasn't raised, but it seems to me that if there's a problem with this statute in terms of whether it's a crime or violence, that's where the problem is.

[00:23:23] Speaker 04:
I think I would point, Your Honor, to Capwell.

[00:23:27] Speaker 04:
It's an Oregon case that says physical injury requires some form of external violence that produces harmful effect.

[00:23:33] Speaker 04:
I think implicitly that would mean there's some intent there.

[00:23:37] Speaker 04:
It can't just be an afterthought.

[00:23:46] Speaker 04:
Erin, I think I see I have some time left, though I won't necessarily use it all if I don't have to unless the court has questions.

[00:23:52] Speaker 04:
I would just briefly touch on the government's first argument in its brief regarding forfeiture of the specific argument related to the flawed jury instruction that's now being raised with this court.

[00:24:04] Speaker 04:
That argument was not raised to the district court.

[00:24:06] Speaker 04:
Certainly, trial counsel for Mr. Wiggins noted this divisibility issue.

[00:24:12] Speaker 04:
It somewhat, in a perfunctory manner, raises the idea of how Tristan may affect the district court of Oregon case.

[00:24:19] Speaker 04:
Tristan affects his client.

[00:24:22] Speaker 04:
But ultimately, whether or not this natural and probable jury consequences instruction is appropriately preserved for this court, our position is no.

[00:24:35] Speaker 04:
It was never raised.

[00:24:36] Speaker 03:
They argued Tristan, right?

[00:24:38] Speaker 03:
They argued Tristan.

[00:24:40] Speaker 04:
They did, Your Honor.

[00:24:41] Speaker 03:
In the district court.

[00:24:42] Speaker 03:
And the district court discussed Tristan with defense counsel in the sentencing hearing and with the government.

[00:24:52] Speaker 03:
And then the district court ruled, and the written order discusses Tristan's reasoning.

[00:25:01] Speaker 03:
I mean, in our case, a lot of them have to preserve it, isn't it?

[00:25:06] Speaker 04:
As it relates to the divisibility argument, I would agree that there was sufficient record for it to be appropriately preserved for this court.

[00:25:15] Speaker 04:
As it relates to the natural and probable consequences jury instruction argument, my argument is no.

[00:25:21] Speaker 04:
If the claim that it was appropriately raised, my response is it was raised in a perfunctory manner, and therefore the district court

[00:25:30] Speaker 04:
addressed it in a perfunctory manner, if at all.

[00:25:32] Speaker 04:
I don't believe that at any point in the record when we look at the filings to the trial court outside of the Tristan case itself and the associated filings of the parties in that case, the sentencing transcript or the district court's order, I don't believe natural and probable consequences is ever discussed or mentioned.

[00:25:53] Speaker 04:
The focus of Mr. Wiggins' trial court

[00:25:57] Speaker 04:
analysis was focusing on Tristan for this second degree assault, whether or not there was an appropriate mens rea, whether or not this recklessness mattered, raised the issue of divisibility between accomplice and principal liability, but the actual jury instruction, as far as I view the record, was not actually raised at all.

[00:26:21] Speaker 04:
Thank you.

[00:26:21] Speaker 04:
Unless this court has any further questions.

[00:26:23] Speaker 00:
I have a question on the robbery.

[00:26:24] Speaker 00:
I'm not ready to give up on that yet.

[00:26:27] Speaker 00:
The third degree robbery in Oregon has as an element that the person uses or threatens the immediate use of physical force, which of course that tracks 4B1.2.

[00:26:41] Speaker 00:
And whether it's a, if it's a person matching that can qualify, it doesn't say every person matching does.

[00:26:50] Speaker 00:
The offense, and it needs to be required, it's required to be proved

[00:26:55] Speaker 00:
that the defendant used or threatened the immediate use of physical force.

[00:26:59] Speaker 00:
It's not taking a purse off of a restaurant table when someone went to the restroom.

[00:27:06] Speaker 00:
And so why not?

[00:27:09] Speaker 00:
Why is that not fit?

[00:27:12] Speaker 04:
Are you talking about specifically subsection A?

[00:27:15] Speaker 00:
I'm talking about, well, I'm talking about, I don't care about any of the

[00:27:20] Speaker 00:
first degree subsections.

[00:27:22] Speaker 00:
I'm talking about if you're going to be convicted of first degree, you have to have one of those, but you also have to be convicted of all the elements of third degree.

[00:27:32] Speaker 00:
It's incorporated, lesser included offense.

[00:27:35] Speaker 00:
And one of the elements of third degree robbery is that you are convicted of.

[00:27:42] Speaker 00:
The jury's told you can't convict this person unless you find that person

[00:27:47] Speaker 00:
be unreasonably used or threaten the immediate use of physical force.

[00:27:52] Speaker 00:
And so there may be some person at things that don't.

[00:27:55] Speaker 00:
And so what do you get not guilty if you charge this?

[00:27:59] Speaker 00:
But some might.

[00:28:02] Speaker 00:
And those would be the ones you'd presumably get convicted of.

[00:28:06] Speaker 00:
Why is that not good enough?

[00:28:11] Speaker 04:
I think it goes to, and unfortunately this isn't contrary to the government's argument because we acknowledge that third degree robbery isn't a crime of violence because you can commit it in a way that doesn't attempt to use or threaten use of force.

[00:28:29] Speaker 00:
How can you say that when it says it's defined in this, the person uses or threatens the immediate use of physical force upon another person?

[00:28:37] Speaker 00:
It's an element.

[00:28:39] Speaker 04:
I think based off of the court's, and maybe I misunderstood the court's question, that I thought the court had said that there was a way that you could commit this without the use of force.

[00:28:48] Speaker 00:
Well, the answer was that, well, that includes person matching, so that's not good enough.

[00:28:54] Speaker 00:
And my response to that is maybe it would include a, you could charge, you could try to charge a person matching, but unless there's physical force, you're not going to convict.

[00:29:05] Speaker 04:
I think that's

[00:29:08] Speaker 04:
I don't necessarily have a disagreement, I guess, with the court's logic there.

[00:29:13] Speaker 03:
Our brief, I think we're live.

[00:29:17] Speaker 04:
Yes.

[00:29:21] Speaker 04:
Based off of the Ninth Circuit case law, I believe we cited that is, we did concede it.

[00:29:29] Speaker 03:
Pardon your honor.

[00:29:33] Speaker 04:
I would have to look back at my brief, but that does sound familiar.

[00:29:37] Speaker 03:
Now that's the U.S.

[00:29:38] Speaker 03:
case, sorry.

[00:29:39] Speaker 03:
I apologize.

[00:29:42] Speaker 00:
Are there other questions for counsel?

[00:29:45] Speaker 00:
All right, thank you, counsel, for your argument.

[00:29:47] Speaker 04:
Thank you, Your Honor.

[00:29:48] Speaker 00:
And I'll give you two minutes.

[00:29:49] Speaker 00:
Rebuttal.

[00:30:05] Speaker 02:
Your Honor, just quickly to address the idea that the accomplice liability is never relevant to the categorical approach.

[00:30:12] Speaker 02:
The guidelines require this court to consider aiding and abetting liability, doing as Alvarez indicates, that overbroad accomplice liability can render an offense categorically overbroad.

[00:30:22] Speaker 02:
And in 2008, accomplice liability did render this offense overbroad as our position.

[00:30:27] Speaker 02:
As far as the idea that the codification of accomplice liability in 1971 changed the law,

[00:30:34] Speaker 02:
In 1974, the Oregon Court of Appeals in Fitzgerald interpreted this precise statute to permit liability for the natural and probable consequences of the defendant's conduct in a different offense or the cooperating witness's conduct.

[00:30:47] Speaker 02:
But they were interpreting the statute and made clear that they did not believe that it had changed the law substantively.

[00:30:53] Speaker 02:
And as far as the preservation issue,

[00:30:59] Speaker 02:
The whole reason that the district court did the divisibility analysis was because it understood Tristan's point, that if the defense was not divisible between accomplice and principal liability, that would render the offense over broad.

[00:31:11] Speaker 02:
And I would point this court to volume 1, page 43, where the district court considers whether, under the categorical approach and due to accomplice liability under the statute, this offense is over broad.

[00:31:23] Speaker 02:
So I think this issue was squarely presented to and decided by the district court.

[00:31:27] Speaker 02:
even if we're using slightly different language on appeal.

[00:31:30] Speaker 02:
And finally, just on this question about Oregon third degree robbery, of course, as we well know, sometimes the words in a statute are not interpreted by courts to mean what one might naturally think that they mean.

[00:31:44] Speaker 02:
And as the Ninth Circuit reasoned in Shelby, I just had this pulled up, but I turned my page.

[00:31:54] Speaker 02:
Oregon third degree robbery does not require the victim to be

[00:31:56] Speaker 02:
feel much of anything and can be committed by a perpetrator who prevents resistance by acting so swiftly that the victim does not have time to resist.

[00:32:05] Speaker 02:
And that's at 939 Federal Third, 975.

[00:32:08] Speaker 02:
And consistent with this court's decision in Bong, that doesn't satisfy the Elements Clause and is why this robbery offense cannot render any error harmless.

[00:32:20] Speaker 02:
And so we'd ask for you to vacate the conviction and remand for re-sentencing.

[00:32:24] Speaker 02:
Thank you.

[00:32:25] Speaker 00:
Thank you, counsel, for your arguments.

[00:32:27] Speaker 00:
The case is submitted and counsel excused.