United States v. Rogelio Sanchez Molinar ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10430
Plaintiff-Appellee,
D.C. No.
v. 4:14-cr-01069-
JAS-BGM-1
ROGELIO SANCHEZ MOLINAR,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted September 14, 2016
Resubmitted November 29, 2017
San Francisco, California
Filed November 29, 2017
Before: William A. Fletcher, Morgan B. Christen,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Friedland;
Dissent by Judge W. Fletcher
2 UNITED STATES V. MOLINAR
SUMMARY *
Criminal Law
The panel affirmed the district court’s imposition of a
sentencing enhancement based on the defendant’s prior
Arizona conviction for attempted armed robbery, which the
district court treated as a “crime of violence” under the U.S.
Sentencing Guidelines.
The panel wrote that this court’s conclusion in United
States v. Taylor, 529 F.3d 1232 (9th Cir. 2008), that Arizona
armed robbery is a crime of violence under USSG § 4B1.2’s
force clause, is clearly irreconcilable with the Supreme
Court’s decision in Johnson v. United States, 559 U.S. 133(2010), and has therefore been effectively overruled. The
panel concluded that Arizona armed robbery can no longer
be considered a categorical crime of violence under Section
4B1.2’s force clause.
The panel held that Arizona robbery (and thus armed
robbery) is a categorical match to generic robbery, and that
Arizona attempt is equivalent to generic attempt, so the
defendant’s conviction does constitute a crime of violence
under Section 4B1.2’s enumerated felonies clause.
Dissenting, Judge Fletcher wrote that under the plain-
meaning understanding of “immediate danger to the person,”
the circumstances in State v. Moore, 2014 WL 4103951(Ariz. Ct. App.), did not involve such danger, and that
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. MOLINAR 3
Arizona’s definition of robbery is therefore broader than the
generic definition and is not a categorical match to generic
robbery.
COUNSEL
J. Ryan Moore (argued), Assistant Federal Public Defender;
Jon M. Sands, Federal Public Defender; Office of the
Federal Public Defender, Tucson, Arizona; for Defendant-
Appellant.
Robert Lally Miskell (argued), Appellate Chief; United
States Attorney’s Office, Tucson, Arizona; for Plaintiff-
Appellee.
OPINION
FRIEDLAND, Circuit Judge:
Rogelio Sanchez Molinar challenges the district court’s
imposition of a sentencing enhancement based on his prior
Arizona conviction for attempted armed robbery, which the
court treated as a “crime of violence” under the U.S.
Sentencing Guidelines Manual (“USSG” or “Guidelines”).
We previously decided in United States v. Taylor, 529 F.3d
1232 (9th Cir. 2008), that Arizona attempted armed robbery
should be considered a crime of violence under the relevant
Guidelines provision. Id. at 1238. But we must now
reexamine that holding in light of the Supreme Court’s
decision in Johnson v. United States, 559 U.S. 133 (2010),
which construed a similarly worded crime-of-violence
provision in the Armed Career Criminal Act (“ACCA”). Id.
at 140. Although Johnson does require us to depart from
4 UNITED STATES V. MOLINAR
some of our analysis in Taylor, we conclude that Arizona
attempted armed robbery nonetheless qualifies as a crime of
violence for reasons other than those relied upon in Taylor.
Accordingly, we affirm. 1
I. BACKGROUND
Molinar pled guilty to federal charges for being a felon
in possession of ammunition. Among other prior felonies,
Molinar had previously been convicted of attempted armed
robbery under Arizona law.
In sentencing Molinar for the ammunition convictions,
the district court applied the firearms guideline, which
included an enhancement if “the defendant committed any
part of the instant offense subsequent to sustaining one
felony conviction of . . . a crime of violence.” U.S.
SENTENCING GUIDELINES MANUAL § 2K2.1(a)(4)(A) (U.S.
SENTENCING COMM’N 2014). 2 The guideline defined “crime
of violence” by cross-referencing Section 4B1.2(a) and
Application Note 1 of the Commentary to Section 4B1.2.
USSG § 2K2.1 cmt. n.1. At the time, Section 4B1.2(a) read
as follows:
(a) The term “crime of violence” means any
offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that—
1
We resolve Molinar’s other challenges to his sentence in a
concurrently filed memorandum disposition.
2
The 2014 version of the Guidelines was in effect at the time of
Molinar’s sentencing. Accordingly, all references to the Guidelines are
to the 2014 version unless otherwise stated.
UNITED STATES V. MOLINAR 5
(1) has as an element the use, attempted
use, or threatened use of physical
force against the person of another
[known as the “force clause” or the
“elements clause”], or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives
[known as the “enumerated felonies
clause”], or otherwise involves
conduct that presents a serious
potential risk of physical injury to
another [known as the “residual
clause”].
Id. § 4B1.2(a).
Application Note 1 to Section 4B1.2 (“Note 1”) stated
that “‘[c]rime of violence’ includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of credit,
and burglary of a dwelling,” as well as “attempting to
commit” a crime of violence. USSG § 4B1.2 cmt. n.1.
The district court held that Molinar’s prior Arizona
conviction for attempted armed robbery qualified as a crime
of violence, triggering the enhancement in Section
2K2.1(a)(4)(A). The resulting sentencing range was 46 to
57 months, and the district court imposed a sentence of
44 months. Without the crime of violence enhancement,
Molinar’s sentencing range would have been 27 to
33 months.
Molinar appealed, arguing that the district court erred in
treating his Arizona conviction as a crime of violence.
6 UNITED STATES V. MOLINAR
II. ANALYSIS
We use the categorical approach to determine whether a
state crime qualifies as a crime of violence for Guidelines
purposes. See United States v. Rendon-Duarte, 490 F.3d
1142, 1146 (9th Cir. 2007). Under that approach, we look
“only to the fact of conviction and the statutory definition of
the prior offense,” not to the defendant’s actions underlying
the conviction. United States v. Gomez-Hernandez,
680 F.3d 1171, 1174 (9th Cir. 2012) (quoting United States
v. Espinoza-Cano, 456 F.3d 1126, 1131 (9th Cir. 2006)).
“State cases that examine the outer contours of the conduct
criminalized by the state statute are particularly important
because ‘we must presume that the conviction rested upon
[nothing] more than the least of th[e] acts criminalized.’”
United States v. Strickland, 860 F.3d 1224, 1226–27 (9th
Cir. 2017) (alterations in original) (quoting Moncrieffe v.
Holder, 133 S. Ct. 1678, 1684 (2013)). Applying the
categorical approach here, we conclude that Arizona
attempted armed robbery is a crime of violence, but for
reasons different than those we relied upon in United States
v. Taylor, 529 F.3d 1232 (9th Cir. 2008).
A. Effect of Johnson on Taylor’s
“Crime of Violence” Holding
We held in Taylor that Arizona attempted armed robbery
was a crime of violence for Guidelines purposes. Id. at
1237–38. Based solely on the text of Arizona’s armed
robbery statute, we concluded that “[a]rmed robbery under
Arizona law involves the threat or use of force; therefore,
that offense is a crime of violence pursuant to” the force
clause of Section 4B1.2(a)(1). Id. at 1237. Molinar contends
that the Supreme Court’s intervening decision in Johnson v.
United States, 559 U.S. 133 (2010), is clearly irreconcilable
with our crime of violence holding in Taylor and urges us to
UNITED STATES V. MOLINAR 7
treat Taylor as “effectively overruled.” See Miller v.
Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc).
We thus evaluate whether Taylor’s determination that
Arizona attempted armed robbery is a crime of violence
under Section 4B1.2’s force clause survived Johnson. We
hold that it did not.
The Supreme Court in Johnson analyzed the ACCA’s
“violent felony” definition. The Court evaluated whether the
term “physical force” in that definition was synonymous
with the understanding of “force” under the common law
and held that it was not. For common-law battery, the force
element is “satisfied by even the slightest offensive
touching.” See Johnson, 559 U.S. at 138–41. By contrast,
the Court “th[ought] it clear that in the context of a statutory
definition of ‘violent felony,’ the phrase ‘physical force’
means violent force—that is, force capable of causing
physical pain or injury to another person.” Id. at 140; see
also id. (discussing similar conclusion reached in Leocal v.
Ashcroft, 543 U.S. 1 (2004), about the statutory definition of
“crime of violence” in 18 U.S.C. § 16).
We have applied Johnson’s definition of force in
analyzing whether an offense constitutes a crime of violence
under the force clause of Section 4B1.2 of the Guidelines.3
3
Recent Supreme Court decisions striking down the ACCA’s
residual clause, see Johnson v. United States, 135 S. Ct. 2551, 2557
(2015), but upholding the Guidelines’ residual clause, see Beckles v.
United States, 137 S. Ct. 886, 892 (2017), together with an amendment
to the Guidelines’ enumerated felonies clause, see infra section II.B.1,
have resulted in material differences between the two definitions that
will likely limit our ability to treat the two as interchangeable in future
cases. Those differences are not relevant to Molinar’s arguments about
whether Taylor remains good law after Johnson, however, because the
force clauses in the ACCA and the Guidelines remain identical.
8 UNITED STATES V. MOLINAR
United States v. Tucker, 641 F.3d 1110, 1117, 1124 (9th Cir.
2011); accord Johnson, 559 U.S. at 140 (discussing “crime
of violence” and “violent felony” as equivalent terms).
Thus, to qualify as a crime of violence under the force clause,
an offense under state law—as interpreted by that state’s
courts—must punish only conduct involving violent force as
defined in Johnson.
In light of Johnson, we must assess whether Arizona
courts apply the armed robbery statute to punish conduct that
does not involve violent force. Arizona’s armed robbery
statute provides:
A person commits armed robbery if, in the
course of committing robbery as defined in
§ 13-1902, such person or an accomplice:
1. Is armed with a deadly weapon or a
simulated deadly weapon; or
2. Uses or threatens to use a deadly
weapon or dangerous instrument or a
simulated deadly weapon.
Ariz. Rev. Stat. § 13-1904(A). On its face, this statute does
not require that the robber actually use or even threaten to
use a weapon. Arizona courts have not imposed further
requirements. See State v. Snider, 311 P.3d 656, 659 (Ariz.
Ct. App. 2013) (“[Section] 13-1904(A)(1) does not require
the use or threatened use of the weapon, only that a
defendant is ‘armed with a deadly weapon’ during the
commission of the crime.”). Thus, merely possessing a fake
gun during the commission of a robbery, even without
mentioning it or brandishing it, would constitute armed
robbery in Arizona.
UNITED STATES V. MOLINAR 9
Under the categorical approach, “we must presume that
[Molinar’s] conviction rested upon [nothing] more than the
least of th[e] acts criminalized.” Strickland, 860 F.3d at
1226-27 (second and third alterations in original) (quoting
Moncrieffe, 133 S. Ct. at 1684). Because merely possessing
a fake gun during a robbery is no more violent within the
meaning of Johnson than robbery itself, armed robbery is
indistinguishable from robbery for the purposes of the
categorical analysis under the force clause. See United
States v. Parnell, 818 F.3d 974, 978–80 (9th Cir. 2016). Our
analysis therefore turns on whether Arizona robbery
involves sufficient force under Johnson.
Arizona’s robbery statute provides that “[a] person
commits robbery if in the course of taking any property of
another from his person or immediate presence and against
his will, such person threatens or uses force against any
person with intent either to coerce surrender of property or
to prevent resistance to such person taking or retaining
property.” Ariz. Rev. Stat. § 13-1902(A). The statute
defines “force” as “any physical act directed against a person
as a means of gaining control of property.” Ariz. Rev. Stat.
§ 13-1901(1). This broad statutory definition of “force” has
not been narrowed by Arizona courts, other than by
clarifying that the force must be “intended to overpower the
party robbed.” State v. Bishop, 698 P.2d 1240, 1243 (Ariz.
1985); see also State v. Garza Rodriguez, 791 P.2d 633, 637
(Ariz. 1990).
Arizona courts have not required this “overpowering”
force to be violent in the sense discussed by the Supreme
Court in Johnson. In Lear v. State, 6 P.2d 426 (Ariz. 1931),
a foundational robbery case, the Arizona Supreme Court
held that simply snatching an article from a person’s hand or
“surreptitiously tak[ing] from another’s pocket” is not
10 UNITED STATES V. MOLINAR
robbery. 4 Id. at 427 (quoting State v. Parsons, 87 P. 349,
350 (Wash. 1906)). But the court observed that “if the article
is so attached to the person or clothes as to create resistance
however slight,” the offense becomes robbery. Id. (quoting
JOEL PRENTISS BISHOP, 2 BISHOP ON CRIMINAL LAW 864
§ 1167 (John M. Zane & Carl Zollmann, eds., 9th ed. 1923));
see also id. (“The snatching [of] a thing is not considered a
taking by force, but if there be a struggle to keep it, . . . the
taking is robbery . . . .” (quoting FRANCIS WHARTON, 2 A
TREATISE ON CRIMINAL LAW 1297 § 1089 (11th ed. 1912)).
Consistent with Lear’s analysis of force, in State v.
Moore, No. 1 CA-CR 13-0649, 2014 WL 4103951 (Ariz. Ct.
App. Aug. 14, 2014) (unpublished), the Arizona Court of
Appeals affirmed a robbery conviction that involved only a
minor struggle. In that case, the defendant reached through
a car window to grab the wallet of the driver, who was an
undercover police officer. Id. at *1. “The officer resisted
and tightened his grip on the wallet, but [the defendant]
wrested control of it away from him. As a result of what the
officer called a ‘struggle,’ the officer’s arm ‘flew back.’” Id.
The officer testified that the defendant had to “yank” and
“pull” to take the wallet from his hand. Id. at *2. Citing
Lear, the Arizona Court of Appeals held that “although the
force [the defendant] used was not extreme or particularly
violent, it was sufficient to constitute a ‘physical act directed
against [the officer] as a means of gaining control of [the
wallet].’” Id. (second and third alterations in original)
(quoting Ariz. Rev. Stat. § 13-1901(1) and citing Bauer v.
4
Although Lear interpreted an earlier version of Arizona’s robbery
statute, Arizona courts continue to rely on Lear’s analysis of the force
required for robbery when interpreting the current statute. See, e.g.,
Bishop, 698 P.2d at 1243; State v. Rodriguez, 609 P.2d 589, 590 (Ariz.
Ct. App. 1980).
UNITED STATES V. MOLINAR 11
State, 43 P.2d 203, 205 (1935) (“[E]ven though the snatching
of a thing is not looked upon as a taking by force, it is
otherwise where there is a struggle to keep it.”)).
It is clear from these cases that Arizona punishes as
robbery conduct that does not involve violent force. The
level of force involved in grabbing the wallet in Moore,
where the victim was not harmed, is similar to the level of
force we have considered insufficiently violent to qualify as
force under Johnson. In United States v. Dominguez-
Maroyoqui, 748 F.3d 918 (9th Cir. 2014), for example, we
explained that bumping into or jolting someone, grabbing a
jacket, or spitting in a victim’s face did not rise to the
Johnson level of violent force. Id. at 921. Similarly, in
United States v. Flores-Cordero, 723 F.3d 1085 (9th Cir.
2013), we held that a “minor scuffle” during which a
defendant jerked her arms, kicked, and struggled to keep
officers from placing her arms behind her back during an
arrest was not Johnson-level violent force. Id. at 1087–88
(citing State v. Lee, 176 P.3d 712 (Ariz. Ct. App. 2008)).
Under these precedents, a conviction for robbery—or armed
robbery—in Arizona does not require the threat or use of
Johnson-level force.
As a result, our conclusion in Taylor that Arizona armed
robbery is a crime of violence under Section 4B1.2’s force
clause, see 529 F.3d at 1237, is clearly irreconcilable with
the Supreme Court’s decision in Johnson. We therefore treat
this part of Taylor “as having been effectively overruled.”
See Miller, 335 F.3d at 900. And we hold that Arizona
armed robbery can no longer be considered a categorical
crime of violence under Section 4B1.2’s force clause.
12 UNITED STATES V. MOLINAR
B. Enumerated Crimes of Violence
Under the Guidelines
Having concluded that Arizona armed robbery is not a
crime of violence under Section 4B1.2’s force clause, we
now turn to whether it qualifies as a crime of violence under
a different clause. At the time Molinar was sentenced,
robbery was enumerated in the commentary to Section
4B1.2. We have held that robbery is an enumerated crime
of violence. See United States v. Barragan, 871 F.3d 689,
713–14 (9th Cir. 2017) (citing the commentary to Section
4B1.2). We must now determine whether a conviction for
robbery under Arizona law is equivalent to generic robbery,
such that Arizona Robbery is a crime of violence under the
enumerated felonies clause. We conclude that Arizona
Robbery (and thus armed robbery) is a categorical match to
generic robbery, and that Arizona attempt is equivalent to
generic attempt, so Molinar’s conviction does constitute a
crime of violence for purposes of Section 4B1.2.
Under the categorical approach, when an offense is
enumerated, we “compare the elements of the statute
forming the basis of the defendant’s conviction with the
elements of the ‘generic’ crime—i.e., the offense as
commonly understood.” Descamps v. United States, 133 S.
Ct. 2276, 2281 (2013). The state crime is a match only if its
“elements are the same as, or narrower than, those of the
generic offense.” Id.We have defined generic robbery as “aggravated larceny,
containing at least the elements of misappropriation of
property under circumstances involving immediate danger
to the person.” United States v. Becerril-Lopez, 541 F.3d
881, 891 (9th Cir. 2008) (quoting United States v.
Santiesteban-Hernandez, 469 F.3d 376, 380 (5th Cir. 2006),
abrogated on other grounds by United States v. Rodriguez,
UNITED STATES V. MOLINAR 13
711 F.3d 541 (5th Cir. 2013) (en banc)); see also United
States v. House, 825 F.3d 381, 387 (8th Cir. 2016) (adopting
same generic definition). We have not previously examined
the meaning of “immediate danger to the person” in depth,
so we must do so now.
Our precedent dictates that in interpreting generic
definitions of common-law crimes such as robbery, we adopt
the “contemporary meaning employed by most states,
guided by scholarly commentary.” See United States v.
Esparza-Herrera, 557 F.3d 1019, 1023 (9th Cir. 2009)
(quoting United States v. Gomez-Leon, 545 F.3d 777, 790
(9th Cir. 2008)). The majority of states implement the notion
of immediate danger to the person by “requir[ing] property
to be taken from a person or a person’s presence by means
of force or putting in fear.” 5 See Santiesteban-Hernandez,
469 F.3d at 380 (collecting state statutes and citing WAYNE
R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 20.3 (2d ed.
2003)). Thus, we hold that for a state crime to be equivalent
to generic robbery, it must require property to be taken from
a person or a person’s presence by means of force or putting
in fear. 6
5
The minority approach, also reflected in the Model Penal Code,
requires bodily injury or the threat of or putting in fear of bodily injury.
Santiesteban-Hernandez, 469 F.3d at 380; see MODEL PENAL CODE
§ 222.1.
6
The dissent contends that we are abandoning Becerril-Lopez. We
are not. Becerril-Lopez did not define “immediate danger” but used that
phrase in describing the elements of generic robbery. Indeed, beyond
stating that threats to a person’s property do not suffice to constitute an
immediate danger to the person, Becerril-Lopez said nothing else about
how much danger to the person is required. See 541 F.3d at 891. We
accordingly endeavor here to determine how much immediate danger
generic robbery requires. As explained, the majority of states, and
accordingly the scholarly commentary, treat the level of danger involved
14 UNITED STATES V. MOLINAR
As to how much force is needed to comport with this
definition, we have held that force sufficient “to compel
acquiescence to the taking of or escaping with the property”
satisfies the generic definition of robbery, regardless of what
degree of force that is in a particular instance. United States
v. Harris, 572 F.3d 1065, 1066 (9th Cir. 2009) (quoting Nev.
Rev. Stat. § 200.380) (holding that a statute stating “[t]he
degree of force used is immaterial if it is used to compel
acquiescence to the taking of or escaping with the property”
in jostling a victim as sufficient to satisfy the requirements of robbery.
See WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 20.3 (2d ed.
2003); see also CHARLES E. TORCIA, 4 WHARTON’S CRIMINAL LAW
§ 464 (15th ed.). The dissent thinks that our recognition of this fact
means we are contradicting Becerril-Lopez by defying the plain meaning
of the phrase “immediate danger.” But our task here, as it was in
Becerril-Lopez, is to understand the requirements for generic robbery,
not to define in the abstract words that have been used to describe the
elements of generic robbery. Authoritative sources surveying state
definitions of generic robbery indicate that it requires very little danger.
The dissent also cites United States v. Tellez-Martinez, 517 F.3d 813(5th Cir. 2008), to argue that we have required a stronger showing of
immediate danger than the Fifth Circuit has. In Tellez-Martinez, the
Fifth Circuit interpreted the California robbery statute at issue in
Becerril-Lopez and concluded that California robbery is a categorical
match to generic robbery. Id. at 815. Specifically, the Fifth Circuit
reasoned that the California robbery statute required an immediate
danger to the person because “danger is inherent in the criminal act. . . .
even when the statue is violated by placing the victim in fear of injury to
property.” Id. In Becerril-Lopez, we disagreed with this interpretation
of California robbery, noting that the statute “does not imply any force
or threat of force against the person” and therefore does not require an
immediate danger to the person. 541 F.3d at 891 n.8. That we and the
Fifth Circuit disagree on what is outlawed by the California robbery
statute in no way suggests a disagreement on the definition of generic
robbery, or how much immediate danger to the person it requires.
UNITED STATES V. MOLINAR 15
satisfied the generic definition of robbery). 7 This accords
with the definition of robbery in a majority of states, which
require no more force than the jostling of the victim. 8 See
LAFAVE, supra, at § 20.3(d)(1) (explaining that
pickpocketing or sudden snatching of a purse where the
victim does not have the chance to resist is not robbery, but
if the victim struggles for control of the purse or if the robber
“jostles” or renders the victim “helpless by more subtle
means,” then the force is sufficient for robbery); CHARLES
E. TORCIA, 4 WHARTON’S CRIMINAL LAW § 464 (15th ed.)
(“It is likewise robbery to pick a person’s pocket while
scuffling with him, or while jostling, pushing, or crowding
7
The dissent points out that Harris is a two-paragraph per curiam
opinion, but our published opinions are precedential regardless of length
or authorship. See Miller, 335 F.3d at 899. The dissent also argues
Harris did not contain “a holding with respect to the degree of force
required for generic robbery.” But as the dissent notes, Harris stated that
the Nevada robbery statute at issue was not distinguishable from the
California robbery statute analyzed in Becerril Lopez on the grounds that
the Nevada statute stated that “[t]he degree of force used is immaterial if
it is used to compel acquiescence to the taking of or escaping with the
property.” Harris, 572 F.3d at 1066. And Harris held that, even with
this phrase, the Nevada statute was a crime of violence because it was a
match for either generic robbery or generic extortion. Id. This was as
much a holding as any other because it was necessary to the disposition
of the case.
8
See, e.g., Commonwealth v. Zangari, 677 N.E.2d 702, 703 (Mass.
App. Ct. 1997) (“[W]here the snatching or sudden taking of property
from a victim is sufficient to produce awareness, there is sufficient
evidence of force to permit a finding of robbery.” (quoting
Commonwealth v. Davis, 385 N.E.2d 278, 279 (Mass. App. Ct. 1979));
Thomas v. State, 737 A.2d 622, 639 (Md. Ct. Spec. App. 1999)
(affirming conviction for attempted robbery where officer “felt a tugging
on his holster” and “was required to use force to prevent appellant from
taking the gun.”); People v. Davis, 935 P.2d 79, 84-85 (Colo. App. 1996)
(“[R]obbery includes the snatching of an object attached to the person of
another if force is used to tear or break the attachment”).
16 UNITED STATES V. MOLINAR
him.” (footnotes omitted)). There is no indication that the
Supreme Court’s definition of “violent force” in Johnson—
a product of specific statutory interpretation—should apply
to the understanding of “force” in the definition of generic
robbery. See United States v. Mendoza-Padilla, 833 F.3d
1156, 1158–59 (9th Cir. 2016) (analyzing elements of an
enumerated offense without discussing Johnson). Indeed,
enumerated offenses are crimes of violence even when their
elements do not include the threat or use of violent force; this
must be so, or the enumerated felonies clause would be
surplusage. See United States v. Pereira-Salmeron, 337 F.3d
1148, 1152 (9th Cir. 2003).
As to the meaning of “fear” within the generic definition,
a leading treatise teaches:
[T]he word ‘fear’ in connection with robbery
does not so much mean ‘fright’ as it means
‘apprehension’; one too brave to be
frightened may yet be apprehensive of bodily
harm. The victim who is not apprehensive of
harm from the robber so long as he does what
the robber tells him to do, though he does
expect harm if he refuses, is nevertheless ‘put
in fear’ for purposes of robbery.
LAFAVE, supra, at § 20.3(d)(2) (footnotes omitted); accord
TORCIA, supra, at § 462. Thus, “actual fright by the victim,
without regard to the defendant’s behavior calculated to
produce such a reaction, is [not] alone determinative.”
LAFAVE, supra, at § 20.3(d)(2) (internal quotation marks
omitted). And the defendant need not verbally threaten the
victim with harm to put the victim in fear.
Intimidation for purposes of a robbery statute
may occur where a defendant approaches a
UNITED STATES V. MOLINAR 17
victim and, using a threatening tone or
threatening body language, makes demands
of the victim. That is, the putting in fear may
be sustained by evidence of acts, words, or
circumstances reasonably calculated to effect
that result.
JILL GUSTAFSON & JEFFREY J. SHAMPO, 67 AM. JUR. 2D
ROBBERY § 31 (2d ed. 2017) (footnotes omitted).
Applying those generic definitions of force and fear here,
we conclude that Arizona robbery is coextensive with
generic robbery. Again, the generic definition of robbery
encompasses not only de minimis force sufficient to compel
acquiescence to the taking of or escaping with property, 9 but
also the implied threat of force. Although we think it is a
close question, we do not understand Arizona’s application
of its robbery statute to sweep more broadly than that. To
explain why, we turn again to Moore, as well as to two other
cases, State v. Yarbrough, 638 P.2d 737 (Ariz. Ct. App.
1981), and State v. Stevens, 909 P.2d 478 (Ariz. Ct. App.
1995). These cases appear to represent the outer bounds of
what conduct is considered robbery, whether accomplished
by force or putting in fear, in Arizona.
In Moore, the defendant used enough force to wrest the
officer’s wallet away from him despite his resistance. See
Moore, 2014 WL 4103951, at *1–2. Force sufficient to
overcome resistance is enough to satisfy the generic
definition of robbery. See LAFAVE, supra, at § 20.3(d)(1).
9
The dissent contends that we treat all de minimis force as
necessarily satisfying the definition of immediate danger to the person.
We do not. Rather, we consider only de minimis force that is sufficient
to compel acquiescence to the taking of or escaping with property.
18 UNITED STATES V. MOLINAR
We are therefore satisfied that the defendant’s actions in
Moore fell within that definition.
In Yarbrough, the defendant entered a convenience store
at night with a stocking over his head, ran behind the
counter, and demanded money from the clerk with his left
hand out of view. 638 P.2d at 738, 740. Even though no
physical force was used or expressly threatened, taken
together, the defendant’s actions were reasonably calculated
to, and in fact did, put the victim in fear. The conduct was
therefore consistent with generic robbery. See GUSTAFSON
& SHAMPO, supra, at § 31.
In Stevens, the defendant approached a stopped car,
opened its door, and accused the driver of nearly hitting him.
The driver did not recall any near accidents. The defendant’s
movements and words made the driver afraid that he might
hurt her. He then bent down over the back of her seat,
grabbed her purse from the rear seat, and fled. 909 P.2d at
479–80. The Arizona Court of Appeals held that “the jury
could and did reasonably conclude [the defendant] intended
to cause her to be so fearful and threatened that she would
not, at the very least, resist his efforts to take her purse.” Id.
at 480.
It is a close question whether the conduct in Stevens
satisfies the generic definition of robbery because the
defendant never verbally threatened the victim and there was
no struggle over the purse. But the defendant’s conduct,
including entering the confined space of the car, created the
sort of face-to-face confrontation that inherently presents a
risk of violence. 10 See United States v. Prince, 772 F.3d
10We note that the court in Stevens also stated that the victim
believed the defendant “looked like an abusive person” and that this was
UNITED STATES V. MOLINAR 19
1173, 1178 (9th Cir. 2014); United States v. Lewis, 405 F.3d
511, 514 (7th Cir. 2005); United States v. Hawkins, 69 F.3d
11, 12–13 (5th Cir. 1995); United States v. McVicar,
907 F.2d 1, 2 (1st Cir. 1990), abrogated on other grounds as
recognized in United States v. Castro-Vasquez, 802 F.3d 28(1st Cir. 2015). That leads us to conclude that the
defendant’s conduct was reasonably calculated to put the
victim in fear and thus satisfies the generic definition of
robbery. See GUSTAFSON & SHAMPO, supra, at § 31.
Having considered these boundary cases, we conclude
that Arizona robbery is coextensive with generic robbery and
is thus a crime of violence under Section 4B1.2’s
enumerated felonies clause. And, of course, armed robbery
includes all the elements of robbery plus the additional
element of being armed. Ariz. Rev. Stat. § 13-1904. Thus,
anyone who has been convicted of armed robbery in Arizona
will have been convicted of all of the elements of generic
robbery. As a result, we hold that Arizona armed robbery
qualifies as a crime of violence under Section 4B1.2’s
enumerated felonies clause.
The only question that remains is whether Arizona
attempted armed robbery also constitutes a crime of
violence. “An attempt to commit a crime of violence is itself
a crime of violence.” United States v. Wenner, 351 F.3d 969,
971–72 (9th Cir. 2003) (citing USSG § 4B1.2 cmt. n.1). And
we have already held in Taylor that Arizona attempt is
coextensive with generic attempt. See Taylor, 529 F.3d at
part of what made her fearful. 909 P.2d at 479-80. To whatever extent
the court treated as relevant a purely subjective reaction to the
defendant’s appearance, we do not rely on that reaction in our assessment
of whether the conduct amounted to generic robbery. The defendant’s
actions were sufficient to create an objectively reasonable fear of harm,
making it a match to generic robbery.
20 UNITED STATES V. MOLINAR
1238. We are not persuaded that the state court cases
Molinar cites regarding Arizona’s definition of attempt
compel a different result. We thus remain bound by Taylor’s
holding that Arizona attempt is a categorical match to
generic attempt. See Gomez-Hernandez, 680 F.3d at 1175(“[W]e are not aware of any subsequent Arizona decision
deviating from the generic definition of attempt.”); see also
United States v. Quintero-Junco, 754 F.3d 746, 750 n.1 (9th
Cir. 2014) (adhering to Taylor’s holding on attempt); United
States v. Gomez, 757 F.3d 885, 899 n.10 (9th Cir. 2014)
(same).
We therefore hold that Arizona attempted armed robbery
qualifies as a crime of violence under Section 4B1.2’s
enumerated felonies clause.
C. Molinar’s Remaining Arguments
Molinar’s remaining arguments against treating his prior
conviction as a crime of violence are unavailing.
First, Molinar argues that because Arizona has abolished
the “claim of right” defense to robbery, and because the
defense is still available for the generic crime, Arizona
“broadly penalizes conduct that would not constitute generic
robbery.” In United States v. Velasquez-Bosque, 601 F.3d
955 (9th Cir. 2010), we rejected this precise argument. Id.
at 963. We reasoned that “[t]he availability of an affirmative
defense [like the claim of right doctrine] is not relevant to
the categorical analysis,” because that analysis looks at the
elements of the crimes being compared (here, the elements
of Arizona robbery as compared to generic robbery), not the
defenses to either. Id.Second, Molinar argues that Arizona’s statutory
definition of “property” sweeps more broadly than the
UNITED STATES V. MOLINAR 21
generic understanding of property because Arizona’s
property definition includes intangible things of value,
whereas the generic definition does not. But a person
commits Arizona robbery only “if in the course of taking any
property of another from his person or immediate presence
and against his will, such person threatens or uses force
against any person.” Ariz. Rev. Stat. § 13-1902(A)
(emphasis added). Molinar points to no case in which an
Arizona robbery conviction was based on the taking of an
intangible object, and given the elements of Arizona
robbery, the very concept seems implausible. See Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (holding that
there must be “a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct
that falls outside the generic definition” to conclude that a
state crime is overbroad). Accordingly, we conclude that
Arizona’s definition of property does not change the result
of our categorical analysis of attempted armed robbery.
III. CONCLUSION
For the foregoing reasons, we hold that an Arizona
conviction for attempted armed robbery is a crime of
violence under Section 4B1.2’s enumerated felonies clause.
We therefore affirm the district court’s imposition of the
sentencing enhancement.
AFFIRMED.
22 UNITED STATES V. MOLINAR
W. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent.
The majority concludes that “Arizona Robbery (and thus
armed robbery) is a categorical match to generic robbery.”
Maj. Op. at 12. I disagree.
Under the law of our circuit, generic robbery requires
that deprivation of property take place “under circumstances
involving immediate danger to the person.” United States v.
Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008) (quoting
United States v. Santiesteban-Hernandez, 469 F.3d 376, 380
(5th Cir. 2006) (quoting 3 Wayne R. LaFave, Substantive
Criminal Law § 20.3 intro., (d)(2) (2d ed. 2003) (brackets
omitted and emphasis added))). Under Arizona law, a
robbery occurred when an unarmed defendant reached
through the open driver’s-side window of a parked car and
grabbed a wallet from the hand of a seated undercover police
officer. State v. Moore, 2014 WL 4103951, ¶ 8 (Ariz. Ct.
App.). There was a brief struggle for control of the wallet,
and the arm of the officer “flew back” when the wallet was
taken from his hand. Id. ¶ 2. Under a plain-meaning
understanding of the phrase “immediate danger to the
person,” the circumstances in Moore did not involve such
danger. Arizona’s definition of robbery is therefore broader
than the generic definition and is not a categorical match.
The majority defines generic robbery as requiring only
force or fear. The majority writes, “Thus, we hold that for a
state crime to be equivalent to generic robbery, it must
require property to be taken from a person or a person’s
presence by means of force or putting in fear.” Maj. Op. at
13. Citing the Fifth Circuit’s opinion in Santiesteban-
Hernandez, the majority contends that its definition of
generic robbery matches the definition of robbery in most
UNITED STATES V. MOLINAR 23
states. Id. at 13 (quoting Santiesteban-Hernandez, 469 F.3d
at 380). But Santiesteban-Hernandez does not support the
majority. The Fifth Circuit did indeed survey the definitions
of robbery in most states. But its definition of generic
robbery does not match the majority’s, for its definition does
not include “force” as a required element. The Texas statute
at issue in Santiesteban-Hernandez did not require the use of
force or threat of force, but that did not matter to the Fifth
Circuit. What mattered was that there be immediate danger.
See Tex. Pen. Code Ann. § 29.02 (Vernon 2006) (requiring
“bodily injury” or “fear of imminent bodily injury or
death”); Santiesteban-Hernandez, 469 F.3d at 380 (“The
immediate danger element is what makes robbery deserving
of greater punishment than that provided for larceny.”
(internal quotation marks omitted)). The Fifth Circuit held
that there was a categorical match because “both [Texas and
generic robbery] involve theft and immediate danger to a
person.” 469 F.3d at 381.
We have taken the “immediate danger” requirement
even more seriously than the Fifth Circuit. In United States
v. Tellez-Martinez, 517 F.3d 813 (5th Cir. 2008) (per
curiam), a post-Santiesteban-Hernandez case, the Fifth
Circuit held that California robbery is a categorical match to
generic robbery, even though the California statute defines
robbery as including theft accomplished by “fear of an
immediate and unlawful injury to the . . . property of anyone
in the company of the person robbed.” Id. at 815 (emphasis
added). Despite fear of injury to property being a sufficient
basis for a robbery conviction, the Fifth Circuit concluded
that “danger is inherent in the criminal act” because the
statute required the crime be committed “(1) directly against
the victim or in his presence; and (2) against his will.” Id.In Becerril-Lopez, we interpreted the very same California
robbery statute and disagreed with the Fifth Circuit. We held
24 UNITED STATES V. MOLINAR
that California robbery is not a categorical match for generic
robbery because we were “unconvinced that a taking by
threat to property necessarily entails dangers to the person.”
Becerril-Lopez, 541 F.3d at 891 n.8.
The majority uses “force” and “fear” in the disjunctive—
that is, in its view there is generic robbery if property is taken
by either force or fear. If either word, as defined by the
majority, does not necessarily entail circumstances
involving “immediate danger to the person,” the majority’s
definition of generic robbery is broader than our definition
of generic robbery in Becerril-Lopez. According to the
majority, the words “force” and “fear” both “implement the
notion of immediate danger.” Maj. Op. at 13. As the
majority defines the two words, this is not true.
The majority defines “force” by relying on our two-
paragraph per curiam opinion in United States v. Harris,
572 F.3d 1065 (9th Cir. 2009). Citing Harris, the majority
writes, “[W]e have held that force sufficient ‘to compel
acquiescence to the taking of or escaping with the property’
satisfies the generic definition of robbery, regardless of what
degree of force that is in a particular instance.” Maj. Op. at
14. Our opinion in Harris, despite its brevity, states the law
of the circuit. But it is not at all clear what Harris held with
respect to force and generic robbery.
The question in Harris was whether, using the
categorical approach, Nevada’s robbery statute was a “crime
of violence” within the meaning of U.S.S.G. § 4B1.2. We
had held in Becerril-Lopez, using the categorical approach,
that California’s robbery statute was a crime of violence.
Generic robbery and generic extortion are both crimes of
violence. The California statute was broader than either
generic robbery or generic extortion considered alone, but
was no broader than the combined elements of those two
UNITED STATES V. MOLINAR 25
generic crimes. Becerril-Lopez, 541 F.3d at 890–893. We
used the same approach in Harris to conclude that the
Nevada robbery statute was a crime of violence, based on the
combined elements of generic robbery and extortion. In the
only sentence in which we addressed force, we wrote:
The Nevada statute’s statement that “[t]he
degree of force used is immaterial if it is used
to compel acquiescence to the taking of or
escaping with the property” also does not
distinguish it from the California statute
analyzed in Becerril-Lopez.
Harris, 572 F.3d at 1066.
This single sentence in Harris is, to say the least, opaque.
It is hardly a holding with respect to the degree of force
required for generic robbery. It is even less a holding that a
slight degree of force is enough to satisfy Becerril-Lopez’s
“immediate danger” requirement for generic robbery. The
three-judge panel in Harris was without authority to
abandon or modify the immediate danger requirement of
Becerril-Lopez, and the panel did not purport to do so. See
United States v. Velasquez-Bosque, 601 F.3d 955, 959, 963
(9th Cir. 2010) (describing Harris as “relying on Becerril-
Lopez” and holding that Becerril-Lopez still “controls our
decision”). Indeed, the panel in Harris nowhere mentioned
the immediate danger requirement.
According to the majority, even “de minimis force
sufficient to compel acquiescence to the taking of or
escaping with property” is enough “force” to satisfy the
definition of generic robbery. Maj. Op. at 17. That is, in the
view of the majority, de minimis force always necessarily
entails circumstances involving the “immediate danger to
the person” that is required by Becerril-Lopez. This is not
26 UNITED STATES V. MOLINAR
true, as may be seen in Moore. De minimis force is even less
than the force required to grab the wallet in Moore, and there
was no “immediate danger” entailed by the circumstances
involving the degree of force used in Moore. It follows that
“immediate danger” is not necessarily created by the lesser
degree of force that would satisfy the majority’s definition.
For the majority, even “jostling” is sufficient. Id. at 15.
Under any plain-meaning understanding of the word,
“jostling” does not necessarily entail circumstances
involving “immediate danger to the person.”
The majority defines “fear” by quoting from the second
edition of Professor LaFave’s treatise on criminal law. The
majority writes:
As to the meaning of “fear” within the
generic definition, a leading treatise teaches:
[T]he word ‘fear’ in
connection with robbery does
not so much mean ‘fright’ as
it means ‘apprehension’; one
too brave to be frightened may
yet be apprehensive of bodily
harm. The victim who is not
apprehensive of harm from
the robber so long as he does
what the robber tells him to
do, though he does expect
harm if he refuses, is
nevertheless ‘put in fear’ for
purposes of the robbery.
LaFave, [Substantive Criminal Law], at
§ 20.3(d)(2) (footnotes omitted).
UNITED STATES V. MOLINAR 27
Maj. Op. at 16. So far as it goes, and for the purpose
intended by Professor LaFave, this is a perfectly adequate
definition of fear. But “fear,” thus defined, does not
necessarily entail circumstances involving “immediate
danger to the person.”
Elsewhere in his treatise, in passages separate from his
definition of fear, Professor LaFave insists that danger is a
required element of robbery. Based on these passages, the
Fifth Circuit required “immediate danger.” It wrote in
Santiesteban-Hernandez:
Although the precise state definitions vary,
the generic form of robbery “may be thought
of as aggravated larceny,” containing at least
the elements of “misappropriation of
property under circumstances involving
[immediate] danger to the person.” Wayne
R. LaFave, Substantive Criminal Law § 20.3
intro., (d)(2) (2d ed. 2003).
469 F.3d at 380 (emphasis added). The Fifth Circuit’s
quotation from Professor LaFave is an amalgam. The word
“immediate” does not appear in the sentence written by
Professor LaFave. The Fifth Circuit took that word from
§ 20.3(d)(2) and inserted it into the sentence that appears in
the introduction to § 20.3. In Becerril-Lopez, we then took
the phrase “immediate danger to the person,” dropped the
brackets around “immediate,” and made it the law of our
circuit.
For the majority to be right that the elements of generic
robbery are satisfied if property is taken through either
“force” or “fear,” both words, as defined by the majority,
must necessarily entail “circumstances involving immediate
danger to the person.” The majority has defined force and
28 UNITED STATES V. MOLINAR
fear so broadly that neither word necessarily entails such
circumstances. “Force,” for the majority, includes de
minimis force and “jostling.” “Fear,” for the majority,
includes the “apprehension” of harm, but only if the victim
fails to cooperate. Neither word, so defined, necessarily
entails “circumstances involving immediate danger to the
person.”
The majority effectively reads “immediate danger to the
person” out of the definition of generic robbery. Becerril-
Lopez, the source of the immediate danger requirement, may
have been wrongly decided (though I do not think so). If so,
the proper course for the panel is not to abandon it, but to
make a sua sponte call for reconsideration by an en banc
panel.