NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 16 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-35138

                Plaintiff-Appellee,             D.C. Nos.    3:16-cv-01013-MO
                                                             3:04-cr-00005-MO-1
 v.

KELLY DAVID ANKENY, Sr.,                        MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, Chief Judge, Presiding

                       Argued and Submitted July 12, 2018
                    Submission Withdrawn September 18, 2018
                         Resubmitted January 15, 2020
                                Portland, Oregon

Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
      Kelly David Ankeny appeals the denial of his motion to vacate his

conviction under 28 U.S.C. § 2255.1 We have jurisdiction under 28 U.S.C. §§ 1291

and 2253(c)(2) and affirm.

      Ankeny was sentenced under the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e), because he had one conviction of a violent felony and two of

serious drug offenses. Ankeny filed a motion to vacate his sentence under 28

U.S.C. § 2255, arguing that after Johnson v. United States, — U.S. —, 

(2015), declared vague the “residual clause” of the ACCA’s definition of

“violent felony,” Ankeny’s predicate conviction of Oregon second-degree robbery

(Robbery II), Or. Rev. Stat. § 164.405, cannot be classified as a violent felony

under § 924(c); thus, he should not have been sentenced as an armed career

criminal. The district court denied the motion, holding that Ankeny’s Robbery II

conviction was of a crime of violence under the ACCA’s “force clause.” We

review that decision de novo. United States v. Parnell, 

, 978 (9th Cir.

2016).

      A crime is a violent felony under the force clause if it “has as an element the

use, attempted use, or threatened use of physical force against the person of



      1
         Although Ankeny’s prison term ended while this appeal was pending, he is
still subject to a term of supervised release and thus remains in custody for
purposes of § 2255. Matus-Leva v. United States, 

, 761 (9th Cir.
2002).

                                          2                                     17-35138
another.” 18 U.S.C. § 924(e)(2)(B)(i). “‘[P]hysical force’ means violent force—

that is, force capable of causing physical pain or injury to another person.” Johnson

v. United States, 

, 140 (2010) (citing Flores v. Ashcroft, 

,

672 (7th Cir. 2003)). Recently, the Supreme Court clarified that this definition

“encompasses robbery offenses that require the criminal to overcome the victim’s

resistance.” Stokeling v. United States, 

, 550 (2019).

      “[T]o determine whether a defendant’s conviction under a state criminal

statute qualifies as a violent felony under the force clause, we do not look to the

underlying facts of the defendant’s actual conviction.” United States v. Walton,

, 771 (9th Cir. 2018) (citing Mathis v. United States, 

,

2251 (2016)). Instead, we ask “whether the conduct proscribed by the statute

necessarily involves the use, attempted use, or threatened use of physical force

against the person of another.” Ward v. United States, 

, 917 (9th Cir.

2019) (quoting United States v. Geozos, 

, 898 (9th Cir. 2017))

(quotation marks omitted). “State cases that examine the outer contours of the

conduct criminalized by the state statute are particularly important because we

must presume that the conviction rested upon nothing more than the least of the

acts criminalized by that statute.” 

–72 (quoting United

States v. Strickland, 

, 1226–27 (9th Cir. 2017)) (internal quotation

marks omitted).


                                          3                                    17-35138
      But if a statute is “divisible,” meaning that what the state labels as a single

crime is effectively several different crimes, we apply a modified categorical

approach, “consult[ing] a limited class of documents, such as indictments and jury

instructions, to determine which alternative formed the basis of the defendant’s

prior conviction, and then apply the categorical approach under the subdivision

under which the defendant was convicted.” 

(quoting United States v.

Werle, 

, 619 (9th Cir. 2016)). “To be divisible, a state statute must

contain ‘multiple, alternative elements of functionally separate crimes.’” United

States v. Dixon, 

, 1196 (9th Cir. 2015) (emphasis omitted) (quoting

Rendon v. Holder, 

, 1085 (9th Cir. 2014)). The touchstone of a

divisible crime is “alternative elements, which are essential to a jury’s finding of

guilt,” rather than “alternative means, which are not.” 

(quotation

omitted). Elements are alternative if the prosecutor “must generally select the

relevant element from its list of alternatives. And the jury, as instructions in the

case will make clear, must then find that element, unanimously and beyond a

reasonable doubt.” 

764 F.3d at 1085).

      Robbery II is not categorically a violent felony. A person commits Robbery

II by committing third-degree Oregon robbery (Robbery III), Or. Rev. Stat.

§ 164.395, and

      (a) Represent[ing] by word or conduct that the person is armed with what
      purports to be a dangerous or deadly weapon; or

                                           4                                     17-35138
      (b) [Being] aided by another person actually present.

Or. Rev. Stat. § 164.405(1)(a)–(b). Robbery III, in turn, occurs when “in the course

of committing or attempting to commit theft . . . [a] person uses or threatens the

immediate use of physical force upon another person with the intent of: (a)

[p]reventing or overcoming resistance to the taking of the property or to retention

thereof immediately after the taking; or (b) [c]ompelling the owner of such

property or another person to deliver the property or to engage in other conduct

which might aid in the commission of the theft.” Or. Rev. Stat. § 164.395(1). We

have held that Oregon Robbery III is not a violent felony under the force clause

because “[s]tate cases show that Oregon doesn’t require physically violent force.”

(collecting cases); see also United States v. Shelby,

, 979 (9th Cir. 2019) (reaffirming Strickland after Stokeling). By

extension, because a defendant can commit Robbery II by having another person

present during a nonviolent Robbery III, Robbery II does not necessarily entail the

use of force.

      But as Ankeny concedes, Robbery II is divisible.2 Under Oregon law, each

subsection of § 164.405(1) is an alternative element that must be proven to a jury


      2
       We originally certified the question of Robbery II’s divisibility to the
Oregon Supreme Court, United States v. Lawrence, 

, 659 (9th Cir.
2018), which declined certification in part because it understood existing Oregon


                                          5                                   17-35138
beyond a reasonable doubt. State v. Gaines, 

, 1108–09 (Or. Ct. App.

2015) (holding jury must concur on theory of second-degree robbery); see also

State v. White, 

, 254–55 (Or. 2009) (though holding Robbery II’s two

elevating conditions constitute a single crime under state law, acknowledging that

they “involve proof of different facts”). That understanding holds true in Ankeny’s

case, where he was charged exclusively under subsection (a), corroborating our

conclusion that the statute is divisible. See 

–57

(permitting courts to “peek at the record documents” to determine whether state

treats items listed in a statute as elements). We therefore hold that Oregon Robbery

II is divisible and accept Ankeny’s concession.

      Under the modified categorical approach, the information and guilty plea

reveal that Ankeny was convicted of Robbery II under § 164.405(1)(a) because he

represented that he was armed with what purported to be a dangerous weapon

while committing Robbery III. We must therefore determine whether representing

that one is armed in the course of committing Oregon Robbery III necessarily

entails a threat of violent force.

      It does. A threat of violent force under the ACCA “requires some outward

expression or indication of an intention to inflict pain, harm or punishment.”



law to answer our certified question. United States v. Lawrence, 

,
589–90 (Or. 2019) (citing State v. Gaines, 

(Or. Ct. App. 2015)).

                                          6                                      17-35138


. Robbery II(a)’s representation element requires such an

outward expression: the defendant must actively communicate to the victim during

the course of a robbery that he or she is armed with what purports to be a

dangerous or deadly weapon. State v. Lee, 

, 1003 (Or. Ct. App. 2001)

(“[T]o commit second-degree robbery, the defendant must intend to cause the

victim to be aware of the fact that he or she is armed with a dangerous weapon.”).

Although Robbery III is not categorically violent, Robbery II(a)’s representation

element entails an implicit threat to use a purported weapon capable of serious or

deadly force if the victim resists the robbery. See, e.g., United States v. Perez-

Silvan, 

, 942–43 (9th Cir. 2017) (holding that unlawful touching

while “us[ing] or display[ing] a deadly weapon” constitutes a violent felony under

the ACCA).

      We further agree with the district court that Robbery II(a)’s representation

element is “conjoined” with Robbery III’s force element—that is, to commit

robbery and represent that one is armed, one must commit robbery by representing

that one is armed. The Oregon Supreme Court has described the elements in such

terms, explaining that higher degrees of robbery correspond with increased “levels

of threat that may persuade the victim to part with his or her property with more or

less reluctance.” 

. The Oregon Court of Appeals has

implicitly conjoined Robbery III’s force element and Robbery II(a)’s


                                           7                                    17-35138
representation element by describing Robbery II(a) as “commit[ing] theft while

representing that he was armed with what purported to be a deadly or dangerous

weapon . . . .” State v. Colmenares-Chavez, 

, 669 (Or. Ct. App. 2011)

(emphasis added). Moreover, Oregon Robbery II(a) cases always involve the

defendant’s using the representation that he or she was armed as the means of

threatening force against the victim. See, e.g., 

–50

(defendant threatened to stab loss-prevention employee during robbery); State v.

Shields, 

, 941 (Or. Ct. App. 2017) (defendant confronted victims with

a gun and demanded cash); State v. Christner, 

, 1086 (Or. Ct. App.

1981) (defendant threatened to shoot victim with a handgun).

      Although other facts that may elevate simple robbery to Robbery I or II

under Oregon law need not be tied to Robbery III’s force element, Robbery II(a)’s

representation element must. Unlike Robbery I, which criminalizes possessing but

not using a dangerous weapon during a robbery, 

, or

Robbery II(b), which criminalizes committing a robbery with the aid of another

person present who does not use or threaten force, State v. Morgan, 

,

694–95 (Or. Ct. App. 2015), Robbery II(a) requires active use of the representation

to commit the simple robbery. Ankeny has not cited and we are not aware of any

Oregon cases suggesting otherwise.




                                         8                                   17-35138
      Nor do we see a reasonable possibility that Robbery II(a) could ever be

applied to nonviolent conduct. See Gonzales v. Duenas-Alvarez, 

, 193

(2007). In the district court, Ankeny proposed that a defendant who inadvertently

displays a weapon during a nonviolent robbery but does not use the weapon to

effect the robbery could be guilty of Robbery II(a) without threatening violent

force. Ankeny rightly abandons that hypothetical here, because that defendant has

not committed Robbery II(a), which requires an intentional representation. 

. It would require vivid legal imagination to uncover a way to

represent affirmatively that one is armed during a robbery without at least

implicitly threatening to use the purported weapon if the victim resists. See

Moncrieffe v. Holder, 

, 191 (2013) (“[O]ur focus on the minimum

conduct criminalized by the state statute is not an invitation to apply ‘legal

imagination’ to the state offense; there must be ‘a realistic probability, not a

theoretical possibility, that the State would apply its statute to conduct that falls

outside the generic definition of a crime.’” (citation omitted)).

      Finally, Ankeny argues that under State v. Lee, Robbery II(a) does not

require proof that the defendant intends to threaten violent force against the victim.

In Lee, the defendant argued that the jury should have been instructed on

menacing—“by word or conduct . . . intentionally attempt[ing] to place another in

fear of imminent serious physical injury”—as a lesser included offense of Robbery


                                            9                                      17-35138


–03. The Oregon Court of Appeals held that menacing is not a

lesser included offense because Robbery II(a) does not require specific intent to

cause fear. 

The court reasoned that making the victim believe that the

defendant is armed with a dangerous weapon “does not necessarily” require proof

that “the defendant also intends to create in the mind of the victim the particular

mental state of ‘fear of imminent serious physical injury.’” 

posited

that a defendant who says “I have a gun, but I don’t want you to be afraid. Just

give me your money, and no one will harm you in any way” would be guilty of

Robbery II(a) but not menacing. 

that if Oregon does not require

proof of intent to frighten the victim, Robbery II(a) does not necessarily entail the

“threatened use of physical force” under the ACCA.

      Lee does not transform Robbery II(a) into a nonviolent crime. First, Lee

holds at most that Robbery II(a)’s representation element does not require specific

intent to frighten the victim. But the ACCA does not require specific intent:

“knowledge, or general intent, remains a sufficient mens rea to serve as the basis

for a crime of violence.” 

. Lee itself suggests that defendants

who intentionally communicate to their robbery victims that they are armed will

know that most victims will feel fear. 

(“[M]any or most

victims in such circumstances in fact will be afraid.”). Second, Lee holds that

Robbery II(a) does not necessarily require proof of intent to frighten, 

                                          10                                    17-35138
ACCA requires “outward expression or indication of an intention to inflict pain,

harm or punishment.” 

. A defendant’s intention to frighten

the victim and a defendant’s intention to communicate an intent to inflict pain,

harm and punishment if the victim resists are not necessarily two sides of the same

coin. See 

.

      Finally, Ankeny argues that we should apply the rule of lenity to construe

Robbery II in his favor. The rule applies only “where there is a grievous ambiguity

or uncertainty in the language or structure of the statute,” United States v.

Wanland, 

, 954 (9th Cir. 2016) (quoting United States v. Kahre, 

, 572 (9th Cir. 2013)), which we do not find here.

      We therefore AFFIRM.




                                          11                                    17-35138