United States v. Bell

158 F.Supp.3d 906

United States of America, Plaintiff,

v.Donnie Bell, et al, Defendant.

Case No. 15-cr-00258-WHO

United States District Court, N.D. California.

Signed January 28, 2016

Scott D. Joiner, U.S. Attorney's Office, San Francisco, CA, for Plaintiff.

Gabriela Bischof, Federal Public Defender, Juliana Drous, Attorney at Law, San Francisco, CA, Anthony Stuart Lowenstein, Lowenstein Law Office, San Rafael, CA, for Defendant.

ORDER ON DEFENDANTS' MOTIONS TO DISMISS

Re: Dkt. Nos. 37, 38, 44

WILLIAM H. ORRICK, United States District Judge

INTRODUCTION

Count Four of the indictment in this case charges defendants Donnie Bell, Dwight Hart, and Antonio Johnson with using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). The indictment alleges two crime of violence predicates for the section 924(c) charge: assault on a person assisting a federal officer in violation of 18 U.S.C. § 111 (Count Two), and robbery of government property in violation of 18 U.S.C. § 2112 (Count Three).

Defendants' motions to dismiss under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), arguing that the section 924(c) charge fails to state an offense because neither of the alleged crime of violence predicates qualifies as a crime of violence under the definition set forth in 18 U.S.C. § 924(c)(3), are DENIED. For the reasons discussed below, I find that section 2112 is not a crime of violence under section 924(c)(3), but that section 111 is.

BACKGROUND

On May 7, 2015, Bell, Hart, and Johnson were charged in a common indictment with (1) one count of conspiracy, 18 U.S.C. § 371 ; (2) one count of assault on a person assisting a federal officer, 18 U.S.C. § 111 ; (3) one count of robbery of government property, 18 U.S.C. § 2112 ; (4) one count of using a firearm during a crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(i) and (ii), 924(c)(1)(B) ; (5) one count of felon in possession of a firearm, 18 U.S.C. § 922(g) ; and (6) one count of possession of an unregistered firearm, 26 U.S.C. § 5861(d). Dkt. No. 14 ¶¶ 1-9. The alleged crime of violence predicates for the section 924(c) charge are the assault in violation of section 111 (Count 2) and the robbery in violation of section 2112 (Count 3).

Bell and Hart filed separate motions to dismiss on November 18 and 19, 2015. Dkt. Nos. 37–38. On December 2, 2015, Johnson filed a motion for joinder in the motions to dismiss. Dkt. No. 44.¹ I heard argument from the parties on January 7, 2016. Dkt. No. 52.

DISCUSSION

Section 924(c)(1)(A) provides for certain penalties for a person “who, during and in relation to any crime of violence..., uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). Under section 924(c)(3), a “crime of violence” in this context means

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). Courts generally refer to the “(A)” clause of section 924(c)(3) as the “force clause” and to the “(B)” clause of section 924(c)(3) as the “residual clause.”

Defendants contend that neither of the offenses underlying their section 924(c) charge qualifies as a crime of violence under section 924(c)(3), and that as a result the section 924(c) charge must be dismissed. Specifically, defendants contend that neither section 111 nor section 2112 is a crime of violence under the force clause, and that under the Supreme Court's recent ruling in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (“Johnson II ”), the residual clause is unconstitutionally vague and thus cannot be used to support the section 924(c) charge against them.

I. FORCE CLAUSE

I begin with the force clause, which, as stated above, defines “crime of violence” to include a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A).

To determine whether an offense qualifies as a “crime of violence” under section 924(c)(3), the Ninth Circuit applies the “categorical approach” set forth in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States v. Piccolo , 441 F.3d 1084, 1086–87 (9th Cir.2006) (“In the context of crime of violence determinations under section 924(c), our categorical approach applies regardless of whether we review a current or prior crime.”); United States v. Amparo , 68 F.3d 1222, 1225–26 (9th Cir.1995) ; United States v. Mendez , 992 F.2d 1488, 1490–92 (9th Cir.1993) ; United States v. Springfield , 829 F.2d 860, 862–63 (9th Cir.1987).

A court applying the categorical approach must “determine whether the [offense] is categorically a ‘crime of violence’ by comparing the elements of the [offense] with the generic federal definition”—here, the definition of “crime of violence” set forth in the section 924(c)(3) force clause. United States v. Sahagun – Gallegos , 782 F.3d 1094, 1098 (9th Cir.2015). This process requires the court to “look to the elements of the offense rather than the particular facts underlying the defendant's own [case].” United States v. Dominguez – Maroyoqui , 748 F.3d 918, 920 (9th Cir.2014). Because the categorical approach is concerned only with what conduct the offense necessarily involves, the court “must presume that the [offense] rest[s] upon nothing more than the least of the acts criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” Moncrieffe v. Holder , ––– U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (internal quotation marks and alterations omitted). If the elements of the offense “criminalize a broader swath of conduct” than the conduct covered by the generic federal definition, the offense cannot qualify as a crime of violence, even if the particular facts underlying the defendant's own case might satisfy that definition. Dominguez – Maroyoqui , 748 F.3d at 920 (internal quotation marks omitted).

In ascertaining the scope of conduct criminalized by the elements of an offense, the court considers not only the statutory language, “but also the interpretation of that language in judicial opinions.” Covarrubias Teposte v. Holder , 632 F.3d 1049, 1054 (9th Cir.2011) (internal quotation marks omitted). To find an offense overbroad, there must be a “realistic probability, not a theoretical possibility,” that the statute would be applied to conduct not encompassed by the generic federal definition. Gonzales v. Duenas – Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ; accord United States v. McGuire , 706 F.3d 1333, 1337 (11th Cir.2013) (applying the “realistic probability” standard to a crime of violence determination under section 924(c)(3) ).

In a case involving a “divisible” statute, the court may also go beyond the categorical approach and apply the “modified categorical approach,” which allows the court “to examine a limited class of documents to determine which of a statute's alternative elements formed the basis of the defendant's prior conviction.” Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2284, 186 L.Ed.2d 438 (2013) (internal quotation marks omitted). A statute is “divisible” when it contains “multiple, alternative elements of functionally separate crimes,” Rendon v. Holder , 764 F.3d 1077, 1084–85 (9th Cir.2014) (emphasis in original), as opposed to just “alternative means of committing the same crime,” Almanza – Arenas v. Lynch , 809 F.3d 515, 524 (9th Cir.2015). “[T]he key question [the court] must ask when determining a statute's divisibility is whether a jury would have to be unanimous in finding those separate elements.” Ramirez v. Lynch , ––– F.3d ––––, ––––, 2016 WL 239661, at *5 (9th Cir. Jan. 20, 2016).

Defendants focus their arguments regarding the section 924(c)(3) force clause on the specialized meanings that have been given to the terms “physical force” and “use.” In Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (“Johnson I ”), the Supreme Court considered whether a conviction for simple battery under Florida law qualifies as a “violent felony” under the force clause of the Armed Career Criminal Act (“ACCA”). The ACCA force clause, like the section 924(c)(3) force clause, defines “violent felony” to include a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(2)(B)(i).² The Court held that to satisfy this definition, the physical force required by the offense must be “violent force—that is, force capable of causing physical pain or injury to another person.” 559 U.S. at 140, 130 S.Ct. 1265 (emphasis in original). The Court observed that “even by itself, the word ‘violent’ in section 924(e)(2)(B) connotes a substantial degree of force... When the adjective ‘violent’ is attached to the noun ‘felony,’ its connotation of strong physical force is even clearer.” Id.

The Ninth Circuit has since extended this definition of “physical force” to other generic offense provisions, including 18 U.S.C. § 16(a) and U.S.S.G. § 2L1.2, both of which define “crime of violence” using language that is identical or essentially identical to that used in the ACCA force clause and the section 924(c)(3) force clause.³ See, e.g., United States v. Dominguez – Maroyoqui , 748 F.3d 918, 920–21 (9th Cir.2014) (U.S.S.G. § 2L1.2 ); United States v. Flores – Cordero , 723 F.3d 1085, 1087 (9th Cir.2013) (U.S.S.G. § 2L1.2 ); Rodriguez – Castellon v. Holder , 733 F.3d 847, 854 (9th Cir.2013) (18 U.S.C. § 16(a) ). A number of other courts have extended the Johnson I definition of “physical force” to the section 924(c)(3) force clause. See, e.g., ...