United States v. Samuel Gutierrez ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-35583
Plaintiff-Appellee,
D.C. Nos.
v. 1:16-cv-03112-LRS
1:14-cr-02094-LRS-1
SAMUEL LUIS GUTIERREZ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Submitted December 5, 2017*
Seattle, Washington
Filed December 12, 2017
Before: Diarmuid F. O’Scannlain, Richard C. Tallman,
and Paul J. Watford, Circuit Judges.
Per Curiam Opinion
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. GUTIERREZ
SUMMARY**
28 U.S.C. § 2255Affirming the district court’s denial of a motion under
28 U.S.C. § 2255 challenging a conviction under 18 U.S.C.
§ 924(c)(1)(A)(ii) for brandishing a firearm during a crime of
violence, the panel held that the federal offense of carjacking
is a “crime of violence” under § 924(c).
COUNSEL
Matthew Campbell, Federal Defenders of Eastern
Washington & Idaho, Spokane, Washington, for Defendant-
Appellant.
Thomas J. Hanlon, Assistant United States Attorney; Michael
C. Ormsby, United States Attorney; Joseph H. Harrington,
Acting United States Attorney; United States Attorney’s
Office, Yakima, Washington; for Plaintiff-Appellee.
**
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. GUTIERREZ 3
OPINION
PER CURIAM:
The sole question presented by this appeal is whether the
federal offense of carjacking is a “crime of violence” under
18 U.S.C. § 924(c). We hold that it is.
The facts underlying this case are simple and not in
dispute. Samuel Gutierrez approached a woman in a parking
lot, pointed a silver handgun at her, and demanded her keys.
The woman complied, and Gutierrez drove off with her car.
The police were notified immediately and apprehended
Gutierrez after a short chase. Gutierrez was found in
possession of the victim’s cell phone and a loaded, nickel-
plated gun.
The government charged Gutierrez with three counts:
(1) carjacking, in violation of 18 U.S.C. § 2119;
(2) brandishing a firearm during a crime of violence (namely,
the carjacking charged in count 1), in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii); and (3) being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).
Pursuant to a plea agreement, Gutierrez pleaded guilty to the
second count in exchange for the government’s dismissal of
the first and third counts. The district court sentenced
Gutierrez to 180 months in prison, the sentence to which the
parties had stipulated under Federal Rule of Criminal
Procedure 11(c)(1)(C).
Gutierrez did not take a direct appeal, but less than a year
after entry of judgment he filed a motion challenging the
validity of his conviction under 28 U.S.C. § 2255. Gutierrez
argued that his conviction for brandishing a firearm during a
4 UNITED STATES V. GUTIERREZ
crime of violence is invalid because the predicate offense for
that charge—carjacking—does not qualify as a crime of
violence. The district court denied relief after determining
that carjacking is a crime of violence and that Gutierrez’s
conviction is therefore lawful. On appeal, the government
does not raise any procedural barriers to our consideration of
Gutierrez’s collateral attack, so we proceed straight to the
merits.
As relevant here, § 924(c) punishes any person who uses
or carries a firearm “during and in relation to any crime of
violence.” 18 U.S.C. § 924(c)(1)(A). The term “crime of
violence” is defined in § 924(c)(3) as an offense that is a
felony and—
(A) has as an element the use, attempted use,
or threatened use of physical force against the
person or property of another, or
(B) that by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course
of committing the offense.
Clause (A) of this definition is known as the “force clause,”
while clause (B) is known as the “residual clause.” Because
we conclude that carjacking constitutes a crime of violence
under the force clause, we have no need to address the
residual clause.
The Supreme Court has held that to qualify as a “crime of
violence” under the force clause, an offense must have as an
element the use, attempted use, or threatened use of violent
physical force—“that is, force capable of causing physical
UNITED STATES V. GUTIERREZ 5
pain or injury to another person.” Johnson v. United States,
559 U.S. 133, 140 (2010). The question is whether the
offense defined in the carjacking statute meets that standard.
Under the categorical approach used to make that
determination, the more specific question is whether the least
serious form of the offense meets the Johnson standard. See
Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013). If it
does, carjacking qualifies categorically as a crime of
violence.
Section 2119 defines carjacking as follows:
Whoever, with the intent to cause death or
serious bodily harm takes a motor vehicle . . .
from the person or presence of another by
force and violence or by intimidation, or
attempts to do so, shall [be punished
according to law].
18 U.S.C. § 2119. If the carjacking is committed “by force
and violence,” it obviously qualifies as a crime of violence
under the Johnson standard. But the offense can also be
committed “by intimidation,” and Gutierrez argues that
intimidation does not require the use, attempted use, or
threatened use of violent physical force.
We have not yet decided whether carjacking constitutes
a crime of violence. But each of the other circuits to confront
the question after Johnson has concluded that carjacking
qualifies as a crime of violence. See United States v. Evans,
848 F.3d 242, 247–48 (4th Cir. 2017); United States v. Jones,
854 F.3d 737, 740–41 (5th Cir. 2017); Ovalles v. United
States, 861 F.3d 1257, 1267–69 (11th Cir. 2017). In so
holding, the Fourth and Fifth Circuits relied on their prior
6 UNITED STATES V. GUTIERREZ
decisions construing the federal bank robbery statute, which,
like the carjacking statute, proscribes robbery “by force and
violence, or by intimidation.” 18 U.S.C. § 2113(a); see
Evans, 848 F.3d at 246–47; Jones, 854 F.3d at 740. Those
two circuits (and others) have held that “intimidation” as used
in the federal bank robbery statute requires the threatened use
of violent physical force and thus satisfies the Johnson
standard. See United States v. McNeal, 818 F.3d 141, 153
(4th Cir. 2016); United States v. Brewer, 848 F.3d 711,
715–16 (5th Cir. 2017); see also United States v. Ellison,
866 F.3d 32, 39–40 (1st Cir. 2017); United States v. McBride,
826 F.3d 293, 296 (6th Cir. 2016). The Fourth and Fifth
Circuits construed “intimidation” in the federal carjacking
statute to mean the same thing as its counterpart in the federal
bank robbery statute.
We agree with the analysis of our sister circuits. We, too,
have held that “intimidation” as used in the federal bank
robbery statute requires that a person take property “in such
a way that would put an ordinary, reasonable person in fear
of bodily harm,” which necessarily entails the “threatened use
of physical force.” United States v. Selfa, 918 F.2d 749, 751
(9th Cir. 1990) (citation omitted). As a result, in our court,
too, federal bank robbery constitutes a crime of violence. Id.We have not addressed in a published decision whether
Selfa’s holding remains sound after Johnson, but we think it
does. A defendant cannot put a reasonable person in fear of
bodily harm without threatening to use “force capable of
causing physical pain or injury.” Johnson, 559 U.S. at 140;
see United States v. Castleman, 134 S. Ct. 1405, 1417 (2014)
(Scalia, J., concurring) (bodily injury necessarily involves the
use of violent force). Bank robbery by intimidation thus
requires at least an implicit threat to use the type of violent
physical force necessary to meet the Johnson standard.
UNITED STATES V. GUTIERREZ 7
We see no reason to interpret the term “intimidation” in
the federal carjacking statute any differently. To be guilty of
carjacking “by intimidation,” the defendant must take a motor
vehicle through conduct that would put an ordinary,
reasonable person in fear of bodily harm, which necessarily
entails the threatened use of violent physical force. It is
particularly clear that “intimidation” in the federal carjacking
statute requires a contemporaneous threat to use force that
satisfies Johnson because the statute requires that the
defendant act with “the intent to cause death or serious bodily
harm.” 18 U.S.C. § 2119; see Holloway v. United States,
526 U.S. 1, 12 (1999) (“The intent requirement of § 2119 is
satisfied when the Government proves that at the moment the
defendant demanded or took control over the driver’s
automobile the defendant possessed the intent to seriously
harm or kill the driver if necessary to steal the car.”). As a
result, the federal offense of carjacking is categorically a
crime of violence under § 924(c).
AFFIRMED.