United States v. Samuel Gutierrez

876 F.3d 1254
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 12, 2017
Docket16-35583
StatusPublished
Cited by58 cases

This text of 876 F.3d 1254 (United States v. Samuel Gutierrez) 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. Samuel Gutierrez, 876 F.3d 1254 (9th Cir. 2017).

Opinion

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)(l)(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 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 pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (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, 133 S.Ct. 1678, 185 L.Ed.2d 727 (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 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.

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Bluebook (online)
876 F.3d 1254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-samuel-gutierrez-ca9-2017.