                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              No. 16-30150
          Plaintiff-Appellee,
                                         D.C. No.
             v.                    2:15-cr-00353-MJP-1

RAQWON SLADE,
      Defendant-Appellant.                 OPINION



     Appeal from the United States District Court
       for the Western District of Washington
     Marsha J. Pechman, District Judge, Presiding

         Argued and Submitted May 11, 2017
                Seattle, Washington

                  Filed October 10, 2017

    Before: M. Margaret McKeown, Carlos T. Bea,
         and N. Randy Smith, Circuit Judges.

                  Opinion by Judge Bea
2                   UNITED STATES V. SLADE

                          SUMMARY *


                          Criminal Law

    The panel vacated a sentence for being a felon in
possession of a firearm, and remanded for resentencing, in a
case in which the district court treated the defendant’s prior
conviction under Washington’s second-degree assault
statute, Revised Code of Washington section 9A.36.021, as
a “crime of violence” under the United States Sentencing
Guidelines.

    The panel held that United States v. Jennen, 596 F.3d
594 (9th Cir. 2010), in which this court affirmed a sentence
when the district court had treated a prior conviction under
section 9A.36.021(1)(c) as a crime of violence, has been
effectively overruled by the Supreme Court’s decisions in
Descamps v. United States, 133 S. Ct. 2276 (2013), and
Mathis v. United States, 136 S. Ct. 2243 (2016). Applying
United States v. Robinson, 869 F.3d 933 (9th Cir. 2017), the
panel wrote that section 9A.36.021 criminalizes conduct that
does not meet the generic federal definition of crime of
violence and is not divisible. The panel concluded that the
district court therefore erred in applying the modified
categorical approach and in determining that the defendant’s
prior conviction constituted a crime of violence, which
caused the district court to miscalculate the defendant’s base
offense level and Guidelines range.




    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. SLADE                   3

                       COUNSEL

Vanessa Pai-Thompson (argued), Assistant Federal Public
Defender, Federal Public Defender’s Office, Seattle,
Washington, for Defendant-Appellant.

Michael Symington Morgan (argued), Assistant United
States Attorney; Annette L. Hayes, United States Attorney;
United States Attorney; United States Attorney’s Office,
Seattle, Washington; for Plaintiff-Appellee.


                        OPINION

BEA, Circuit Judge:

    Raqwon Slade (“Slade”) appeals his sentence for being
a felon in possession of a firearm. Slade’s sentence was
enhanced because the district court treated his prior
conviction under Washington’s second-degree assault
statute, Revised Code of Washington section 9A.36.021
(“section 9A.36.021”), as a “crime of violence” under the
United States Sentencing Guidelines (“Guidelines”). State
court documents from the prior conviction demonstrated that
Slade had pleaded guilty to violating section
9A.36.021(1)(c), assault with a deadly weapon. We reverse.

    This case is controlled by our recent decision in United
States v. Robinson, 869 F.3d 933 (9th Cir. 2017), in which
we held that section 9A.36.021 is not a crime of violence
under the Guidelines. 869 F.3d at 941. However, before we
can apply Robinson, we must first conclude that United
States v. Jennen, 596 F.3d 594 (9th Cir. 2010), in which we
affirmed a sentence when the district court had treated the
defendant’s prior conviction under section 9A.36.021(1)(c)
4                   UNITED STATES V. SLADE

as a crime of violence, id. at 601–02, has been effectively
overruled by the Supreme Court’s subsequent decisions in
Descamps v. United States, 133 S. Ct. 2276 (2013), and
Mathis v. United States, 136 S. Ct. 2243 (2016).

    I. Factual and Procedural Background

    Slade had a seizure and was treated by firefighters. King
County Sheriff’s deputies that were dispatched to assist the
firefighters found a loaded pistol in Slade’s pocket. Slade, a
convicted felon, was subsequently charged with being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). Slade pleaded guilty.

      As noted above, Slade had previously been convicted
under section 9A.36.021.            Before sentencing, the
Presentence Report (“PSR”) recommended that the prior
conviction be treated as a crime of violence and that Slade
be assigned a base offense level of 20 pursuant to section
2K2.1(a)(4)(A) of the Guidelines. 1 Section 2K2.1 defines a
“crime of violence,” in relevant part, as “any offense . . . that
. . . has as an element the use, attempted use, or threatened
use of physical force against the person of another.” See
Robinson, 869 F.3d at 937 (citing Application Note 1 to
U.S.S.G. § 2K2.1). In this context, physical force means
violent force, i.e., force that can cause physical pain or
injury. Id.

    Washington’s second-degree assault statute lists
different methods of committing second-degree assault in

    1
       Guidelines section 2K2.1(a)(4)(A) provides for a base offense
level of 20 if the defendant unlawfully possessed a firearm subsequent
to sustaining a felony conviction for a crime of violence.
                    UNITED STATES V. SLADE                            5

the seven subsections of section 9A.36.021(1). The PSR
noted that, during Slade’s prior conviction, he pleaded guilty
to violating section 9A.36.021(1)(c), assault with a deadly
weapon. 2 The PSR concluded this prior conviction was for
a crime of violence.

    Additionally, the PSR recommended a three-level
downward adjustment for acceptance of responsibility. The
PSR assigned three criminal history points for Slade’s prior
conviction, which established a criminal history category of
II. Based on a total offense level of 17 and a criminal history
category of II, the PSR concluded that Slade’s Guidelines
sentencing range was twenty-seven to thirty-three months’
imprisonment.

    At sentencing, the district court applied the modified
categorical approach 3 and concluded that Slade’s prior
conviction constituted a crime of violence. The court then
sentenced Slade to twenty-four months’ imprisonment,
followed by three years of supervised release.

    Slade appeals his sentence. He contends that the district
court erred by using the modified categorical approach and
that his previous conviction does not constitute a crime of
violence under the Guidelines.

    2
      According to the judgment and the information in this case, during
an argument that led to a physical fight, Slade produced a gun and shot
a man.

    3
       Under the modified categorical approach, a sentencing court
examines “a limited class of documents” from a defendant’s prior
conviction to determine whether the defendant’s prior crime qualifies as
a crime of violence under the Guidelines. Robinson, 869 F.3d at 936
(quoting United States v. Arriaga-Pinon, 852 F.3d 1195, 1199 (9th Cir.
2017)).
6                  UNITED STATES V. SLADE

    II. Jurisdiction and Standard of Review

    We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo whether a state crime qualifies as a crime of
violence under the Guidelines. United States v. Crews,
621 F.3d 849, 851 (9th Cir. 2010).

    III.     Discussion

    We apply the categorical approach described in the
Supreme Court’s decisions in Taylor v. United States,
495 U.S. 575 (1990), Descamps, and Mathis to decide
whether a defendant’s prior conviction qualifies as a crime
of violence under the Guidelines. See Robinson, 869 F.3d at
936. First, we decide whether the elements of the prior crime
match the elements of the generic federal definition of a
crime of violence. Id. If the statute of conviction is
overbroad and not a categorical match, we then ask whether
the statute is divisible into separate crimes with unique
elements. Id. If the statute is divisible, only then may a court
use the modified categorical approach. Id.

    On appeal, Slade contends that his prior conviction for
second-degree assault does not constitute a crime of violence
because section 9A.36.021 is categorically overbroad and
not divisible. In response, the government contends that this
case is controlled by Jennen.

           A. United States v. Jennen has been effectively
              overruled.

    Slade contends that Jennen is no longer good law in light
of the Supreme Court’s subsequent decisions in Descamps
and Mathis. We agree. “[W]here the reasoning or theory of
our prior circuit authority is clearly irreconcilable with the
reasoning or theory of intervening higher authority, a three-
                 UNITED STATES V. SLADE                    7

judge panel should consider itself bound by the latter and
controlling authority, and should reject the prior circuit
opinion as having been effectively overruled.” Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

    In Jennen, the defendant was convicted of being a felon
in possession of a firearm and ammunition. 596 F.3d at 596.
Previously, the defendant had been convicted of section
9A.36.021, in particular, section 9A.36.021(1)(c), assault
with a deadly weapon. See id. at 600. At sentencing, the
district court held that this prior conviction constituted a
crime of violence under the Guidelines. Id. We affirmed the
sentence imposed by the district court, and concluded that
the defendant’s prior conviction for second-degree assault
with a deadly weapon constituted a crime of violence. Id. at
600–02.

    In so doing, the Jennen court failed to consider whether
section 9A.36.021 itself was divisible, no doubt because
Descamps and Mathis had not yet clarified that particular
analytical step. See Jennen, 596 F.3d at 600–02. As a result,
the Jennen court implicitly assumed that section 9A.36.021
was divisible into separate crimes based on the listed
subsections in 9A.36.021(1). See id. at 601. The court then
proceeded to apply the categorical overbreadth analysis to
only a particular subsection of section 9A.36.021(1), section
9A.36.021(1)(c). Id. at 601–02. If section 9A.36.021 were
divisible (as defined in Descamps and Mathis), such an
approach would be a proper application of the modified
categorical approach. See Mathis, 136 S. Ct. at 2249.
However, if the statute is not divisible, then it would be
improper to apply the modified categorical approach to
determine whether only one part of Washington’s second-
degree assault statute constitutes a crime of violence under
the Guidelines. See id. at 2253–54.
8                    UNITED STATES V. SLADE

   Since Jennen failed to consider whether section
9A.36.021 is divisible—and it is not, per Robinson—the
decision’s reasoning is “clearly irreconcilable” with the
analytical process prescribed by Descamps and Mathis.
Gammie, 335 F.3d at 893. Therefore, we are bound by
Descamps and Mathis rather than Jennen. 4 See id.

         B. As we held in Robinson, section 9A.36.021
            does not constitute a crime of violence under
            the Guidelines.

    In Robinson, at sentencing, the district court treated the
defendant’s prior conviction under section 9A.36.021 as a
crime of violence when the court applied Guidelines section
2K2.1. 869 F.3d at 935–36. We reversed the sentence,
holding that section 9A.36.021 is not a crime of violence
under the Guidelines. Id. at 941. As Slade’s prior section
9A.36.021 conviction was also considered a crime of
violence at sentencing, we follow Robinson.

    Following Mathis, we first must determine if some of the
conduct criminalized by section 9A.36.021 does not
constitute a crime of violence. Robinson, 869 F.3d at 936.
As in Robinson, the government does not dispute that section
9A.36.021 is categorically overbroad. We agreed and held

     4
       We reached an analogous conclusion in Robinson. In United States
v. Lawrence, 627 F.3d 1281 (9th Cir. 2010), we held that section
9A.36.021(1)(a), intentional assault in which the defendant recklessly
inflicts substantial bodily harm, is categorically a “violent felony” under
the Armed Career Criminal Act. Id. at 1288. We held in Robinson that
Lawrence is no longer good law because Lawrence is “clearly
irreconcilable” with the Supreme Court’s decisions in Descamps and
Mathis since the Lawrence court failed to consider whether section
9A.36.021 is divisible. See Robinson, 869 F.3d at 936–37 (citation
omitted).
                    UNITED STATES V. SLADE                             9

that “subsection (1)(e) criminalizes conduct that is not
covered by section 2K2.1’s definition of ‘crime of
violence.’” Id. at 938.

    Next, we must determine whether section 9A.36.021 is
divisible into separate crimes. See id. at 938–39. We held
in Robinson that section 9A.36.021 is not divisible because,
after reviewing decisions of the Washington Supreme Court
and Washington pattern jury instructions, we concluded that
“section 9A.36.021 defines a single crime—second-degree
assault—and provides seven different ‘means’ by which a
person can commit that crime.” Id. at 941.

    Since section 9A.36.021 criminalizes conduct that does
not meet the generic federal definition of a crime of violence
and is not divisible, section 9A.36.021 is not a crime of
violence for purposes of applying Guidelines section 2K2.1.
Id. Therefore, the district court erred in sentencing Slade.
This error caused the district court to miscalculate Slade’s
base offense level and Guidelines range. 5 “A mistake in
calculating the recommended Guidelines range is a
significant procedural error that requires us to remand for
resentencing.” United States v. Lee, 821 F.3d 1124, 1226




     5
       As noted above, the district court calculated Slade’s base offense
level as 20 because it applied Guidelines section 2K2.1(a)(4), subtracted
three levels for acceptance of responsibility, which, combined with
Slade’s criminal history category II, yielded a sentencing range of
twenty-seven to thirty-three months. Since Slade’s prior conviction
cannot be treated as a conviction for a crime of violence, Slade’s base
offense level should have been fourteen. U.S.S.G. § 2K2.1(a)(6)(A).
With a two-level reduction for acceptance of responsibility, U.S.S.G.
§ 3E1.1, his Guidelines range would have been twelve-to-eighteen
months’ imprisonment. U.S.S.G. ch. 5, pt. A.
10              UNITED STATES V. SLADE

(9th Cir. 2016) (quoting United States v. Munoz-Camarena,
631 F.3d 1028, 1030 (9th Cir. 2011)).

     IV.   Conclusion

    We VACATE Slade’s sentence and REMAND for
resentencing.
