Jessie Chavez-Echeverria pleaded guilty in 2024 to being a felon in possession of a firearm. At sentencing, the government sought to enhance his base offense level to 26 under the Sentencing Guidelines, arguing that he had sustained at least two prior felony convictions for crimes of violence. While the defendant admitted one prior conviction for third-degree assault qualified, he contested that his 2021 Oregon conviction for attempted first-degree assault met the definition of a crime of violence. The district court accepted the government's position, calculating a sentencing range of 108 to 135 months and imposing an 80-month sentence. Chavez-Echeverria appealed, challenging the classification of the prior conviction.
The panel applied the categorical approach to determine if the Oregon statute for attempted first-degree assault necessarily involves the 'attempted use' of physical force. The court relied on its precedent in United States v. Linehan, which established that 'attempted use' of physical force means taking a 'substantial step' toward the use of physical force. The court explained that Linehan adopted the established legal meaning of attempt without requiring the 'probable desistance' test often applied to substantive criminal offenses. Under Oregon law, attempted first-degree assault requires a defendant to take a substantial step toward causing serious physical injury. Because the statute mandates this substantial step toward causing injury, it necessarily entails a substantial step toward the use of physical force. The court rejected the defendant's argument that the federal definition of attempt was broader or different, noting that the force clause does not require comparing state attempt liability to a generic federal attempt offense.
The decision affirms the enhanced sentence and clarifies that the force clause in the Sentencing Guidelines does not incorporate the probable desistance test. This means that state attempt statutes requiring a substantial step toward a harmful result will likely qualify as crimes of violence even if they do not meet the stricter probable desistance standard used in other Ninth Circuit contexts. The case is remanded to the district court to enforce the affirmed sentence.
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