                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                            No. 17-30096
                  Plaintiff-Appellee,
                                                        D.C. No.
                       v.                            2:16-cr-00325-
                                                         RSL-1
 ROBERT LAWRENCE VEDEROFF,
             Defendant-Appellant.                       OPINION



         Appeal from the United States District Court
           for the Western District of Washington
          Robert S. Lasnik, District Judge, Presiding

           Argued and Submitted November 6, 2018
                    Seattle, Washington

                      Filed February 1, 2019

Before: M. Margaret McKeown and Michelle T. Friedland,
Circuit Judges, and Fernando J. Gaitan, Jr., * District Judge

                     Opinion by Judge Gaitan




     *
       The Honorable Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
2                 UNITED STATES V. VEDEROFF

                          SUMMARY **


                          Criminal Law

    The panel vacated a sentence and remanded for
resentencing in a case in which the defendant pleaded guilty
to being a felon in possession of a firearm.

    The panel held that second-degree assault under Wash.
Rev. Code § 9A.36.021(1) is overbroad when compared to
the generic definition of aggravated assault because only the
former encompasses assault with intent to commit a felony.
Because Washington’s second-degree assault statute is
indivisible, the panel could not apply the modified
categorical approach, and therefore concluded that
Washington second-degree assault does not qualify as a
“crime of violence” under the enumerated clause of U.S.S.G.
§ 4B1.2.

    The panel held that second-degree murder under Wash.
Rev. Code § 9A.32.050 (2003) is overbroad when compared
to the generic definition of murder because only the former
covers felony murder. Because Washington’s second-
degree murder statute is indivisible, the panel could not
apply the modified categorical approach, and therefore
concluded that Washington second-degree murder is not a
“crime of violence” under the enumerated clause of § 4B1.2.

   The panel held that second-degree murder under
§ 9A.32.050 (2003) is overbroad as compared to a generic

    **
       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. VEDEROFF                    3

crime of violence because the former imposes liability for
negligent or even accidental felony murder. Because the
Washington statute is indivisible, the panel could not apply
the modified categorical approach, and therefore concluded
that Washington second-degree murder is not a “crime of
violence” under the force/elements clause of § 4B1.2(a)(2).

   The panel held that the district court’s sentencing errors
were not harmless.


                        COUNSEL

Alan Zarky (argued), Staff Attorney; Mohammad Ali
Hamoudi, Assistant Federal Public Defender; Office of the
Federal Public Defender, Seattle, Washington; for
Defendant-Appellant.

Helen J. Brunner (argued), Assistant United States Attorney;
Annette L. Hayes, United States Attorney; United States
Attorney’s Office, Seattle, Washington; for Plaintiff-
Appellee.


                         OPINION

GAITAN, District Judge:

    Robert Vederoff appeals the sentence imposed following
his guilty plea to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). He challenges the district
court’s findings that his prior convictions for second-degree
assault and second-degree murder under Washington law
qualify as “crimes of violence” under section 4B1.2(a) of the
United States Sentencing Guidelines (“U.S.S.G.”). For the
4                UNITED STATES V. VEDEROFF

following reasons, we vacate and remand for further
proceedings consistent with this Opinion.

                      I. BACKGROUND

     Vederoff was charged with and pled guilty to being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g). 1 As part of his written plea agreement, Vederoff
acknowledged receiving each of the felony convictions
listed in the indictment, including one conviction for second-
degree assault and one conviction for second-degree murder,
both under Washington law.

    Before sentencing, the United States Probation Office
issued a Presentence Report (“PSR”). The PSR set the base
offense level at 24, under U.S.S.G. § 2K2.1, concluding that
Vederoff’s prior convictions for second-degree assault and
second-degree murder qualified as “crimes of violence.”
After a three-level downward adjustment for acceptance of
responsibility, the PSR set Vederoff’s total offense level at
21. The PSR calculated Vederoff’s criminal history score as
13, and his criminal history category as VI. Accordingly,
Vederoff’s recommended Guidelines range was 77 to
96 months. The probation officer, however, recommended
a 60-month sentence, balancing mitigating and aggravating
factors in Vederoff’s history.

   Vederoff objected to either of these convictions counting
as “crimes of violence” under U.S.S.G. § 4B1.2(a). He
argued that, without the crimes of violence, the base offense

    1
       He was also charged with being a felon in possession of
ammunition, 18 U.S.C. § 922(g), but that charge was dropped pursuant
to the plea agreement.
                  UNITED STATES V. VEDEROFF                            5

level should be 14, and after adjustment for acceptance of
responsibility, the Guidelines range would be 27 to
33 months. 2 Vederoff requested a sentence of 27 months of
imprisonment, the lowest end of his proposed range. The
government agreed with the PSR’s crime of violence
findings and recommended a sentence of 72 months of
imprisonment, five months below the low end of the
Guidelines range if both convictions counted as crimes of
violence.

    On May 5, 2017, the district court sentenced Vederoff to
60 months in custody after concluding that both convictions
were crimes of violence. In explaining its decision, the
district court stated:

         So on the, you know, the [United States v.
         Johnson, 135 S. Ct. 2551 (2015),] issues —
         and we’re still in a state of flux on this — it
         drives me absolutely nuts as a trial judge to
         think that things like murder and assault with
         a deadly weapon could be conceived as not
         being crimes of violence, but these are highly
         technical rulings from courts that
         predominantly don’t have people who have
         ever been in a trial court, let alone been a
         trial-court lawyer or trial-court judge.

         But my analysis of this is that they are both
         countable crimes of violence, and it is an

    2
       This calculation was incorrect: a three-level adjustment for
acceptance of responsibility is only available for base offenses of 16 or
greater. With a base offense level of 14, Vederoff would be entitled to a
two-level adjustment. See U.S.S.G. § 3E1.1(a). The resulting Guideline
range would be 30 to 37 months.
6                 UNITED STATES V. VEDEROFF

        offense level 21, Criminal History Category
        VI, 77 to 96 range. If [defense counsel] is
        correct, it would be a level 14, Criminal
        History Category VI, with a 37 to 46 range.

        Either way, looking at the factors, I really
        believe the right sentence is a five-year prison
        term. So I’m going to impose a 60-month
        prison term. It’s either a departure downward
        from a range that’s too high or a departure
        upward from a range that’s too low. But the
        murder and the assault two are, in the Court’s
        opinion, countable under the analysis of
        being a divisible crime in the assault two, and
        that the ways to commit aiding and abetting
        felony murder have to comport with the
        national standard of doing something active
        to join in a felony that’s a serious felony, not
        some sort of hypothetical minor felony. It
        has to be during the commission of a
        dangerous felony or through conduct
        evincing reckless or depraved indifference to
        the serious dangers. But as I say, the range is
        not as important to me as what is the right
        sentence for this individual under these
        circumstances, and I think for the deterrent
        effect and the punishment effect, five years is
        correct for the prison term.[ 3]

Vederoff timely appealed his sentence.


    3
      The calculation of a 37 to 46 month range was incorrect. As noted,
the correct Guideline range if neither conviction counted as a crime of
violence was 30 to 37 months. See supra note 2.
               UNITED STATES V. VEDEROFF                   7

 II. JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo whether a predicate state conviction
constitutes a crime of violence under the Guidelines. United
States v. Robinson, 869 F.3d. 933, 936 (9th Cir. 2017). We
apply a harmless error analysis to Guideline calculations.
United States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th
Cir. 2011).

                    III. DISCUSSION

    Under U.S.S.G. § 2K2.1, Vederoff had a base offense
level of 24 if he had two or more felony convictions that
qualify as a “crime of violence.” U.S.S.G. § 2K2.1(a)(2). If
he had one, his base offense level would be 20, and if he had
none, his base offense level would be 14. U.S.S.G.
§ 2K2.1(a)(4), (6). “For the purposes of this guideline . . .
‘Crime of violence’ has the meaning given that term in
§ 4B1.2(a) and Application Note 1 of the Commentary to
§ 4B1.2.” U.S.S.G. § 2K2.1 cmt. n.1. At the time of
Vederoff’s offense and his sentencing, section 4B1.2(a), the
career offender guideline, defined “crime of violence” as:

       any offense under federal or state law,
       punishable by imprisonment for a term
       exceeding one year, that –

           (1) has as an element the use, attempted
           use, or threatened use of physical force
           against the person of another, or

           (2) is murder, voluntary manslaughter,
           kidnapping, aggravated assault, . . . .
8               UNITED STATES V. VEDEROFF

U.S.S.G. § 4B1.2(a). The first part of this definition is the
“force/elements clause,” and the second is the “enumerated
clause.” The commentary clarified that “crime[s] of
violence . . . include the offenses of aiding and abetting,
conspiring, and attempting to commit such offenses.”
U.S.S.G. § 4B1.2 cmt. n.1.

     To determine whether a prior state conviction qualifies
as a crime of violence, we apply the “categorical approach.”
Robinson, 869 F.3d at 936; see also Taylor v. United States,
495 U.S. 575, 600 (1990) (first articulating the approach in
the context of the Armed Career Criminal Act’s (“ACCA”)
“violent felony” provision). Under this approach, we define
the scope of the generic federal offense at issue, and then
compare its elements to the elements of the state criminal
statute. United States v. Arriaga-Pinon, 852 F.3d 1195,
1198–99 (9th Cir. 2017). If the state statute is identical to or
narrower than the generic federal offense, then the predicate
conviction is a crime of violence. Robinson, 869 F.3d at 936.
If the state statute is overbroad (i.e., criminalizes any
conduct not covered by the generic offense), we must
determine whether the statute is divisible (i.e., whether it has
alternative elements). Arriaga-Pinon, 852 F.3d at 1199. If
it is indivisible, the inquiry ends: the predicate conviction is
not a crime of violence. If the state statute is divisible, then
we apply the “modified categorical approach,” which
permits examination of the indictment, jury instructions,
and/or plea agreements to determine which of the alternative
elements were the basis of the conviction. Id. at 1199–1200.
The state conviction is a crime of violence if those elements
serving as the basis of the conviction are identical to or
narrower than the elements of the generic federal offense.
Throughout, “we must presume that the conviction rested
upon [nothing] more than the least of th[e] acts criminalized”
               UNITED STATES V. VEDEROFF                 9

by the state statute. Moncrieffe v. Holder, 569 U.S. 184,
191–92 (2013) (alterations in original) (citation omitted).

A. The Washington crime of second-degree assault does
   not qualify as a “crime of violence” under U.S.S.G.
   § 4B1.2.

   Under Washington law,

       [a] person is guilty of assault in the second
       degree if he or she, under circumstances not
       amounting to assault in the first degree:

           (a) Intentionally assaults another and
           thereby recklessly inflicts substantial
           bodily harm; or

           (b) Intentionally and unlawfully causes
           substantial bodily harm to an unborn
           quick child by intentionally and
           unlawfully inflicting any injury upon the
           mother of such child; or

           (c) Assaults another with a deadly
           weapon; or

           (d) With intent to inflict bodily harm,
           administers to or causes to be taken by
           another, poison or any other destructive
           or noxious substance; or

           (e) With intent to commit a felony,
           assaults another; or

           (f) Knowingly inflicts bodily harm which
           by design causes such pain or agony as to
10                UNITED STATES V. VEDEROFF

             be the equivalent of that produced by
             torture; or

             (g) Assaults another by strangulation or
             suffocation.

Wash. Rev. Code § 9A.36.021(1). In Robinson, we held that
second-degree assault in Washington is not a crime of
violence under the force/elements clause. 869 F.3d at 937–
41. However, Robinson did not decide whether it is a crime
of violence under the enumerated clause. 4 We must do so
here.

   For the purposes of defining federal assault, the
government urges us to adopt the following definition of
“aggravated assault” found in an unrelated section of the
Guidelines:

         a felonious assault that involved (A) a
         dangerous weapon with intent to cause bodily
         injury (i.e., not merely to frighten) with that
         weapon; (B) serious bodily injury;
         (C) strangling, suffocating, or attempting to
         strangle or suffocate; or (D) an intent to
         commit another felony.

U.S.S.G. § 2A2.2, cmt. n.1 (emphasis added). We decline to
do so. The introductory provisions of the Guidelines warn
that, while definitions “also may appear in other sections,”
those definitions “are not designed for general applicability.”
U.S.S.G. § 1B1.1, cmt. n.2. Instead, “their applicability to
     4
      While Robinson addressed an earlier version of the Guidelines, the
force/elements clause at issue there was same. 869 F.3d at 937–41.
“Aggravated assault” was not listed in the enumerated clause in the
earlier version of the Guidelines.
                 UNITED STATES V. VEDEROFF                       11

sections other than those expressly referenced must be
determined on a case by case basis.” Id. In other cases,
when a section of the Sentencing Guidelines did not plainly
identify the elements of a federal offense, we looked to the
generic definition of that offense, rather than importing a
specific definition located in an unrelated section of the
Guidelines. See United States v. Gonzalez-Perez, 472 F.3d
1158, 1161 (9th Cir. 2007); see also United States v.
Esparza-Herrera, 557 F.3d 1019, 1022–25 (9th Cir. 2009)
(defining the generic offense of “aggravated assault” for the
purposes of U.S.S.G. § 2L1.2 by reference to the Model
Penal Code, treatises, and various state laws, rather than
using U.S.S.G. § 2A2.2); United States v. Garcia-Jimenez,
807 F.3d 1079, 1085–87 (9th Cir. 2015) (clarifying the
generic offense of “aggravated assault” for the purposes of
U.S.S.G. § 2L1.2 by reference to the criminal statutes of a
substantial majority of U.S. jurisdictions).

    Accordingly, in this case we compare the definition of
“aggravated assault” under Washington law to the generic
definition of aggravated assault. The least culpable means
within the Washington statute is assault with intent to
commit a felony, Wash. Rev. Code § 9A.36.021(1)(e), so we
must determine whether the generic definition of aggravated
assault covers such conduct. Our review of the common
law, 5 the Model Penal Code, treatises, and the laws of the
other states, see Esparza-Herrera, 557 F.3d at 1022–25,
compels the conclusion that generic aggravated assault does
not include assault with intent to commit a felony. The
Model Penal Code defines aggravated assault as assault
causing or attempting to cause bodily injury “under

    5
      Common law does not aid our interpretation here because
“aggravated assault” is a statutory creation. See 2 Wayne R. LaFave,
Substantive Criminal Law § 16.1(b) (3d ed. 2018).
12                UNITED STATES V. VEDEROFF

circumstances manifesting extreme indifference to the value
of human life” or with a deadly weapon. Model Penal Code
§ 211.1(2). It does not include assault with intent to commit
another felony.

    With respect to the laws of the states, only six states
(including Washington) and the District of Columbia include
assault with intent to commit any felony within their assault
statutes (whether titled “aggravated” assault or not). 6 In
11 states, aggravated assault includes assault with the intent
to commit a narrower set of specific felonies 7 or assault
committed during the commission of a felony. 8 In 33 states,
aggravated assault never includes assault with the intent to
commit a felony. 9 Second-degree assault under Washington

     6
      Fla. Stat. § 784.021; Kan. Stat. Ann. § 21-5412; Mass. Gen. Laws
ch. 265, § 29; Mich. Comp. Laws § 750.87; N.M. Stat. Ann. § 30-3-2;
Wash. Rev. Code § 9A.36.021; D.C. Code §§ 22-403, 22-404.01.

     7
      Cal. Penal Code §§ 220, 245; Ga. Code Ann. § 16-5-21; N.C. Gen.
Stat. § 14-32; 11 R.I. Gen. Laws §§ 11-5-1, 11-5-2; Va. Code Ann.
§ 18.2–51.2.
    8
      Ala. Code § 13A-6-20; Del. Code Ann. tit. 11, § 613; Iowa Code
§ 708.3; N.Y. Penal Law § 120.10; S.C. Code Ann. § 16-3-600; W. Va.
Code § 61-2-10.

     9
      Alaska Stat. § 11.41.200; Ariz. Rev. Stat. Ann. § 13-1204; Ark.
Code Ann. § 5-13-204; Colo. Rev. Stat. § 18-3-202; Conn. Gen. Stat.
§ 53A-59; Haw. Rev. Stat. § 707-711; Idaho Code § 18-905; 720 Ill.
Comp. Stat. 5/12-2; Ind. Code § 35-42-2-1.5; Ky. Rev. Stat. Ann.
§ 508.010; La. Stat. Ann. §§ 14:34, 14:34.7; Me. Rev. Stat. Ann. tit. 17-
A, § 208; Md. Code Ann., Crim. Law § 3-202; Minn. Stat. §§ 609.02,
609.221, 609.222, 609.223, 609.2233; Miss. Code Ann. § 97-3-7; Mo.
Rev. Stat. § 565.050; Mont. Code Ann. § 45-5-202; Neb. Rev. Stat.
§§ 28-308, 28-309; Nev. Rev. Stat. § 200.471; N.H. Rev. Stat. Ann.
§ 631:1, 631:2; N.J. Stat. Ann. § 2C:12-1; N.D. Cent. Code § 12.1-17-
02; Ohio Rev. Code Ann. § 2903.12; Okla. Stat. tit. 21, § 646; Or. Rev.
                  UNITED STATES V. VEDEROFF                         13

law clearly covers a broader range of conduct than generic
aggravated assault. We have previously concluded that
Washington’s second-degree assault statute is indivisible,
Robinson, 869 F.3d at 941, so we cannot apply the modified
categorical approach here. Contrary to the conclusion
reached by the district court, second-degree assault under
Washington law is not a “crime of violence” under U.S.S.G.
§ 4B1.2.

B. The Washington crime of second-degree murder does
   not qualify as a “crime of violence” under U.S.S.G.
   § 4B1.2.

    At the time of Vederoff’s offense, Washington law
defined second-degree murder as when:

         (a) With intent to cause the death of another
         person but without premeditation, he or she
         causes the death of such person or of a third
         person; or

         (b) He or she commits or attempts to commit
         any felony, including assault, other than
         those enumerated in RCW 9A.32.030(1)(c)
         [Washington’s first-degree murder statute],
         and, in the course of and in furtherance of
         such crime or in immediate flight therefrom,
         he or she, or another participant, causes the
         death of a person other than one of the
         participants; except that in any prosecution


Stat. §§ 163.175, 163.185; 18 Pa. Cons. Stat. § 2702; S.D. Codified Laws
§ 22-18-1.1; Tenn. Code Ann. § 39-13-102; Tex. Penal Code Ann.
§ 22.02; Utah Code Ann. § 76-5-103; Vt. Stat. Ann. tit. 13, § 1024; Wis.
Stat. § 940.19; Wyo. Stat. Ann. § 6-2-502.
14             UNITED STATES V. VEDEROFF

       under this subdivision (1)(b) in which the
       defendant was not the only participant in the
       underlying crime, if established by the
       defendant by a preponderance of the
       evidence, it is a defense that the defendant:

           (i) Did not commit the homicidal act or in
           any way solicit, request, command,
           importune, cause, or aid the commission
           thereof; and

           (ii) Was not armed with a deadly weapon,
           or any instrument, article, or substance
           readily capable of causing death or
           serious physical injury; and

           (iii) Had no reasonable grounds to believe
           that any other participant was armed with
           such a weapon, instrument, article, or
           substance; and

           (iv) Had no reasonable grounds to believe
           that any other participant intended to
           engage in conduct likely to result in death
           or serious physical injury.

Wash. Rev. Code § 9A.32.050 (2003). We must now
determine whether a conviction under this statute is a crime
of violence under either the enumerated clause or
force/elements clause of U.S.S.G. § 4B1.2.

       1. Enumerated clause

    We have not adopted a definition for generic murder.
After surveying the Model Penal Code, dictionary
definitions, and state laws, the Third Circuit defined generic
               UNITED STATES V. VEDEROFF                  15

murder as “causing the death of another person either
intentionally, during the commission of a dangerous felony,
or through conduct evincing reckless and depraved
indifference to serious dangers posed to human life.” United
States v. Marrero, 743 F.3d 389, 401 (3d Cir. 2014),
abrogated on other grounds by Johnson v. United States,
135 S. Ct. 2551 (2015); see also United States v. Castro-
Gomez, 792 F.3d 1216, 1217 (10th Cir. 2015) (citing
approvingly to Marrero). We adopt that definition here.

     The least culpable means of committing second-degree
murder in Washington is under the felony murder provision,
so we must determine whether generic murder also covers
such conduct. Under Washington law, the underlying felony
can be any felony—unlike felony murder in the Third
Circuit’s definition of generic murder, it is not limited to
dangerous felonies. Washington’s felony murder provision
is an outlier among the states: seven do not impose felony
murder liability at all. Guyora Binder, Making the Best of
Felony Murder, 91 B.U. L. Rev. 403, 440 (2011) (citing to
Arkansas, Hawaii, Kentucky, Michigan, New Hampshire,
New Mexico, and Vermont). In the jurisdictions that do
impose felony murder liability, unlike Washington, a
majority enumerate the predicate felonies in their statute.
See id. at 450 n.262 (citing to 18 U.S.C. § 1111 and Alaska,
Arizona, Colorado, Connecticut, District of Columbia,
Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Nebraska,
New Jersey, New York, North Dakota, Ohio, Oregon,
Pennsylvania, South Dakota, Tennessee, Utah, West
Virginia, Wisconsin, and Wyoming). In the jurisdictions
without exhaustively enumerated predicate felonies, almost
all require that the predicate offense be a dangerous felony.
See id. at 466–82 (discussing Alabama, California,
Delaware, Georgia, Illinois, Maryland, Massachusetts,
Minnesota, Missouri, Montana, Nevada, North Carolina,
16              UNITED STATES V. VEDEROFF

Oklahoma, Rhode Island, South Carolina, Texas, and
Virginia). Only three states (including Washington) allow
felony murder to be predicated on non-enumerated offenses
lacking a dangerousness requirement. See id. at 478
(explaining that Florida and Mississippi are the two other
jurisdictions). Furthermore, the Model Penal Code limits
felony murder to deaths resulting from conduct involving
certain specified dangerous offenses. Model Penal Code
§ 210.2(1)(b).

     The government insists that any concerns regarding the
breadth of the statute are hypothetical. See Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007) (requiring “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”). Facial overbreadth like that
here, however, is a basis for finding a statute overbroad. See
United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007)
(en banc) (holding that where “a state statute explicitly
defines a crime more broadly than the generic definition, no
‘legal imagination,’ is required to hold that a realistic
probability exists that the state will apply its statute to
conduct that falls outside the generic definition of the crime”
(citing Duenas-Alvarez, 549 U.S. at 193)).

    Washington’s second-degree murder statute is therefore
overbroad when compared with the definition of generic
murder, as well as the Model Penal Code and the laws of
other jurisdictions. We next turn to whether this statute is
divisible. Because the plain language of the statute does not
resolve this question, we look to state decisional law.
Robinson, 869 F.3d at 938. Washington courts have
concluded that the statute is indivisible, and we adopt their
interpretation here. See, e.g., State v. Berlin, 947 P.2d 700,
705–06 (Wash. 1997) (holding that this statute defines a
               UNITED STATES V. VEDEROFF                   17

“single crime, which can be committed by alternative
means” and therefore, “the State is not required to elect
between the alternative means of committing second degree
murder”); see also State v. Lizarraga, 364 P.3d 810, 828
(Wash. Ct. App. 2015) (concluding that this statute contains
alternative means, not alternative elements). As above, we
cannot apply the modified categorical approach. Contrary to
the conclusion reached by the district court, second-degree
murder under Washington law is not a crime of violence
under the enumerated clause of U.S.S.G. § 4B1.2(a)(2).

       2. Force/elements clause

    The government argues for the first time on appeal that
second-degree murder qualifies as a crime of violence under
the force/elements clause. We need not determine whether
it has waived or forfeited this claim, because it is apparent
that the argument fails on the merits. The generic “crime of
violence” includes the following elements: (i) the crime has
“as an element the use, attempted use, or threatened use of
physical force against [a] person,” (ii) the “physical force”
must be “violent” or otherwise “capable of causing physical
pain or injury to another person,” and (iii) the “use of force
must be intentional, not just reckless or negligent.” U.S.S.G.
§ 4B1.2(a)(1); United States v. Dixon, 805 F.3d 1193, 1197
(9th Cir. 2015) (defining “violent felony” under ACCA’s
force/elements clause); United States v. Ladwig, 432 F.3d
1001, 1005 n.9 (9th Cir. 2005) (noting that requirements for
the ACCA’s “violent felony” and the Guidelines’ “crime of
violence” are “identical”). On the other hand, Washington
law imposes liability for negligent or even accidental felony
murder. See, e.g., State v. Leech, 790 P.2d 160, 164 (Wash.
1990) (“The purpose of the felony murder rule is to deter
felons from killing negligently or accidentally by holding
them strictly responsible for killings they commit.”). The
18                UNITED STATES V. VEDEROFF

statute is therefore overbroad as compared to a generic crime
of violence. As noted above, we cannot apply the modified
categorical approach because this statute is indivisible.
Second-degree murder under Washington law is not a crime
of violence under the force/elements clause of U.S.S.G.
§ 4B1.2(a)(2). 10

C. The sentencing errors were not harmless.

    Even when the district court indicates it would impose
the same sentence regardless of the proper Guidelines range,
we have held that “[a] mistake in calculating the
recommended Guidelines sentencing range is a significant
procedural error that requires us to remand for
resentencing.” Munoz-Camarena, 631 F.3d at 1030. “[T]he
district court must correctly calculate the recommended
Guidelines sentence and use that recommendation as the
‘starting point and the initial benchmark.’ . . . [T]he
recommended Guidelines range must ‘be kept in mind
throughout the process.’” Id. (citations omitted). We
require that the “district court [ ] start with the recommended
Guidelines sentence, adjust upward or downward from that
point, and justify the extent of the departure from the
Guidelines sentence.” Id. (citation omitted). “A district
court’s mere statement that it would impose the same above-
Guidelines sentence no matter what the correct calculation
cannot, without more, insulate the sentence from remand,


     10
         Because we conclude that Vederoff’s convictions for second-
degree murder and second-degree assault do not constitute crimes of
violence, we need not determine whether accomplice liability under
Washington law is categorically broader than federal aiding and abetting
liability, under the reasoning in United States v. Valdivia-Flores,
876 F.3d 1201, 1207-09 (9th Cir. 2017), such that no Washington
conviction qualifies as a crime of violence.
                UNITED STATES V. VEDEROFF                     19

because the court’s analysis did not flow from an initial
determination of the correct Guidelines range.” Id. at 1031.

    Here, it appears that the district court started with the
presumption that a 60-month sentence was the correct one,
and it attempted to justify it as either a downward departure
from the Guidelines calculation he accepted at sentencing or
an upward departure from the Guidelines calculation
advocated by defense counsel. Having now determined that
the proper Guideline range would be 30 to 37 months, we
cannot say that the district court’s incorrect calculation of the
proper Guideline range was harmless. The explanation
given by the district court does not explain why the court
imposed a sentence nearly double the Guideline range. Nor
does it demonstrate that the district court would impose the
same sentence if the correct Guidelines range were “kept in
mind throughout the process.” Id. at 1030 (citation omitted).
Moreover, the explanation provided by the district court
does not account for the amount or direction of the departure;
the mitigating factors discussed by the district court could
also have warranted a downward variance from the proper
Guideline range. This case must therefore be remanded for
resentencing with the correct Guidelines range in mind.
United States v. Brown, 879 F.3d 1043, 1051 (9th Cir. 2018)
(“The use of an incorrect starting point and the failure to
keep the proper Sentencing Guidelines range in mind as the
sentencing decision was made constituted ‘a significant
procedural error,’ and the case must be remanded for
resentencing.” (quoting Munoz-Camarena, 631 F.3d at
1030)).

  SENTENCE VACATED,                    REMANDED            FOR
RESENTENCING.
