United States v. Marcus Watson

881 F.3d 782
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 1, 2018
Docket16-15357
StatusPublished
Cited by117 cases

This text of 881 F.3d 782 (United States v. Marcus Watson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Marcus Watson, 881 F.3d 782 (9th Cir. 2018).

Opinion

OPINION

PER CURIAM:

We must decide whether armed bank robbery under federal law is a crime of violence under 18 U.S.C. § 924(c). We hold that it is.

The government charged Marcus Watson and Rogussia Danielson with armed-bank robbery committed “by force, violence, and by intimidation,” in violation of 18 U.S.C. § 2113(a) and (d), after they robbed an American Savings Bank while armed with handguns. The government also charged them with using or carrying a firearm during a crime of violence (namely, the armed bank robbery), in violation of 18 U.S.C. § 924(c)(1)(A). Watson and Daniel-son pleaded guilty to both offenses. The district court sentenced Watson to 192 months and Danielson to 182 months in prison.

Watson and Danielson did not appeal. But less than a year after entry of judgment, they filed motions under 28 U.S.C. § 2255 challenging the validity of their § 924(c) convictions. They argued that their convictions for using or carrying a firearm during a crime of violence are unlawful because the predicate offense for that charge—armed bank robbery—no longer qualifies as a crime of violence. The district court denied the motions but granted certificates of appealability. On appeal, the government does not raise any procedural barriers to our consideration of this collateral attack.

Section 924(c) imposes a mandatory consecutive term of imprisonment for using or carrying 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 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.

18 U.S.C. § 924(c)(3). Clause (A) of this definition is known as the “force clause” and clause (B). is known as the “residual clause.” We need not address the residual clause because we conclude that the relevant offense of armed bank robbery is a crime of violence under the force clause. See United States v. Gutierrez, 876 F.3d 1254, 1256 (9th Cir. 2017) (per curiam).

To qualify as a crime of violence under the force clause, the element of “physical force” must involve “violent” physical force—“that is, force capable of causing physical pain or injury.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Although Johnson construed the force clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), the Johnson standard also applies to the similarly worded force clause of § 924(c)(3)(A). Gutierrez, 876 F.3d at 1256.

The question, then, is whether bank robbery in violation of § 2113(a) meets the Johnson standard and thus qualifies as a crime of violence. We use the categorical approach to make that determination. See Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). Under this approach, the sole focus is on the elements of the relevant statutory offense, not on the facts underlying the convictions. Id. An offense is categorically a crime of violence only if the least violent form of the offense qualifies as a crime of violence. See Moncrieffe v. Holder, 569 U.S. 184, 190-91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013).

The federal bank robbery statute provides, in relevant part:

Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association [shall be punished according to law].

18 U.S.C. § 2113(a). 1

Watson and Danielson argue that bank robbery “by force and violence, or by intimidation” does not constitute a crime of violence. They do not dispute that committing bank robbery “by force and violence” necessarily entails the use of violent physical force as Johnson requires. But they argue that the least violent form of the offense—bank robbery “by intimidation”— does not meet the requirements for a crime of violence for two reasons.

First, they contend that bank robbery by intimidation does not necessarily involve violent physical force as required under Johnson. We recently confronted this exact argument in Gutierrez and rejected it. See 876 F.3d at 1256-57. In Gutierrez, we held that “intimidation” as used in § 2113(a) requires that the defendant take property “in such a way Ithat would put an ordinary, reasonable person in fear of bodily harm” and that a “defendant cannot put a reasonable person in fear of bodily harm without threatening to use force capable of causing physical pain or injury.” Id. at 1257 (internal quotation marks omitted). We concluded that bank robbery qualifies as a crime of violence because even its least violent form “requires at least an implicit threat to use the type of violent physical force necessary to meet the Johnson standard.” Id. In so holding, we joined every other circuit to address the same question. See United States v. Ellison, 866 F.3d 32, 39-40 (1st Cir. 2017); United States v. Brewer, 848 F.3d 711, 715-16 (5th Cir. 2017); United States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016); United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016).

Second, Watson and Danielson argue that bank robbery by intimidation does not meet the mens rea requirement for a crime of violence. In Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), the Supreme Court held that a crime of violence requires “a higher degree of intent than negligent or merely accidental conduct.” Id. at 9, 125 S.Ct. 377.

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Bluebook (online)
881 F.3d 782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-marcus-watson-ca9-2018.