Scott Wehmhoefer v. United States

Mr. Wehmhoefer is serving a life sentence under the rarely invoked Federal Three Strikes statute, 18 U.S.C. § 3559(c). The strikes alleged here were violations of Texas’s aggravated robbery statute, a statute that in both its simple and aggravated form can be committed by reckless conduct. Ignoring the government’s suggestion that the Court hold the case pending this Court’s decision in Borden v. United States, 19-5410, the Ninth Circuit, instead, affirmed the denial of Mr. Wehmhoefer’s petition. Over the dissent of one its members, the panel found that Texas simple robbery was indivisible. While recognizing that Texas’s highest court had held that the relevant statutory alternatives “are different methods of committing the same offense,” the Ninth Circuit held that that holding did not undermine its conclusion that the statute was divisible. And it ignored numerous Texas cases actually charging multiple variants of Texas robbery in a single count, and instructing the jury as to multiple variants without requiring unanimity—markers that this Court has called “as clear an indication as any” that a statute is not divisible. Mathis v. United States, 136 S. Ct. 2243, 2257 (2016). In other words, the same Ninth Circuit that this Court once chastised for flouting this Court’s precedents on divisibility— ”[d]ismissing everything we have said on the subject” and choosing an analysis that has “no roots in our precedents,” Descamps v. United States, 570 U.S. 254, 265-66 (2013)—is at it again. The question presented is whether the life sentence imposed in this case pursuant to 18 U.S.C. § 3559(c) is invalid, because Texas aggravated robbery, which can be committed by reckless conduct, is not a serious violent felony after Johnson v. United States, 576 U.S. 591 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), because it is indivisible and overbroad.