                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                           No. 14-30189
                 Plaintiff-Appellee,
                                                       D.C. No.
                       v.                           2:14-CR-0041-
                                                         JLQ
 JUSTIN CURTIS WERLE,
               Defendant-Appellant.                    OPINION


        Appeal from the United States District Court
           for the Eastern District of Washington
  Justin L. Quackenbush, Senior District Judge, Presiding

                    Argued and Submitted
            October 13, 2015—Seattle, Washington

                        Filed March 3, 2016

   Before: William A. Fletcher and Raymond C. Fisher,
Circuit Judges, and Claudia Wilken, Senior District Judge.*

                    Opinion by Judge Wilken




  *
    The Honorable Claudia Wilken, United States Senior District Judge for
the Northern District of California, sitting by designation.
2                   UNITED STATES V. WERLE

                           SUMMARY**


                           Criminal Law

    The panel vacated a sentence and remanded for
resentencing in a case in which the district court concluded
that the defendant was subject to a 15-year mandatory
minimum sentence under the Armed Career Criminal Act.

    The panel held that a conviction for felony riot under
Wash. Rev. Code § 9A.84.010 is not a “violent felony” for
purposes of the Armed Career Criminal Act because
§ 9A.84.010 is overinclusive and indivisible with respect to
the term “force.”


                             COUNSEL

Matthew Campbell (argued), Federal Defenders of Eastern
Washington & Idaho, Spokane, Washington, for Defendant-
Appellant.

Michael C. Ormsby, United States Attorney, Timothy J.
Ohms (argued), Assistant United States Attorney, United
States Attorneys’ Office, Spokane, Washington, for Plaintiff-
Appellee.




  **
     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. WERLE                               3

                               OPINION

WILKEN, Senior District Judge:

     Under the Armed Career Criminal Act (ACCA), a
defendant with three prior “violent felony” convictions faces
a fifteen-year mandatory-minimum sentence if convicted of
violating 18 U.S.C. § 922(g). 18 U.S.C. § 924(e). In this
case, we consider whether a conviction for felony riot under
a Washington state statute is a violent felony for purposes of
the ACCA sentencing enhancement. We hold that it is not,
because it is overinclusive and indivisible with respect to the
term “force.” Accordingly, we reverse and remand for
resentencing.1

I. Background

    On March 4, 2014, a federal grand jury returned                     an
indictment against Appellant, charging one count                        of
possession of a firearm and ammunition, in violation of                 18
U.S.C. § 922(g)(1), and one count of possession of                      an

  1
     Appellant also appeals his conviction, arguing that the district court
erred when it denied his motion to suppress. However, “[a]n officer may
stop and question an individual suspected of wrongdoing if the officer can
point to ‘specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.’” United
States v. Rowland, 464 F.3d 899, 907 (9th Cir. 2006) (quoting Terry v.
Ohio, 392 U.S. 1, 21 (1968)). Here, the officers had reasonable suspicion
based on information provided by Appellant’s brother and mother as well
as information obtained from government records and their own
observations of Appellant. To the extent there was a frisk, it was justified
by a reasonable suspicion that Appellant was armed and that the officers
and the people on the scene were in danger. United States v. Hartz, 458
F.3d 1011, 1018 (9th Cir. 2006) (citing Terry, 392 U.S. at 24).
Accordingly, we affirm Appellant’s conviction.
4                UNITED STATES V. WERLE

unregistered firearm, in violation of 26 U.S.C. § 5861(d).
After the district court denied his motion to suppress evidence
discovered at the time of his arrest, Appellant entered a
conditional guilty plea to both counts of the indictment,
pursuant to a plea agreement. The plea agreement provided
that the United States would argue that Appellant had
multiple violent felony convictions for purposes of the ACCA
sentence enhancement. The Presentence Report (PSR)
concluded that Appellant was subject to a fifteen-year
mandatory-minimum sentence under the ACCA based on a
2008 conviction for harassment, a 2012 conviction for four
counts of felony riot, a 2012 conviction for harassment, and
a 2013 conviction for felony riot. Without any of the riot
convictions, Appellant would not have had three predicate
convictions for purposes of the ACCA sentencing
enhancement.

    Appellant filed objections to the PSR’s conclusion that he
had three or more qualifying convictions pursuant to the
ACCA, arguing that the riot statute is overinclusive for
multiple reasons and indivisible. Applying the categorical
approach, the district court agreed that the riot statute is
overinclusive because it criminalizes certain acts either
against a person or merely against property. Relying on
previous unpublished opinions of this court that held that the
statute is overinclusive in that way, but is divisible, the
district court likewise found the statute divisible.
Accordingly, the district court applied the modified
categorical approach. The district court looked to the
charging documents, the plea agreements and the police
reports incorporated by the plea agreements for each of
Appellant’s five riot convictions and found that the riot
convictions were predicate offenses for purposes of the
ACCA sentencing enhancement based on the specific facts of
                     UNITED STATES V. WERLE                               5

those offenses. The district court did not address Appellant’s
arguments with respect to the other bases of
overinclusiveness.

    Appellant timely filed his notice of appeal. We have
jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and
we review de novo a district court’s finding that a prior
conviction is a predicate offense under the ACCA. United
States v. Snyder, 643 F.3d 694, 696 (9th Cir. 2011).

II. Discussion

     A. The ACCA and the Categorical Approach

    Under the ACCA, “violent felony” is defined, in relevant
part, as “any crime punishable by imprisonment for a term
exceeding one year . . . that has as an element the use,
attempted use, or threatened use of physical force against the
person of another.”2 18 U.S.C. § 924(e)(2)(B). To determine
whether a prior conviction qualifies as a “violent felony” for
purposes of the ACCA, the sentencing court and this court
“apply the three-step process set forth in Descamps v. United


 2
    “Violent felony” is also defined as an offense that is “burglary, arson,
or extortion, [or] involves use of explosives.” 18 U.S.C. § (e)(2)(B)(ii).
The felony riot convictions at issue in this case are not any of these
enumerated offenses. Further, the residual clause of the ACCA, which
includes in the definition of “violent felony” an offense that “otherwise
involves conduct that presents a serious potential risk of physical injury
to another” was recently struck down by the Supreme Court in Johnson v.
United States, 135 S. Ct. 2551, 2563 (2015) (“We hold that imposing an
increased sentence under the residual clause of the Armed Career Criminal
Act violates the Constitution’s guarantee of due process.”). Accordingly,
the felony riot convictions in this case cannot qualify as violent felonies
under the residual clause.
6                   UNITED STATES V. WERLE

States, 133 S. Ct. 2276 (2013).”3 Almanza-Arenas v. Lynch,
809 F.3d 515, 521 (9th Cir. 2015) (en banc).

    The sentencing court must first apply the “categorical
approach” set out in Taylor v. United States, looking “only to
the fact of conviction” and “the statutory definitions of the
prior offense, and not to the particular facts underlying those
convictions.” 495 U.S. 575, 600–02 (1990); see United
States v. Ladwig, 432 F.3d 1001, 1004–05 (9th Cir. 2005)
(applying the categorical approach to determine whether an
offense is a “violent felony” under 18 U.S.C.
§ 924(e)(2)(B)(i)). Here, courts “compare the elements of the
statute forming the basis of the defendant’s conviction with
the elements of the ‘generic’ crime–i.e., the offense as
commonly understood. The prior conviction qualifies as an
ACCA predicate only if the statute’s elements are the same
as, or narrower than, those of the generic offense.”
Descamps, 133 S. Ct. at 2281.

   A statute that criminalizes both conduct that does and
conduct that does not qualify as a violent felony is an
overinclusive statute. When considering a conviction under
an overinclusive statute, the sentencing court looks to
whether the statute is overinclusive because it defines a


    3
     In Almanza-Arenas, this court addressed whether a conviction under
a state statute qualified as a crime of moral turpitude under 8 U.S.C.
§ 1227(a)(2)(A)(i). The modified categorical analysis is the same for
determining whether convictions constitute predicate offenses for
purposes of collateral immigration consequences as for purposes of the
ACCA enhancement. Cf. Rendon v. Holder, 764 F.3d 1077, 1083 n.5 (9th
Cir. 2014) (“Although Descamps discussed the issue of divisibility in the
context of a sentence enhancement under the Armed Career Criminal Act
(ACCA), we have applied Descamps in the context of collateral
immigration consequences.”).
                  UNITED STATES V. WERLE                       7

necessary term or element more broadly than does the generic
offense, or because it provides an alternative list of means or
elements, some of which would and some of which would not
match the generic offense. If the statute of conviction defines
the offense “not alternatively, but only more broadly than the
generic offense,” it is indivisible and the court’s inquiry ends.
Id. at 2283. If the statute offers a list of alternative means or
elements, the court must determine if the statute is divisible.
In a “narrow range of cases,” when the state statute is
divisible, that is, it “lists alternative sets of elements, in
essence ‘several different crimes’” and “at least one, but not
all of those crimes matches the generic version, a court needs
a way to find out which the defendant was convicted of.”
Ramirez v. Lynch, 2016 U.S. App. LEXIS 901, at *6 (9th Cir.
Jan. 20, 2016). Only in such a case may the sentencing court
review the conviction using the modified categorical
approach. Id. at *6–*7. “[T]he modified categorical
approach permits sentencing courts to consult a limited class
of documents, such as indictments and jury instructions, to
determine which alternative formed the basis of the
defendant’s prior conviction.” Descamps, 133 S. Ct. at 2281.

    The limited scope of the inquiry under the categorical
approach and the even more limited application of the
modified categorical approach are rooted in the ACCA’s
statutory language, the Sixth Amendment’s requirement that
facts that increase a defendant’s maximum penalty be proven
to a jury beyond a reasonable doubt, and practical concerns.
The ACCA specifically provides that its sentencing
enhancement applies to a defendant who “has three ‘previous
convictions’ for a violent felony–not a defendant who has
thrice committed such a crime.” Id. at 2287 (quoting 18
U.S.C. § 924(e)(1)). The Supreme Court has interpreted this
statutory language to show that “Congress intended the
8                 UNITED STATES V. WERLE

sentencing court to look only to the fact that the defendant
had been convicted of crimes falling within certain
categories, and not to the facts underlying the prior
convictions.” Taylor, 495 U.S. at 600. Accordingly, the
categorical approach limits its inquiry to the statutory
language, rather than the facts of conviction. Moreover, the
Sixth Amendment requires that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Because
the ACCA sentencing enhancement increases the mandatory
minimum beyond the ordinary ten-year maximum penalty for
§ 922(g), Sixth Amendment principles “counsel against
allowing a sentencing court to ‘make a disputed’
determination ‘about what the defendant and state judge must
have understood as the factual basis of the prior plea,’ or what
the jury in a prior trial must have accepted as the theory of the
crime.” Descamps, 133 S. Ct. at 2288 (quoting Shepard v.
United States, 544 U.S. 13, 25 (2005) (plurality opinion)).
Finally, application of the modified categorical approach to
indivisible statutes would present “‘daunting’ difficulties and
inequities” because it would require sentencing courts

        to expend resources examining (often aged)
        documents for evidence that a defendant
        admitted in a plea colloquy, or a prosecutor
        showed at trial, facts that, although
        unnecessary to the crime of conviction, satisfy
        an element of the relevant generic offense.
        The meaning of those documents will often be
                   UNITED STATES V. WERLE                           9

          uncertain. And the statements of fact in them
          may be downright wrong.

Id. at 2289 (quoting Taylor, 495 U.S. at 601–02).

    Limiting the application of the modified categorical
approach to divisible statutes “retains the categorical
approach’s central feature: a focus on the elements, rather
than the facts, of a crime” because a “prosecutor charging a
violation of a divisible statute 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. . . .” Id. at 2285, 2290 (internal citations omitted).

       B. Application of the Categorical Approach to the
          Washington Riot Statute

    When Appellant was convicted, Washington state’s riot
statute provided,

          A person is guilty of the crime of riot if,
          acting with three or more other persons, he or
          she knowingly and unlawfully uses or
          threatens to use force, or in any way
          participates in the use of such force, against
          any other person or against property.

Wash. Rev. Code § 9A.84.010.4 The crime is a felony only
“if the actor is armed with a deadly weapon.” Id.



   4
       The riot statute was amended effective January 1, 2014. The
substantive offense is the same, but the name “riot” was replaced with
“criminal mischief.”
10                UNITED STATES V. WERLE

    The district court found, and the parties agree, that
because a defendant can be convicted of a felony under the
Washington riot statute for conduct involving a person or
merely property, it is overinclusive and therefore not a violent
felony under the categorical approach. The parties also agree
that the statute is divisible as to whether the offense was
against a person or property. Accordingly, if the statute was
not overinclusive in any other way, the court could look to the
limited documents permitted to be considered under the
modified categorical approach to determine whether
Appellant was convicted of the offense against a person or the
offense against property.

    In its decision, the district court relied on two prior
unpublished decisions from this court, which are not
controlling precedent, to find that the statute was
overinclusive and divisible and the modified categorical
approach was applicable. Both of those cases, United States
v. Franetich, 344 F. App’x 416 (9th Cir. 2009), and United
States v. Lopez-Salas, 254 F. App’x 621 (9th Cir. 2007),
addressed the divisibility of the statute after finding that it is
overinclusive because it covers acts committed against
property. However, Appellant argues, as he did in the district
court, that the statute is overinclusive in two other ways. The
district court did not address whether the statute was
overinclusive in these ways. As discussed below, we
conclude that the riot statute is also overinclusive and
indivisible because it applies even if the defendant used only
the minimal amount of force considered “force” under
                     UNITED STATES V. WERLE                              11

Washington state law, which would not be included in the
definition of “physical force” under the ACCA.5

    That the riot statute is overinclusive but divisible as to
whether the offense involves an act against a person or
against property reveals nothing as to whether it is divisible
with respect to its overinclusive definition of force. If a
statute is overinclusive and indivisible as to any required
element, the modified categorical approach cannot be applied
to that statute. The Sixth Amendment underpinnings of the
categorical approach support our conclusion that the
divisibility of one statutory requirement does not allow the
application of the modified categorical approach to all
elements. The fact that a statute is divisible as to one
requirement does nothing to ensure that a jury has found, or
that a defendant has pled guilty to, any other requirement of
a predicate offense.

    Accordingly, even if the earlier unpublished decisions of
this court were binding precedent, they would not establish
that the modified categorical approach applies to all statutory
requirements under the Washington riot statute. Thus, we

   5
        Appellant also argues that the riot statute is overinclusive and
indivisible with respect to the requirement of use, threat of use, or
participation in any way in the use of force. We agree that the inclusion
of the “participation” prong renders the statute overinclusive as to this
requirement. Whether the statute is divisible as to that prong may rest on
unsettled law. See United States v. Mathis, 786 F.3d 1068, 1075 n.6 (8th
Cir. 2015), cert. granted 2016 U.S. LEXIS 710 (discussing the circuit split
regarding divisibility analysis). However, the question of divisibility as
to the use, threat of use, or participation in any way in the use of force is
a moot point. Because, as we hold below, the riot statute defines force
more broadly than the ACCA, a conviction under the statute can never
qualify as a violent felony for purposes of the ACCA sentencing
enhancement.
12               UNITED STATES V. WERLE

must address whether the Washington riot statute is
overinclusive as to the level of force required for conviction.

     The ACCA enhancement requires an offense including
“physical force,” which is defined as “violent force–that is,
force capable of causing physical pain or injury to another
person.” Johnson v. United States, 559 U.S. 133, 140 (2010)
(emphasis in original). The Washington riot statute refers
only to “force” and does not specify that it must be physical,
or capable of causing any pain or injury. While there are no
cases interpreting the term “force” in the context of the riot
statute, Washington state law defines force much more
broadly in other contexts. See, e.g., City of Pasco v. Ross,
649 P.2d 37, 39 (Wash. Ct. App. 1985) (“The terms
‘violence’ and ‘force’ are synonymous when used in relation
to assault, and include any application of force, even though
it entails no pain, bodily harm, or serious injury.”). There is
nothing to suggest that force would be defined more narrowly
for purposes of the riot statute. Accordingly, the riot statute
is overinclusive because it defines force more broadly than
physical force as defined by Johnson.

    The United States concedes that the Washington riot
statute does not require the level of force required by Johnson
as a necessary element of the offense. Nevertheless, the
United States argues that felony riot is categorically a violent
felony under Johnson because it requires that the defendant
was an “actor” armed with a deadly weapon.

    However, the fact that an individual is armed does not
necessarily mean that he or she has used the weapon in any
way. Again, there are no cases interpreting the definition of
“armed” within the context of the riot statute. However, there
are many cases interpreting the term for purposes of a
                 UNITED STATES V. WERLE                      13

Washington state sentencing enhancement. See Wash. Rev.
Code. § 9.94A.825 (Deadly weapon special verdict –
Definition). The Washington Supreme Court has held that an
individual is “armed” for purposes of the sentencing
enhancement “if a weapon is easily accessible and readily
available for use, either for offensive or defensive purposes.”
State v. Gurske, 118 P.3d 333, 335 (Wash. 2005) (quoting
State v. Schelin, 55 P.3d 632, 635 (Wash. 2002)); see also
State v. Sabala, 723 P.2d 5 (Wash. Ct. App. 1986) (defendant
was armed when a gun was under his seat in the car he was
in, within reach, and thus easily accessible). The United
States correctly points out that Washington courts have held
that, for the sentencing enhancement to apply, there must be
a “nexus between the defendant, the crime, and the weapon.”
Gurske, 118 P.3d at 335. However, the sentencing
enhancement simply requires some “willingness to use” the
weapon, not actual use of the weapon. State v. Brown, 173
P.3d 245, 249 (Wash. 2007). Moreover, the Washington
Supreme Court has held that, to apply the sentencing
enhancement, “the connection between the defendant, the
weapon, and the crime is not an element the State must
explicitly plead and prove.” State v. Easterlin, 149 P.3d 366,
369 (Wash. 2006). Therefore, as Appellant argues, a
defendant could be convicted of felony riot if there was a
knife in his pocket or a gun within his reach but he did not
use or threaten to use physical force. This would not qualify
as a crime of violence under the ACCA.

    The United States also argues that the riot statute is saved
from overinclusiveness because the defendant must have been
an “actor.” This argument also fails because the statute
criminalizes the acts of use, threat of use, or participation in
any way in the use of force. When analyzing an earlier
version of the riot statute, the Washington Supreme Court
14               UNITED STATES V. WERLE

held that a defendant’s “conduct does not have to be turbulent
nor his language violent to constitute him a rioter.” State v.
Moe, 24 P.2d 638, 639 (Wash. 1933). Instead, to be
convicted, a defendant must only give “some word or gesture
indicating at least a willingness to assist the rioters.” Id.
Therefore, a defendant could be convicted of riot if he acted
to verbally encourage others who were using non-physical
force. This would not qualify as a crime of violence under
the ACCA.

    Combining the requirement that a defendant was an
“actor” with the requirement that the defendant was armed
does not transform the statute into a categorical violent
felony. A defendant could be convicted of felony riot if there
was a knife in his pocket or a gun within his reach and he did
no more than verbally encourage others who were using non-
physical force. This likewise would not qualify as a crime of
violence for purposes of the ACCA enhancement.

    In order for a statute to be overinclusive there must be a
“realistic probability,” not merely a “theoretical possibility,”
that the State would apply its statute to conduct outside the
federal generic definition. See Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007). That standard is met here. As we
have explained, the United States concedes that the
Washington felony riot statute could be applied to a
defendant who did not use the level of “violent force”
required by the federal statute. The United States argues only
that a defendant who has not used such force but is an actor
who is armed with a deadly weapon has “per se” committed
a violent felony. However, the Washington cases cited above
distinguish between being armed with a deadly weapon and
actually using or threatening to use that weapon. Washington
case law also makes clear that a defendant need not act
                 UNITED STATES V. WERLE                      15

violently to be convicted under the riot statute. The
Washington riot statute does not require the use or threatened
use of a deadly weapon for the crime to be considered a
felony. It requires only that the defendant “in any way
participate[]” in the use of force while “armed” with such a
weapon. Therefore, the “state statute’s greater breadth is
evident from its text” and Appellant “need not point to an
actual case applying the statute of conviction in a nongeneric
manner.” See Chavez-Solis v. Lynch, 803 F.3d 1004, 1010
(9th Cir. 2015) (internal quotation marks omitted) (quoting
United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en
banc)).

    Accordingly, the Washington riot statute is overinclusive
as to the type of force used because it does not require the use
of “force capable of causing physical pain or injury to another
person” as required by Johnson, 559 U.S. at 140. As in
Descamps, this overinclusiveness “does not concern any list
of alternative elements.” 133 S. Ct. at 2285. Instead, “it
involves a simple discrepancy” between the “physical force”
required by the ACCA and the definition of “force” under
Washington state law. Id. Therefore, the modified
categorical approach “has no role to play in this case,” id.,
and the Sixth Amendment requires that we “presume that the
conviction rested upon nothing more than the least of the acts
criminalized under the state statute.” Mellouli v. Lynch, 135
S. Ct. 1980, 1986 (2015) (internal quotation marks omitted).

    We hold that the Washington riot statute does not qualify
as a violent felony for purposes of the ACCA sentencing
enhancement. Therefore, Appellant’s convictions under that
statute are not predicate offenses supporting the application
of the enhancement. Accordingly, we VACATE the sentence
16             UNITED STATES V. WERLE

and REMAND to the district court for resentencing without
applying the ACCA enhancement.

     VACATED and REMANDED.
