Federal Public Defender for the Central District of California’s DFPD Jonathan Libby successfully convinced the 9th Circuit that our client’s prior convictions for Alabama robbery and California second degree robbery were not crimes of violence under the Armed Career Criminal Act.

The panel vacated a sentence and remanded for resentencing in a case in which the district court imposed an enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (ACCA), on the ground that the defendant had four prior convictions for violent felonies.

The panel held that first-degree robbery under Alabama Criminal Code § 13A-8-41 is not a violent felony under ACCA because the force required to support a conviction for third-degree robbery under Alabama law is not sufficiently violent to render that crime a violent felony under ACCA, and the Government has waived any argument that the statute is divisible.

The panel held that United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015) (holding that California robbery is not a violent felony under ACCA’s force clause because it can be committed where force is only negligently used and because the statute is indivisible), is dispositive as far as defendant’s conviction for second-degree robbery under Calif. Penal Code § 211 is concerned.

Because two of the defendant’s four prior convictions are not violent felonies under ACCA’s force clause, the panel concluded that the defendant should not have been subject to ACCA’s fifteen-year mandatory minimum sentence, which requires at least three previous convictions of violent felonies.

Link to full Opinion here.