Pattern Jury Instructions Do Not Expand “Minimum Conduct” Under the Categorical Approach: Oregon Second-Degree Assault Remains a Guidelines “Crime of Violence” Despite the Discredited “Natural and Probable Consequences” Accomplice Instruction

1. Introduction

Brian Neil Wiggins pleaded guilty in federal court (District of Wyoming) to firearm and drug offenses, including two counts of felon in possession of a firearm and one count of possession with intent to distribute methamphetamine. The district court sentenced him to 192 months, a sentence driven in part by classifying him as a “career offender” under U.S.S.G. § 4B1.1.

Career-offender status required two prior qualifying felonies: a “controlled substance offense” or a “crime of violence.” Mr. Wiggins did not dispute one qualifying controlled substance conviction. The dispute centered on whether his 2008 Oregon conviction for second-degree assault (Or. Rev. Stat. § 163.175) qualified as a “crime of violence.” On appeal, Mr. Wiggins narrowed his challenge to a single theory: that Oregon accomplice liability, as allegedly reflected in a pattern “natural and probable consequences” jury instruction still in use around 2008, allowed conviction based on negligence—too low a mens rea to satisfy the Guidelines’ “crime of violence” definition.

2. Summary of the Opinion

The Tenth Circuit affirmed. Even accepting the framing of the defendant’s argument (that Oregon trial courts sometimes used a flawed “natural and probable consequences” accomplice instruction), the court held that this did not establish the “minimum conduct” criminalized by Oregon law in 2008 for categorical-approach purposes. The Oregon Supreme Court’s decision in State v. Lopez-Minjarez (2011) did not “change” Oregon law; it applied the statutory text and confirmed that the pattern instruction was incorrect. Moreover, Oregon appellate decisions—especially State v. Anlauf (2000) and the later ineffective-assistance cases (Wade v. Brockamp, Walraven v. Premo, Lizarraga-Regalado v. Premo)—showed that Oregon had abandoned the “natural and probable consequences” theory well before 2008.

Because the defendant’s sole appellate basis for excluding Oregon second-degree assault failed, the court upheld the career-offender enhancement without reaching whether Oregon first-degree robbery was also a “crime of violence.”

3. Analysis

A. Precedents Cited (and How They Shaped the Result)

1) Federal categorical-approach architecture

• United States v. Devereaux (10th Cir. 2024): Supplied the opinion’s vocabulary and structure—“elements clause” vs. “enumerated clause,” the categorical approach, and use of the modified categorical approach when a statute is divisible. It also framed the appellate standard for reviewing crime-of-violence determinations.
• United States v. Sanchez (10th Cir. 2021) (quoting Borden v. United States (2021)): Reinforced that if “any—even the least culpable—of the acts criminalized” fall outside the federal definition, the statute does not categorically qualify. This is the analytic doorway through which Mr. Wiggins attempted to import negligent accomplice liability.
• Descamps v. United States (2013): Provided the statement of the “modified categorical approach” and the limited class of documents courts may consult when a statute lists elements in the alternative. While divisibility was discussed below, the panel ultimately resolved the appeal on a narrower ground (the asserted negligent-accomplice “minimum conduct” premise was not Oregon law in 2008).
• Moncrieffe v. Holder (2013): Used to emphasize that categorical analysis asks what the conviction “necessarily involved,” not what might have happened in a particular case or what an erroneous instruction might have permitted in some trials.
• Johnson v. United States (2010): Invoked for the principle that a state’s highest court’s interpretation of state law binds federal courts in the crime-of-violence inquiry—undercutting the idea that a non-authoritative pattern instruction could define state law’s minimum conduct.

2) Mens rea and “crime of violence” boundaries

• Borden v. United States (2021): While not directly deciding this case, it supplied the modern mens rea baseline in federal violent-felony/violent-crime analysis (recklessness and below generally failing in certain “use of force” contexts). Mr. Wiggins’s theory depended on pushing Oregon accomplice liability down to negligence.
• United States v. Sjodin (1 0th Cir. 2025): Cited in a footnote for the proposition that an assault statute spanning too broadly across the culpability spectrum can fail the crime-of-violence test, reflecting the circuit’s sensitivity to mens rea breadth after Borden. The panel, however, declined to reach other mens rea questions about Oregon “knowingly” and focused only on the accomplice-negligence claim.
• State v. Barnes (Or. 1999), overruled in part by State v. Owen (Or. 2022): Mentioned in a footnote to flag an unresolved issue about whether Oregon’s definition of “knowingly” for assault requires mens rea as to result. The panel expressly left that question “for another day,” narrowing the precedential implications to the accomplice-liability theory advanced on appeal.

3) Oregon accomplice liability and the “natural and probable consequences” instruction

• State v. Lopez-Minjarez (Or. 2011): Central state-law authority. The Oregon Supreme Court held the pattern “natural and probable consequence” instruction “incorrectly advises” on Oregon accomplice liability and emphasized that the instruction’s inclusion in uniform jury instructions was “inconsequential.” The Tenth Circuit treated Lopez-Minjarez as confirming the meaning of the accomplice-liability statute, not changing it.
• State v. Anlauf (Or. Ct. App. 2000): The key temporal anchor. The Tenth Circuit relied on Anlauf to show Oregon appellate law had already rejected a broad, foreseeability-like accomplice theory long before 2008.
• Wade v. Brockamp (Or. Ct. App. 2015), Walraven v. Premo (Or. Ct. App. 2016), Lizarraga-Regalado v. Premo (Or. Ct. App. 2017): These post-2011 decisions were used not for hindsight but to demonstrate that Oregon courts understood Anlauf as having already put competent counsel on notice that the pattern instruction was legally wrong. That reasoning supported the federal panel’s conclusion that the erroneous pattern instruction did not describe Oregon law in 2008.
• Eklof v. Steward (Or. Ct. App. 2015), rev'd on other grounds, 385 P.3d 1074 (Or. 2016): Cited for the proposition that Anlauf “alerted” counsel to the instruction’s flaw—again reinforcing that the instruction did not define Oregon law after 2000.
• State v. Gibson (Or. 1968) and Hale v. Belleque (Or. Ct. App. 2013): Mr. Wiggins leaned on language describing the instruction as “a correct statement of the law.” The Tenth Circuit distinguished Gibson as fact-bound and not actually endorsing negligence-based accomplice liability; it also noted that the cases Mr. Wiggins relied on involved pre-Anlauf convictions.
• Tristan v. United States (D. Or. June 25, 2018): The district-court decision Mr. Wiggins used to argue that Oregon second-degree assault is not a crime of violence because accomplice liability (pre-2011) could rest on negligent “natural and probable consequences.” The Tenth Circuit effectively limited Tristan to its historical context (including its reliance on pre-2000 cases) and did not accept its implication that the pattern instruction defined Oregon law in 2008.
• Wayne R. LaFave, Foreseeability of other crimes, 2 Substantive Criminal Law § 13.3(b) (3d ed.): Used to explain doctrinally why the “natural and probable consequences” rule is problematic—it resembles negligence/foreseeability and can decouple accomplice liability from the target offense’s mens rea.

4) Preservation/standard-of-review authorities

• United States v. Ruiz-Gea (10th Cir. 2023) and United States v. Taylor (10th Cir. 2008): Cited for forfeiture/plain-error principles; the government argued these should apply.
• United States v. Hernandez-Rodriguez (10th Cir. 2003): Supported the court’s conclusion that the district court had a fair opportunity to address the accomplice-liability issue (through the defendant’s reliance on Tristan), justifying de novo review.
• Day v. SkyWest Airlines (10th Cir. 2022): Used to cabin the appeal: because Mr. Wiggins did not press the “knowingly” mens rea issue on appeal, the panel did not address it.

5) Collateral attack limitation

• United States v. Garcia (10th Cir. 1994): Used to clarify that even if Mr. Wiggins’s state trial had used an erroneous instruction, the federal sentencing proceeding is not the vehicle to collaterally attack the predicate conviction under § 4B1.1.

B. Legal Reasoning

1) The panel’s narrowing move: deciding only what it had to decide

Although the briefing addressed divisibility (subsections (a)–(c) vs. principal/accomplice), the panel chose a narrower path. It held that Mr. Wiggins’s appeal “prevails or fails” based on one proposition: whether in 2008 Oregon law allowed accomplice liability for second-degree assault based on mere negligence via the “natural and probable consequences” instruction. Resolving that state-law premise against Mr. Wiggins ended the case without deciding:

• whether Or. Rev. Stat. § 163.175 is divisible in any relevant way;
• whether Oregon “knowingly” is sufficiently culpable as to result for crime-of-violence purposes; or
• whether Oregon first-degree robbery is a crime of violence.

2) “Minimum conduct” is set by law, not by mistaken practice

The heart of the reasoning is a distinction between (i) what Oregon law is (statutory text plus authoritative judicial interpretation) and (ii) what some trial courts might have done (including giving a mistaken uniform jury instruction). The panel treated Lopez-Minjarez as confirming that the “natural and probable consequences” instruction conflicted with the accomplice-liability statute’s text and was therefore wrong “even at the time” Mr. Wiggins was convicted.

3) Time-stamping: why 2011 did not “change” Oregon law for 2008

Mr. Wiggins’s strongest rhetorical point was temporal: he was convicted in 2008, and Lopez-Minjarez was decided in 2011. The panel rejected the implied “no retroactivity” framing by leaning on Oregon intermediate appellate authority and later postconviction decisions (e.g., Wade, Walraven, Lizarraga-Regalado) that identified State v. Anlauf (2000) as the moment competent counsel should have known the pattern instruction was flawed. This supported a conclusion that Oregon had already abandoned the theory well before 2008.

4) The categorical-approach discipline: “necessarily involved” vs. “might have happened”

Even assuming some courts continued using the pattern instruction, the panel held that does not establish that Oregon law criminalized negligence-based accomplice liability. Under Moncrieffe v. Holder, the question is what the conviction “necessarily involved,” not whether some defendants could have been convicted under erroneous instructions. Under Johnson v. United States, state high-court interpretations bind; pattern instructions do not.

5) Practical constraint: missing jury instructions and non-collateral review

The court also emphasized record and procedural posture: the actual 2008 instructions were not in the record. And even if they had been, using the federal sentencing appeal to attack the validity of the state conviction is barred by United States v. Garcia. Thus, the inquiry remained purely legal: what did Oregon law require, not what happened at one trial.

C. Impact

1) On Guidelines career-offender litigation

The decision strengthens (at least as persuasive authority) a recurring government position in categorical-approach litigation: defendants cannot establish “overbreadth” by pointing to erroneous pattern jury instructions or trial-level misunderstandings untethered from authoritative state law. The “least culpable conduct” analysis remains a law-based inquiry, not an audit of historical trial practices.

2) On state-law “uncertainty” arguments

Defendants sometimes argue that if a pattern instruction existed and was used, it must reflect the statute’s sweep. United States v. Wiggins pushes back: even widespread instructional error does not define the elements or minimum culpability when appellate decisions and statutory text point the other way.

3) On Oregon-assault predicates specifically

The panel did not decide all possible challenges to Or. Rev. Stat. § 163.175 (it expressly left open the “knowingly”/result-mens-rea question). Still, it removes—at least within the Tenth Circuit’s persuasive landscape—one significant line of attack: that pre-2011 Oregon accomplice liability for second-degree assault could rest on negligence due to the “natural and probable consequences” instruction.

4. Complex Concepts Simplified

• Career offender (U.S.S.G. § 4B1.1): A Guidelines enhancement that substantially increases the advisory sentencing range if the defendant has (among other criteria) two prior qualifying felonies—either “crimes of violence” or “controlled substance offenses.”
• Crime of violence (U.S.S.G. § 4B1.2): Defined either by the elements clause (the offense has as an element the use/attempt/threat of physical force) or by the enumerated clause (the offense matches a listed crime such as aggravated assault).
• Categorical approach: The court looks only to the legal elements of the prior offense (not what the defendant actually did). If the statute covers any conduct that would not meet the federal definition, the conviction does not qualify.
• Divisible statute & modified categorical approach: If a statute lists alternative elements that create different crimes (not just alternative facts), a court may consult a limited set of documents (e.g., indictment, jury instructions, plea colloquy) to determine which alternative formed the basis of the conviction.
• Mens rea (mental state): The culpability required—intentional, knowing, reckless, negligent. Modern “crime of violence” doctrine (especially post-Borden v. United States) is sensitive to whether the predicate can be committed with too low a mental state.
• Accomplice liability & “natural and probable consequences”: Accomplice liability makes someone responsible for a crime they intentionally helped another commit. The “natural and probable consequences” theory (rejected in Oregon) would expand that responsibility to other foreseeable crimes—effectively resembling negligence/foreseeability rather than intent.

5. Conclusion

United States v. Wiggins affirms a career-offender sentence by rejecting a defendant’s attempt to define Oregon law’s “minimum conduct” through an erroneous pattern jury instruction on accomplice liability. The Tenth Circuit treated authoritative Oregon law—statutory text and appellate interpretation, especially State v. Anlauf and State v. Lopez-Minjarez—as controlling, concluding that Oregon did not permit negligence-based accomplice liability for second-degree assault in 2008. The result reinforces a key categorical-approach principle: “overbreadth” must be grounded in what the law requires, not what mistaken instructions may have allowed in practice.