Scott Keast pleaded guilty to felon-in-possession-of-a-firearm charges under 18 U.S.C. § 922(g)(1). At sentencing, the district court concluded that Keast’s prior Oregon conviction for aggravated “unlawful use of a weapon” qualified as a “crime of violence” under the Guidelines and increased his base offense level and Guidelines range accordingly.
The Ninth Circuit disagreed and reversed. Applying the categorical approach, the panel determined that the Oregon firearm enhancement statute, Or. Rev. Stat. § 161.610(2), was narrower than the federal crime-of-violence definition, U.S.S.G. § 4B1.2(a)(1). Although the Oregon statute requires the “use or threatened use of a firearm,” it did not require that such use be directed “against the person of another.”
Still, the government argued that the firearm enhancement, when considered together with the unlawful possession statute, implied that the use or threatened use of the firearm must be against the defendant’s intended target. But the panel found no support for this reasoning in the statutory text or Oregon case law interpreting the text.
Finally, the Court concluded that, under United States v. Taylor, Keast met any relevant “realistic probability” burden because the Oregon statute is facially overbroad in relation to the Guidelines’ definition. Thus, Keast’s conviction was not categorically a “crime of violence.”
As such, the Ninth Circuit vacated the sentence and remanded for resentencing with instructions to apply the lower base offense level under the Guidelines.
Appeal from the District of Oregon.
Opinion by Sung, joined by Bea and Koh.