The Ninth Circuit has determined that an Oregon conviction for first-degree armed robbery is not a violent felony under the Armed Career Criminal Act (ACCA) because the statute does not require the defendant to overcome resistance by the victim through the use of force, but rather, the victim need not feel much of anything during the offense. In addition, although the statute requires the defendant to possess a deadly weapon during the commission of the robbery, the statute does not require the use of the weapon or that the defendant make any representations about the weapon. As such, the court found that the mere possession of the deadly weapon did not amount to the threatened or attempted use of violent force.
The court also assumed that the statute is divisible between offenses where the defendant “Is armed with a deadly weapon” and offenses where the defendant “uses or attempts to use a dangerous weapon.” The records did not specify under which sub-statute the petitioner was convicted in this matter.
Given the similarity between the definition of a violent felony under the ACCA and the definition of a crime of violence in the immigration context, this case may have persuasive value in immigration litigation.
The full text of United States v. Shelby can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/19/18-35515.pdf