United States of America v. Allen K. Tagatac

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALLEN K. TAGATAC,
Defendant-Appellant.
No. 21-10133
D.C. Nos.
1:20-cr-00063-JAO-1
1:20-cr-00063-JAO
OPINION
Appeal from the United States District Court
for the District of Hawaii
Jill Otake, District Judge, Presiding
Argued and Submitted April 14, 2022
San Francisco, California
Filed June 10, 2022
Before: Jay S. Bybee and Ryan D. Nelson, Circuit Judges,
and Susan R. Bolton,* District Judge.
Opinion by Judge R. Nelson
* The Honorable Susan R. Bolton, United States District Judge for
the District of Arizona, sitting by designation.

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2 UNITED STATES V. TAGATAC
SUMMARY**
Criminal Law
The panel affirmed a sentence in a case in which the
defendant challenged his designation as a career offender
under U.S.S.G.§ 4B1.1(a)(3), arguing that an earlier Hawai’i
state conviction for second-degree robbery does not qualify
as a crime of violence under the categorical approach in
Taylor v. United States, 495 U.S. 575 (1990).
The defendant argued that Hawai’i’s second-degree
robbery statute, Haw. Rev. Stat. § 708-841 (1986), is not
divisible and sweeps too broadly to be a crime of violence
because § 708-841(1)(c) criminalizes reckless conduct. He
conceded that, if the statute is divisible, his conviction under
§ 708-841(1)(b) (in the course of committing theft,
threatening the imminent use of force with intent to compel
acquiescence) is a crime of violence. Noting that the
Supreme Court of Hawai’i has weighed in on the question,
the panel held that the subsections in the statute describe
unique elements of separate offenses, not alternative means
of committing the same offense, and that the statute is
therefore divisible. The panel wrote that this conclusion is
confirmed by the jury instructions for the defendant’s
offense, and therefore rejected the defendant’s contention
that because Hawai’i requires jury unanimity for various
reasons, unanimity cannot establish divisibility. The panel
explained that even if there are some instances when
unanimity may be required for other reasons, the Hawai’i
courts use unique jury instructions for each subsection of the
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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UNITED STATES V. TAGATAC 3
second-robbery statute, such that the jury cannot disagree on
whether a defendant charged with violating subsection (b)
threatened the imminent use of force with intent to compel
acquiescence.
COUNSEL
Maximilian J. Mizono (argued), Assistant Federal Public
Defender; Salina M. Kanai, Federal Public Defender; Office
of the Federal Public Defender, Honolulu, Hawaii; for
Defendant-Appellant.
Michael Francis Albanese (argued), Attorney; Marion
Percell, Chief of Appeals; Judith A. Philips, Acting United
States Attorney; United States Attorney’s Office, Honolulu,
Hawaii; for Plaintiff-Appellee.
OPINION
R. NELSON, Circuit Judge:
Allen Tagatac was convicted of bank robbery and
sentenced as a career offender. Tagatac appeals that
designation, arguing that an earlier state conviction for
second-degree robbery does not qualify as a crime of
violence under the categorical approach in Taylor v. United
States, 495 U.S. 575 (1990). We hold that Hawai‘i’s second-
degree robbery statute is divisible and Tagatac’s conviction
under subsection (b) is a crime of violence.
I
Years before his federal bank robbery conviction,
Tagatac was convicted of second-degree robbery and

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4 UNITED STATES V. TAGATAC
second-degree assault in Hawai‘i state court. When the
district court sentenced Tagatac for his instant federal
offense, it concluded that the prior convictions rendered him
a career offender. That designation led to a ten-level
increase in his offense level, with a corresponding
Sentencing Guidelines range of 151 to 188 months.
Tagatac objected to the career offender determination,
arguing that he did not meet the Guidelines’ requirement that
he have “at least two prior felony convictions of . . . a crime
of violence.” U.S.S.G. § 4B1.1(a)(3). He asserted that his
second-degree robbery conviction was not a “crime of
violence” because the statute swept too broadly to be so
categorized under Taylor’s categorical approach.
At the time of Tagatac’s second-degree robbery
conviction, Hawai‘i law provided that:
(1) A person commits the offense of robbery
in the second degree if, in the course of
committing theft:
(a) The person uses force against the
person of anyone present with the intent
to overcome that person’s physical
resistance or physical power of
resistance;
(b) The person threatens the imminent
use of force against the person of anyone
who is present with intent to compel
acquiescence to the taking of or escaping
with the property; or
(c) The person recklessly inflicts serious
bodily injury upon another.

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UNITED STATES V. TAGATAC 5
(2) Robbery in the second degree is a class B
felony.
Haw. Rev. Stat. § 708-841 (1986).
The district court found that Tagatac’s second-degree
robbery conviction was a crime of violence. It held that the
Hawai‘i statute was divisible, noting that each subsection of
the statute involved unique mens rea and conduct elements
and that Hawai‘i courts require unanimity when a jury
decides those elements. After determining that Tagatac was
a career offender, the district court sentenced him to
125 months’ incarceration (below the Guidelines range).
Tagatac appeals the district court’s judgment, arguing
that the court improperly based its career offender decision
on the fact that Hawai‘i requires jury unanimity.
II
We have jurisdiction to review Tagatac’s conviction and
sentence under 28 U.S.C. § 1291. “We review de novo the
classification of a defendant’s prior conviction for purposes
of applying the Sentencing Guidelines.” United States v.
Murillo-Alvarado, 876 F.3d 1022, 1028 (9th Cir. 2017)
(quoting United States v. Coronado, 603 F.3d 706, 708 (9th
Cir. 2010)).
III
Tagatac argues that Hawai‘i’s second-degree robbery
statute is not divisible and sweeps too broadly to be a crime
of violence because subsection (c) criminalizes reckless
conduct. See Borden v. United States, 141 S. Ct. 1817, 1825
(2021) (identical definition for “violent felony” in Armed
Career Criminal Act does not include reckless conduct). If

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6 UNITED STATES V. TAGATAC
the statute is divisible, he concedes that his conviction under
subsection (b) is a crime of violence.
The Sentencing Guidelines state that a felony conviction
is a “crime of violence” if it falls under either of two clauses.
First, the conviction is a crime of violence if it “has as an
element the use, attempted use, or threatened use of physical
force against the person of another.” U.S.S.G.
§ 4B1.2(a)(1). This clause, called the “elements” or “force”
clause, is the focus of Tagatac’s appeal. A felony conviction
might also qualify as a crime of violence if it falls under the
“enumerated offenses” clause, which includes “aggravated
assault . . . [or] robbery.” Id. § 4B1.2(a)(2).1
To determine whether a conviction is a crime of
violence, we do not look to the facts underlying the
conviction. Instead, the Supreme Court requires us to
employ a categorical approach that looks to the statutory
definition of the offense and the fact of conviction itself.
Taylor, 495 U.S. at 602. If the statute criminalizes conduct
beyond that covered by the Guidelines—regardless of the
defendant’s actual conduct—the conviction is not a crime of
violence. See United States v. Brown, 879 F.3d 1043, 1047
(9th Cir. 2018). Where a statute describes conduct on both
sides of the line, we must determine whether it is divisible.
If the statute describes different ways to prove a single set of
elements, it is indivisible. Mathis v. United States, 579 U.S.
500, 504–05 (2016). In contrast, a statute is divisible if it
1 Although Tagatac’s appeal focuses on the elements clause, the
government alternatively argues that his robbery conviction qualifies as
a crime of violence under the enumerated offense clause and his assault
conviction qualifies under both clauses. Because we conclude that
Tagatac’s conviction is a crime of violence under the elements clause,
we do not reach the government’s alternative arguments.

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UNITED STATES V. TAGATAC 7
lists alternative elements and thereby describes alternative
crimes. Id. at 505–06.
If the statute is divisible, the modified categorical
approach permits us to look at charging documents, jury
instructions, plea agreements, colloquies, and other “equally
reliable document[s]” to determine which elements underlie
a defendant’s conviction. Id. at 505–06; Murillo-Alvarado,
876 F.3d at 1028 (quoting Coronado v. Holder, 759 F.3d
977, 986 (9th Cir. 2014)). Jury instructions aid our analysis
because they reveal whether a statute’s subparts describe
different ways to commit the same crime or separate crimes
with unique elements. See Descamps v. United States,
570 U.S. 254, 257 (2013). If a subpart’s jury instructions
require unanimity, the statute is divisible because the jury
must agree that the defendant’s conduct fell under that
subpart and we need not worry that some jurors convicted
the defendant for conduct described in other parts of the
statute. Id. at 272–73. On the other hand, instructions that
do not require unanimity allow jurors to disagree on which
subpart describes the defendant’s conviction. See id. In
those circumstances, the fact of conviction cannot tell us
which subpart describes the defendant’s conduct. See id.
at 273.
The divisibility question often turns on how state courts
handle a particular statute. See United States v. Martinez-
Lopez, 864 F.3d 1034, 1040 (9th Cir. 2017) (en banc).
“[W]hat must be divisible are the elements of the crime, not
the mode or means of proving an element.” United States v.
Cabrera-Gutierrez, 756 F.3d 1125, 1137 n.16 (9th Cir.
2014). Hawai‘i courts look to the text of the statute,
legislative intent, and principles of fairness under the due
process clause of the Hawai‘i constitution. See State v.
Jones, 29 P.3d 351, 364–67 (Haw. 2001).

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8 UNITED STATES V. TAGATAC
To determine whether Tagatac’s conviction is a crime of
violence, we must decide whether the subsections in the
second-degree robbery statute describe unique elements of
separate offenses or different ways to commit the same
offense. Fortunately, the Supreme Court of Hawai‘i has
weighed in on this question. In State v. Iuli, 65 P.3d 143,
153 (Haw. 2003), the court explained that the elements for
an offense under subsection (a) are “(1) the attendant
circumstances (that the defendant was in the course of
committing a theft); and (2) the conduct (that the defendant
used force against a person who was present with intent to
overcome that person’s physical resistance or physical
power of resistance).” Because the conduct element of an
offense under subsection (a) is described only in subsection
(a)—and not in the other subsections—each subsection must
describe an alternative element. A defendant is guilty of
violating subsection (b) if, while committing theft, he
“threatens the imminent use of force against the person of
anyone who is present with intent to compel acquiescence to
the taking of or escaping with the property.” Haw. Rev. Stat.
§ 708-841(1)(b). But he is guilty of an offense under
subsection (c) if, while committing theft, he “recklessly
inflicts serious bodily injury upon another.” Id. Because
these are unique elements—not alternative means—the
statute is divisible.
Although we may end our analysis with Iuli, we also note
that our conclusion is confirmed by the jury instructions for
Tagatac’s offense. See Mathis, 579 U.S. at 505. Tagatac
contends that unanimity cannot establish divisibility because
Hawai‘i requires jury unanimity for various reasons. We
disagree. As the government readily concedes, unanimity
might be required for reasons other than agreement on the
elements of an offense. Even so, unanimity can establish
divisibility regardless of its other purposes.

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UNITED STATES V. TAGATAC 9
If jury instructions require unanimity, the statute is
divisible because the jury must be clear that each individual
element was satisfied for each crime. If not, the statute might
be indivisible because the subparts could merely describe
different ways to commit the same offense. See Descamps,
570 U.S. at 257–58. Tagatac argues that we should not rely
on the jury instruction’s unanimity requirement because
Hawai‘i also requires unanimity on the specific facts proving
a charged offense. But even if there are some instances when
unanimity may be required for other reasons, the jury
instructions confirm that Hawai‘i’s second-degree robbery
statute is divisible. Hawai‘i courts use unique jury
instructions for each subsection of the second-degree
robbery statute. “While the jury faced with a divisible
statute must unanimously agree on the particular offense of
which the petitioner has been convicted (and thus, the
alternative element), the opposite is true of indivisible
statutes . . . .” Rendon v. Holder, 764 F.3d 1077, 1085 (9th
Cir. 2014). The jury therefore cannot disagree on whether a
defendant charged with violating subsection (b)
“threaten[ed] the imminent use of force . . . with intent to
compel acquiescence.” Haw. Rev. Stat. § 708-841(1)(b).
IV
Hawai‘i’s second-degree robbery statute is divisible,
Tagatac’s conviction was a crime of violence, and the district
court did not err in concluding that Tagatac is a career
offender.
AFFIRMED.

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