United States of America v. Christopher Robert Lawrence

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER ROBERT LAWRENCE,
Defendant-Appellant.
No. 17-30061
D.C. No.
2:13-cr-00001-SEH-1
ORDER*
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KELLY DAVID ANKENY, Sr.,
Defendant-Appellant.
No. 17-35138
D.C. Nos. 3:16-cv-01013-MO
3:04-cr-00005-MO-1
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Argued and Submitted July 12, 2018
Portland, Oregon
Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW, ** District
Judge.
After oral argument in these cases, we certified three questions to the
Oregon Supreme Court concerning whether Oregon first-degree robbery (Or. Rev.
Stat. § 164.415) (Robbery I) and Oregon second-degree robbery (id. § 164.405)
(Robbery II) are divisible. The Oregon Supreme Court accepted the questions but
has not yet rendered a decision. Based on Stokeling v. United States, 139 S. Ct. 544
(2019), the government moves in Kelly Ankeny’s case to vacate our certification
order to the Oregon Supreme Court and to affirm the judgment of the district court.
Christopher Lawrence, who was convicted of Robbery I, moves voluntarily to
dismiss his appeal.
Stokeling held that the elements (or force) clause of the Armed Career
Criminal Act (ACCA) “encompasses robbery offenses that require the criminal to
overcome the victim’s resistance.” 139 S. Ct. at 550. Based on this holding, the
government argues that Oregon third-degree robbery (Or. Rev. Stat. § 164.395)
(Robbery III), which forms the basis for Robbery I and II at issue in these appeals,
is now categorically a violent felony or crime of violence under Stokeling. As such,
** The Honorable Joan Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.

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the government argues, the question whether Robbery I and II are divisible is
moot, and United States v. Strickland, 860 F.3d 1224 (9th Cir. 2017), in which we
held that Robbery III is not a “violent felony” under ACCA, is no longer good law.
In Strickland we pointed to State v. Johnson, in which the Oregon Court of
Appeals affirmed a conviction for Robbery III where the defendant had snatched a
purse and a vase of flowers from an elderly victim as she was walking from her car
to her house. Strickland, 860 F.3d at 1227 (citing State v. Johnson, 168 P.3d 312,
313 (Or. Ct. App. 2007)). The victim testified that the incident happened so
quickly she did not actually feel much of anything. Id. The Oregon court ruled that,
“in those circumstances, the jury was entitled to infer that defendant intended to
use force sufficient to overcome any resistance that the victim may have offered
had she had more time to react and that defendant intended to use force sufficient
to prevent resistance.” Johnson, 168 P.3d at 315 (emphasis added). This set of facts
remains outside the scope of the elements clause as defined in Stokeling. Strickland
thus remains good law.
Lawrence’s motion to dismiss his appeal is granted, and we withdraw the
certification memorandum insofar as it relates to him. The government’s motion to
vacate the certification is denied. A copy of this order shall serve as and for the
mandate of this court for appeal No. 17-30061, USA v. Christopher Lawrence
only.

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