Appellate Case: 25-8002 Document: 48-1 Date Filed: 03/06/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 6, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 25-8002 (D.C. No. 2:24-CR-00070-SWS-1) BRIAN NEIL WIGGINS, (D. Wyo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before PHILLIPS and McHUGH, Circuit Judges, and VRATIL, District Judge. ** _________________________________
Defendant-Appellant Brian Neil Wiggins appeals his 192-month sentence for
firearm and drug offenses. Mr. Wiggins’s sentence rested in part on the district
court’s conclusion that he was a career offender under § 4B1.1 of the U.S. Sentencing
Commission Guidelines because he had at least two prior convictions of either a
crime of violence or a controlled substance offense. One of Mr. Wiggins’s prior
convictions was second-degree assault under Oregon law. On appeal, Mr. Wiggins
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. ** The Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. Appellate Case: 25-8002 Document: 48-1 Date Filed: 03/06/2026 Page: 2
argues that the district court erred when it held that second-degree assault in Oregon
was a crime of violence. Exercising jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742, we affirm.
I. LEGAL FRAMEWORK
The parties dispute whether the district court erred in concluding that
Mr. Wiggins’s prior second-degree assault conviction was a crime of violence.
Because an understanding of the legal framework is necessary to put the parties’
arguments and the district court proceedings in context, we begin with an overview
of that legal background. In particular, we set forth the law surrounding the
designation of a conviction as a crime of violence and the elements of the Oregon
assault statute under which Mr. Wiggins was previously convicted. Then, we turn to
the factual and procedural history.
A. Crime of Violence
Under U.S.S.G. § 4B1.1(a), a defendant is a “career offender” if, among other
things, he “has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” The Guidelines define a “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, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).
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U.S.S.G. § 4B1.2(a). The first of these definitions is called the “elements clause,”
and the second is the “enumerated clause.” United States v. Devereaux, 91 F.4th
1361, 1363 n.4 (10th Cir. 2024) (quotation marks omitted).
To determine when a past offense qualifies as a crime of violence, courts
employ the “categorical approach,” which “focuses on the elements of the prior
offense of conviction and not on the defendant’s actual conduct underlying that prior
conviction.” Id. at 1364. Under this approach, “[i]f any—even the least culpable—of
the acts criminalized” do not meet the federal definition, “the statute of conviction
does not categorically match the federal standard” and cannot be counted as a crime
of violence under federal law. United States v. Sanchez, 13 F.4th 1063, 1078 (10th
Cir. 2021) (quoting Borden v. United States, 593 U.S. 420, 424 (2021)). Thus, the
court considers the least culpable conduct that could violate the statute to determine
whether it is a crime of violence under either the elements or enumerated clause of
the Guidelines definition.
A variation of this rule applies if the statute can be divided into separate
crimes—meaning it “sets out one or more of the elements in the alternative, e.g.,
burglary involving entry into a building or an automobile.” Descamps v. United
States, 570 U.S. 254, 257 (2013). This “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.” Id. The court then compares the elements of the crime of
conviction with the federal crime-of-violence definition, again assessing whether the
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least culpable conduct necessary to violate the particular section under which the
defendant was convicted is a crime of violence.
B. Oregon Assault Statute
Under Oregon law, second-degree assault is defined as:
(a) Intentionally or knowingly caus[ing] serious physical injury to another; (b) Intentionally or knowingly caus[ing] physical injury to another by means of a deadly or dangerous weapon; or (c) Recklessly caus[ing] serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life. Or. Rev. Stat. § 163.175(1) (2005). The parties agree that the current version of the
statute was in place when Mr. Wiggins was convicted in 2008. The parties disagree as to
whether and how the statute is divisible.
II. FACTUAL AND PROCEDURAL BACKGROUND
In March 2024, a confidential source informed Wyoming law enforcement
agents that Mr. Wiggins regularly carried a firearm and was selling “large amounts of
methamphetamine and fentanyl.” ROA Vol. II at 43. The agents discovered that
Mr. Wiggins was on parole in Casper, Wyoming, and that he had an upcoming
meeting with his parole officer. When Mr. Wiggins arrived for that meeting, officers
detained him and searched his truck. They later searched his apartment, too. Their
searches revealed multiple firearms, baggies of methamphetamine and fentanyl, and
drug paraphernalia.
Based on these events, a grand jury in the District of Wyoming indicted
Mr. Wiggins on six counts of firearm and drug offenses. Mr. Wiggins pleaded guilty 4 Appellate Case: 25-8002 Document: 48-1 Date Filed: 03/06/2026 Page: 5
to three of them—two counts of felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(8), and one count of possession with intent to
distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B).
A. Presentence Report’s Career-Offender Enhancement
After Mr. Wiggins pleaded guilty, a probation officer filed a presentence
investigation report (“PSR”) that calculated Mr. Wiggins’s Guidelines range. The
PSR concluded that Mr. Wiggins was a “career offender” under U.S.S.G. § 4B1.1
because he had “at least two prior felony convictions of either a crime of violence or
a controlled substance offense.” ROA Vol. II at 45 (quoting U.S.S.G. § 4B1.1(a)(1)–
(3)). Specifically, the PSR noted that Mr. Wiggins had previously been convicted in
Oregon of first-degree robbery and intent to distribute a controlled substance. The
career offender designation increased the calculation of Mr. Wiggins’s Guidelines
range from 100 to 125 months to 188 to 235 months.
Mr. Wiggins objected to the PSR’s career-offender determination. Although he
did not dispute that he previously committed a controlled substance offense, he
argued that first-degree robbery under Oregon law did not meet the Guidelines’
definition of a crime of violence.
The Government did not directly respond to Mr. Wiggins’s robbery argument.
It instead argued that Mr. Wiggins was a career offender regardless of his robbery
conviction because, in addition to his controlled substance offense, he had been
convicted of second-degree assault under Oregon law in 2008. The Government
contended that a conviction under Oregon’s second-degree assault statute, Or. Rev. 5 Appellate Case: 25-8002 Document: 48-1 Date Filed: 03/06/2026 Page: 6
Stat. § 163.175, categorically qualifies as a crime of violence because the statute does
not criminalize any conduct that would fall outside the Guidelines’ crime-of-violence
definition. The Government further argued that even if the statute considered as a
whole could encompass conduct that would not qualify as a crime of violence under
the categorical approach, the statute creates three separate, divisible paths to liability
for second-degree assault described in the individual subsections. And the
Government argued that subsection (b), the subsection of the statute under which Mr.
Wiggins was convicted, does not criminalize any conduct that could fall outside the
definition of a crime of violence. Instead, it criminalizes “[i]ntentionally or
knowingly caus[ing] physical injury to another by means of a deadly or dangerous
weapon.” Or. Rev. Stat. § 163.175(1)(b) (2005).
Mr. Wiggins disagreed. He argued that Oregon’s second-degree assault statute
was not divisible and that it swept more broadly than the Guidelines’ definition of
crime of violence. In other words, he argued that it criminalized conduct that did not
involve “the use, attempted use, or threatened use of physical force against the person
of another.” ROA Vol. II at 71 (quoting U.S.S.G. § 4B1.2(a)(1)). According to
Mr. Wiggins, Oregon’s second-degree assault statute did not meet the mens rea
requirement for a crime of violence because it criminalized negligent conduct. In
support, he relied on a case from the District of Oregon, Tristan v. United States,
Nos. 16-1137, 13-0542, 2018 WL 3117637 (D. Or. June 25, 2018), in which the court
held that Oregon’s second-degree assault statute is not a crime of violence because
the definition of “knowing” under Oregon law does not require “an intent to cause
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physical injury or knowledge that physical injury will result,” and because the statute
permitted accomplice liability on conduct that would not meet the Guidelines’
definition of a crime of violence. ROA Vol. II at 91–92 (quoting Tristan, 2018 WL
3117637 at *4, 7–8). 1
In the alternative, Mr. Wiggins argued that even if the statute were divisible
according to principal and accomplice liability, the documents the court could
consider—like the “indictment, jury instructions, or plea agreement and colloquy”—
did not clearly show the theory under which he was convicted. Id. at 94 (quoting
Devereaux, 91 F.4th at 1365). So, he argued that any overbreadth in the statute
precluded classifying his second-degree assault conviction as a crime of violence.
1 On appeal, Mr. Wiggins argues only that Oregon’s second-degree assault statute fails to constitute a crime of violence because it permits conviction as an accomplice for negligent conduct. Accordingly, we do not consider the question of whether the definition of “knowingly” in this statute permits convictions that could fall outside the definition of a crime of violence under U.S.S.G. § 4B1.2. See Day v. SkyWest Airlines, 45 F.4th 1181, 1189 n.6 (10th Cir. 2022) (declining to address issues not raised on appeal). We leave that question for another day. Compare State v. Barnes, 986 P.2d 1160, 1166 (Or. 1999) (explaining that “the definition of ‘knowingly’ addresses only ‘conduct’ and ‘circumstances’ and does not also include a reference to ‘result,’” thereby requiring no mens rea as to result), overruled in part by State v. Owen, 505 P.3d 953 (Or. 2022) (holding that Oregon’s assault statute requires at least a mens rea of negligence as to result), with Borden v. United States, 593 U.S. 420, 426 (2021) (noting that under federal law a person “acts knowingly when ‘he is aware that [a] result is practically certain to follow from his conduct,’ whatever his affirmative desire”). See also United States v. Sjodin, 139 F.4th 1188, 1203 (10th Cir. 2025) (applying Borden and holding that California’s assault statute’s mens rea requirement “simply spans too wide on the ‘culpability spectrum’ to constitute a crime of violence” because it permits convictions that lack “a specific intent to cause injury or a subjective awareness of the risk that an injury might occur” (quotation marks omitted)).
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B. Sentencing
The district court overruled Mr. Wiggins’s objection to the PSR and concluded
he was a career offender under U.S.S.G. § 4B1.1. The court agreed with the
Government that regardless of whether Oregon’s second-degree assault statute was
divisible according to its three subsections, the statute did not encompass any
conduct beyond the Guidelines’ crime-of-violence definition.
Ultimately, however, the district court concluded that Oregon’s second-degree
assault statute was divisible between accomplice liability and principal liability.
Nonetheless, the district court determined that the “indictment, informations, verdict
form, and judgment,” sufficiently showed that the jury found Mr. Wiggins guilty as a
principal and not an accomplice. Id. at 45–46. Accordingly, the district court rejected
Mr. Wiggins’s argument that the elements of second-degree assault as an accomplice
could cause his second-degree assault conviction to fall outside the Guidelines’
crime-of-violence definition. Id. at 45. The district court thus overruled
Mr. Wiggins’s objection to the PSR’s conclusion that he was a career offender under
§ 4B1.1, finding he had previously committed both a crime of violence and a
controlled substance offense. Because § 4B1.1 requires only two qualifying
convictions, the district court did not decide whether Mr. Wiggins’s first-degree
robbery conviction under Oregon law also qualified as a crime of violence.
The district court sentenced Mr. Wiggins to 192 months’ imprisonment.
Mr. Wiggins timely appealed.
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III. DISCUSSION
Mr. Wiggins contends that the district court erred by counting his Oregon
second-degree assault conviction as a crime of violence, which increased the
Guidelines range on which the district court based his sentence. Mr. Wiggins first
argues that the district court erred when it held that Oregon’s second-degree assault
statute is divisible between principal and accomplice liability. Then, Mr. Wiggins
argues that when he was convicted in 2008, Oregon law permitted accomplice
liability based on negligence, which is insufficient for an offense to qualify as a
crime of violence. Mr. Wiggins was unable to locate a copy of the jury instructions
actually given in his 2008 trial. Thus, to support his interpretation of Oregon law in
2008, Mr. Wiggins relies solely on a pattern jury instruction that some Oregon courts
still used at the time he was convicted. The instruction told juries that they could find
a defendant guilty of second-degree assault as an accomplice so long as the assault
was a “natural and probable consequence” of the crime the defendant intended to aid
and abet. Because that mens rea is insufficient to support a crime of violence,
Mr. Wiggins claims he does not qualify as a career offender.
The Government agrees with Mr. Wiggins that the Oregon assault statute is not
divisible as between principal and accomplice liability. But the Government rejects
the accomplice liability distinction raised by Mr. Wiggins as irrelevant and states that
“aiding and abetting is not a separate crime requiring elements be proven beyond a
reasonable doubt in order to be convicted.” Appellee’s Br. at 1–2. Instead, the
Government contends that it is “a theory of criminal liability which this court should
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not consider when analyzing the statute of conviction to determine if it is a crime of
violence.” Id. at 2. In the Government’s view, the statute is properly divided
according to its subsections, and each of those subsections meets the mens rea
requirement necessary to qualify as a crime of violence.
Because Mr. Wiggins’s argument prevails or fails based on his argument that
in 2008, the Oregon assault statute could be violated by an accomplice acting with
negligence, we need only consider that issue.
A. Standard of Review
“This court reviews de novo the question of whether a prior conviction
qualifies as a crime of violence under the Guidelines.” Devereaux, 91 F.4th at 1364
(internal quotation marks and brackets omitted). However, where a defendant
challenges a district court’s interpretation of the Guidelines based on an argument the
defendant did not raise in the district court, de novo review is inappropriate, and we
instead review for plain error. United States v. Ruiz-Gea, 340 F.3d 1181, 1185, 1187
(10th Cir. 2023); see also United States v. Taylor, 514 F.3d 1092, 1096 (10th
Cir. 2008) (“[W]here a party seeks on appeal to raise an issue not squarely presented
to the district court in order to allow it to exercise its judgment in the first
instance . . . we traditionally review only for plain error.”).
The Government contends that plain-error review applies because Mr. Wiggins
forfeited his argument that his offense was not a crime of violence based on Oregon’s
2008 pattern jury instructions, and that he subsequently waived that argument by
failing to argue plain-error review in his opening brief here. First, the Government
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asserts that Mr. Wiggins forfeited the argument before the district court because “the
only mention of the flawed natural and probable consequence pattern jury instruction
is in the order in Tristan that [Mr.] Wiggins attached to his pleading.” Appellee’s Br.
at 6 (citing ROA Vol. II at 145–47). According to the Government, Mr. Wiggins did
not preserve his argument for appeal because he did not specifically mention the
pattern jury instruction at the sentencing hearing or in his written objection to the
PSR, so “the district court did not address this theory either in its oral ruling or its
written order.” Id. at 6 (citing ROA Vol. I at 37–49, and then citing ROA Vol. III at
51–54). Second, the Government argues that Mr. Wiggins waived his argument on
appeal because he did not provide a plain-error analysis in his opening brief.
We disagree and conclude that Mr. Wiggins preserved his argument. In his
objection to the PSR’s career-offender determination, Mr. Wiggins invoked Tristan.
There, the District of Oregon held that the natural and probable consequences jury
instruction permitted convictions based on negligence until three years after
Mr. Wiggins’s conviction. Tristan, 2018 WL 3117637, at *8. Accordingly,
Mr. Wiggins offered it for the proposition that a conviction under Oregon’s second-
degree assault statute was not a crime of violence. At the sentencing hearing, the
parties discussed Tristan’s reasoning that an accomplice to second-degree assault
could be convicted on elements that fall below that required for a crime of violence
under the Guidelines. And the district court subsequently issued a written order
overruling Mr. Wiggins’s objection to the PSR, where it explained that in Tristan the
court “ultimately hung its hat on whether accomplice liability for Second-Degree
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Assault in Oregon, prior to 2011, would meet the definition of ‘crime of violence’
and determined possible accomplice liability makes Second-Degree Assault in
Oregon overbroad.” ROA Vol. I at 43 (footnote omitted). Because the district court
concluded that the statute was divisible according to principal and accomplice
liability, and Mr. Wiggins was convicted as a principal—a conclusion that
Mr. Wiggins appeals—it did not need to reach whether the statute encompassed
conduct falling below the crime-of-violence definition based on a theory involving
accomplice liability. Accordingly, the district court had the opportunity “to evaluate
[the] legal issue in light of its factual context, and to develop the factual record
necessary to resolve it—an opportunity to address the issue in the first instance, and
to avoid errors while they are still avoidable.” United States v. Hernandez-Rodriguez,
352 F.3d 1325, 1329 (10th Cir. 2003). De novo review is therefore appropriate.
B. Analysis
According to Mr. Wiggins, Oregon’s second-degree assault statute is not
divisible between principal and accomplice liability. Thus, if either theory could
result in a conviction for conduct less culpable than a federal crime of violence, he
could not be sentenced as a career offender.
Mr. Wiggins argues that, in 2008, Oregon law permitted convictions for
second-degree assault as an accomplice based on merely negligent conduct, which
would place the statute outside the Guidelines’ definition of a crime of violence. His
source for this interpretation of Oregon law is a statement of accomplice liability that
at one time appeared in Oregon’s pattern jury instructions. The instruction provided
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“that a person who aids and abets in the commission of a crime, in addition to being
criminally responsible for that crime, also is criminally responsible for ‘any act or
other crime’ that was the ‘natural and probable consequence’ of the intended crime.”
State v. Lopez-Minjarez, 260 P.3d 439, 443 (Or. 2011) (quoting Or. Uniform
Criminal Jury Instr. 1051 (2011)).
The Oregon Supreme Court has since held that Oregon law does not permit an
accomplice liability conviction based on mere negligence, but Mr. Wiggins contends
that the pattern jury instruction represents Oregon law at the time he was convicted in
2008. Thus, Mr. Wiggins contends his conviction is not a crime of violence that
could qualify him as a career offender. Because we conclude Oregon had abandoned
that definition of accomplice liability well before Mr. Wiggins’s conviction, we
disagree.
In 2011, the Oregon Supreme Court held that the pattern jury instruction on
which Mr. Wiggins relies “incorrectly advises that a defendant can be criminally
responsible for any other crime that is a natural and probable consequence of a crime
that a defendant aided in committing.” Id. at 447–48. Mr. Wiggins agrees but argues
that a 2011 decision cannot represent what Oregon law permitted at the time of his
2008 conviction.
In Lopez-Minjarez, however, the Oregon Supreme Court did not break any new
ground. See Wade v. Brockamp, 342 P.3d 142, 151 (Or. Ct. App. 2015) (“In Lopez-
Minjarez, the court did not ‘reverse course,’ but instead concluded that the natural
and probable consequence instruction was inconsistent with the statutory language of
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[Or. Rev. Stat. Ann. § 161.155].”). The court simply applied the plain text of
Oregon’s accomplice liability statute to hold that the natural and probable
consequences pattern jury instruction was wrong, even at the time Mr. Wiggins was
convicted. It explained that Oregon law permits accomplice liability “only for the
crime that a defendant intended to promote or facilitate, not for any additional crimes
that might be considered the natural and probable consequences of that crime.”
Lopez-Minjarez, 260 P.3d at 443. But the pattern jury instruction goes beyond that
statement of Oregon law and criminalizes additional conduct. Id. “In effect, the
instruction tells a jury that, once it finds liability based on an aiding and abetting
theory, it can find a defendant guilty of any other crimes that the jury finds to be the
natural and probable consequence of the crime for which there was accomplice
liability.” Id. The Oregon Supreme Court held that the trial court in that case
erroneously provided the natural and probable consequence instruction because it
contradicted the plain text of Oregon’s accomplice liability statute. Id.
The Oregon Supreme Court also emphasized that “[t]he fact that the erroneous
instruction is part of the Uniform Criminal Jury Instructions, of course, is
inconsequential in the analysis.” Id. at 443 n.4. It noted that pattern jury instructions
are not law; they are “a salutary effort on the part of legal practitioners in Oregon to
state the law in a correct way that is helpful to jurors.” Id. Yet, as the court noted,
“that effort does not always succeed.” Id. Indeed, the Oregon Supreme Court held
that the plain text of Oregon’s accomplice liability statute never permitted
convictions based on mere negligence, which the natural and probable consequences
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instruction could allow. Id. at 447; see also Wayne R. LaFave, Foreseeability of other
crimes, 2 Substantive Criminal Law § 13.3(b) (3d ed.) (noting that the “‘natural and
probable consequence’ rule of accomplice liability . . . would permit liability to be
predicated upon negligence even when the crime involved requires a different state of
mind”).
In practice, some courts may have been using the erroneous jury instruction at
the time Mr. Wiggins was convicted in 2008. However, the fact that some defendants
may have been erroneously convicted under the natural and probable consequences
jury instruction in 2008 does not mean that the flawed jury instruction defines what
Oregon law required to convict a defendant as an accomplice at the time of
Mr. Wiggins’s conviction. 2 Precedent instructs us to determine the minimum conduct
that the relevant statutes and associated case law criminalized at the time of
Mr. Wiggins’s conviction, not whether an individual may have been convicted
contrary to that law. See Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013)
(explaining that the first step in determining whether a state statute was a crime of
violence is determining “what the state conviction necessarily involved”); Johnson v.
2 Nor is there anything in the record supporting a conclusion that Mr. Wiggins’s jury was, in fact, given the erroneous instruction. Although the pattern instructions are in the record, the instructions given at Mr. Wiggins’s 2008 trial are not. To be sure, if such an instruction had been given, Mr. Wiggins may have, or have had, a claim for ineffective assistance of counsel. But that would constitute a challenge to his state conviction, which is not relevant to this appeal of his federal sentence after commission of a new crime. United States v. Garcia, 42 F.3d 573, 574 (10th Cir. 1994) (holding that a defendant “cannot collaterally attack a predicate conviction under U.S.S.G. § 4B1.1 in a federal sentencing proceeding”).
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United States, 559 U.S. 133, 138 (2010) (stating that a state’s highest court’s
interpretation of state law binds federal courts for the crime-of-violence inquiry).
Even before Lopez-Minjarez, the Oregon Court of Appeals held that Oregon
law did not permit accomplice liability “predicated on a coconspirator’s commission
of a separate crime to which the defendant is in no way tied, except that the crime
occurred during the course of the common criminal episode.” State v. Anlauf, 995
P.2d 547, 550 (Or. Ct. App. 2000). Although Anlauf did not expressly refer to the
pattern jury instruction Mr. Wiggins invokes, it rejected the notion that “all acts by
any of the conspirators are, ipso facto, natural and probable consequences of the
unlawful combination or undertaking.” Id.
Indeed, after Anlauf, the Oregon Court of Appeals has repeatedly held that the
failure to object to the natural and probable consequences jury instruction constitutes
ineffective assistance of counsel. For example, in Walraven v. Premo, 372 P.3d 1
(Or. Ct. App. 2016), the Oregon Court of Appeals found that “trial counsel’s failure
to object to the ‘natural and probable consequences’ instruction was not a reasonable
exercise of professional skill” in a trial that happened just six months after the
appellate court decided Anlauf. 372 P.3d at 12. The court explained that Anlauf
sufficiently informed the defendant’s trial counsel that Oregon statutes and case law
did not support the theory on which the pattern jury instruction relied—“that a
defendant who participates in one crime is necessarily responsible as an accomplice
for other crimes that were the natural and probable consequences of the intended
predicate crime.” Id.
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The Oregon Court of Appeals reached the same decision in Lizarraga-
Regalado v. Premo, 390 P.3d 1079 (Or. Ct. App. 2017), which also involved a trial
that happened only six months after the Anlauf decision. In Lizarraga-Regalado, the
court specifically rejected the argument that defense counsel would not have known
the natural and probable consequences instruction was erroneous until the Oregon
Supreme Court issued Lopez-Minjarez in 2011. Lizarraga-Regalado, 390 P.3d
at 1084. Rather, the court noted that, after Anlauf, “it was incumbent on counsel to
investigate whether, or to what extent, the ‘natural and probable consequences’
instruction on which the state’s theory depended comported with the existing law of
accomplice liability.” Id. And, as the Court of Appeals explained in another case
reaching the same conclusion, that investigation “would result in discovery of the
Anlauf decision,” which would lead any lawyer exercising reasonable professional
skill and judgment to object to the natural and probable consequences instruction.
Wade, 342 P.3d at 151–52.
Mr. Wiggins asks us to conclude that the natural and probable consequences
jury instruction represented the law in Oregon at the time of his conviction because
some courts were still using it to instruct juries in 2008. But the Oregon Court of
Appeals decisions described above confirm that not only was the instruction
inaccurate, but that, starting in 2000, any lawyer exercising reasonable “professional
skill and judgment” would have discovered that it did not correctly state the mens rea
that Oregon statutes and case law required to prove accomplice liability under
Oregon law. See id. at 151.
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Each of the cases on which Mr. Wiggins relies involved convictions that
happened before the Oregon Court of Appeals decided Anlauf in 2000. See Tristan,
2018 WL 3117637, at *8 (noting the defendant being sentenced pleaded guilty in
1994); Hale v. Belleque, 298 P.3d 596, 618 (Or. Ct. App. 2013) (describing a 1998
trial); State v. Gibson, 448 P.2d 534, 536–37 (Or. 1968). Those cases are
distinguishable because, before Anlauf, courts declined to conclude that a defendant’s
trial counsel was ineffective based on counsel’s failure to object to the natural and
probable consequences jury instruction. As the Oregon Court of Appeals noted in
2015, trial counsel would not have been “alerted to the fact that the instruction was
legally flawed” until the 2000 Anlauf decision. Eklof v. Steward, 359 P.3d 570, 572
n.2 (Or. Ct. App. 2015), rev’d on other grounds, 385 P.3d 1074 (Or. 2016); see also
Lizarraga-Regalado, 390 P.3d at 1084 n.7 (collecting cases involving pre-2000
convictions where the court held trial counsel was not ineffective for failing to object
to the natural and probable consequences pattern jury instruction).
Mr. Wiggins asserts that Hale, one of the cases involving a pre-Anlauf trial,
shows that the natural and probable consequences instruction was “a correct
statement of the law” at the time of Mr. Wiggins’s conviction in 2008. Appellant’s
Br. at 17 (quoting Hale, 298 P.3d at 618). True, Hale referred to a 1968 Oregon
Supreme Court case that described the pattern instruction as “a correct statement of
the law.” Hale, 298 P.3d at 618 (quoting State v. Gibson, 448 P.2d 534, 537 (Or.
1968)). But the Oregon Supreme Court in Gibson did not go so far as to hold that the
instruction correctly described the elements of accomplice liability under Oregon
18 Appellate Case: 25-8002 Document: 48-1 Date Filed: 03/06/2026 Page: 19
law. It held only that when understood in the context of that particular case, “the
instruction was a correct statement of law.” Gibson, 448 P.2d at 537. It also noted
that “[t]he challenged instruction was virtually meaningless” under the specific facts
of the case and did not prejudice the defendant. 3 Id. Nothing in the opinion addresses
whether the pattern jury instruction correctly permitted accomplice liability based on
negligent conduct alone.
When Mr. Wiggins was convicted in 2008, the natural and probable
consequences jury instruction was not a correct statement of Oregon law. It
conflicted with the plain text of Oregon’s accomplice liability statute, and trial
counsel exercising reasonable skill would have discovered this conflict and objected
to the instruction. Accordingly, we are not persuaded that the Oregon assault statute
as correctly interpreted would have permitted a conviction for negligent conduct at
the time of Mr. Wiggins’s Oregon assault conviction. As a result, Mr. Wiggins’s
accomplice liability argument fails to disqualify his second-degree assault conviction
3 There was never any question in Gibson that the defendant was more than merely an accomplice. As the Oregon Supreme Court noted:
The evidence as a whole left little doubt that two predators had followed a chosen victim out of a tavern and had beaten him almost to death. Whether by preconceived design or not, one of them had absconded with the contents of the victim's wallet. If the two defendants were in fact acting in concert, it would make no difference which one actually took the money. State v. Gibson, 448 P.2d 534, 537 (Or. 1968).
19 Appellate Case: 25-8002 Document: 48-1 Date Filed: 03/06/2026 Page: 20
as a crime of violence, irrespective of whether the statute is divisible. And that crime
of violence combined with his prior drug offense qualified him as a career offender.
We therefore need not consider whether Mr. Wiggins’s 2008 first-degree
robbery conviction under Oregon law was also a crime of violence under U.S.S.G.
§ 4B1.1. 4
IV. CONCLUSION
We AFFIRM the district court’s judgment.
Entered for the Court
Carolyn B. McHugh Circuit Judge
4 Because Mr. Wiggins’s argument on appeal is limited to his assertion that he could have been convicted as an accomplice in 2008 on proof of mere negligence, we also need not address his alternative argument that the available documents do not establish the theory under which he was convicted.