USA V.tony Buck ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-17271
Plaintiff-Appellee,
D.C. Nos.
v. 2:16-cv-02018-SRB
2:95-cr-00386-SRB-2
TONY BUCK,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted November 18, 2021
Phoenix, Arizona
Filed January 11, 2022
Before: Ronald Lee Gilman, * Consuelo M. Callahan, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Bress
*
The Honorable Ronald Lee Gilman, United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 UNITED STATES V. BUCK
SUMMARY **
28 U.S.C. § 2255
The panel affirmed the district court’s denial of a motion
pursuant to 28 U.S.C. § 2255 in which federal prisoner Tony
Buck argued that his convictions for assaulting a mail carrier
with intent to steal in violation of 18 U.S.C. § 2114(a) did
not qualify as crimes of violence under 18 U.S.C.
§ 924(c)(3).
The parties agreed that § 2114(a) is divisible into basic
and aggravated offenses, but disagreed whether the
aggravated offense is itself further divisible. The panel
concluded that the aggravated offense under § 2114(a) is
further divisible into three separate offenses, and proceeded
to apply the modified categorical approach. At the first step,
the panel wrote that for Count 1 (which produced the
operative Count 2 § 924(c) conviction), Buck was charged
with and convicted of assault with intent to steal mail with
the aggravating element of placing the mail carrier’s life in
jeopardy by the use of a dangerous weapon. At the second
step, the panel determined that this divisible offense of
conviction satisfies § 924(c)(3)(A)’s elements clause as a
categorical matter, agreeing with the Sixth Circuit’s
explanation for why aggravated postal robbery through use
of a dangerous weapon under § 2114(a) meets the “force”
requirement: both assault and robbery require at least some
force or threatened use of force, and the use of a dangerous
weapon to put the victim’s life in jeopardy transforms the
force into violent physical force. The panel wrote that neither
**
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. BUCK 3
the jury instructions nor § 2114(a) contain any suggestion
that mere recklessness would suffice; instead, § 2114(a)
requires intentional wrongdoing. The panel therefore held
that an offender who assaults a mail carrier with intent to
steal mail, while placing the mail carrier’s life in jeopardy
by the use of a dangerous weapon, commits a crime of
violence under § 924(c)(3)(A).
COUNSEL
Nancy Hinchcliffe (argued), Phoenix, Arizona, for
Petitioner-Appellant.
Karla Hotis Delord (argued), Assistant United States
Attorney; Krissa M. Lanham, Appellate Division Chief;
Glenn B. McCormick, Acting United States Attorney;
United States Attorney’s Office, Phoenix, Arizona; for
Respondent-Appellee.
OPINION
BRESS, Circuit Judge:
The question in this case is whether assaulting a mail
carrier with intent to steal mail, while placing the mail
carrier’s life in jeopardy by the use of a dangerous weapon,
see 18 U.S.C. § 2114(a), is categorically a crime of violence
under 18 U.S.C. § 924(c)(3). Like other circuits, we hold
that it is. We thus affirm the district court’s denial of habeas
relief.
4 UNITED STATES V. BUCK
I
In September 1995, Tony Buck robbed two U.S. Postal
Service mail carriers in the Phoenix area in an apparent effort
to find cash sent through the mail. In the first robbery, Buck
approached a mail carrier who was parked in her postal
vehicle, ordered her at gunpoint to put mail in a bag, and then
fled. In the second robbery, committed a week later, Buck
(acting with accomplices) shot a mail carrier in the head.
Fortunately, the mail carrier survived.
In 1996, following a six-day jury trial, Buck was
convicted on two counts of assaulting a mail carrier with
intent to steal mail, in violation of 18 U.S.C. § 2114(a)
(Counts 1 and 5); one count of attempted murder of a mail
carrier, in violation of 18 U.S.C. § 1114 (Count 3); and three
counts of using a firearm during and in relation to a “crime
of violence,” in violation of 18 U.S.C. § 924(c)(1) (Counts
2, 4, and 6). Buck was also charged with and convicted of
aiding and abetting under 18 U.S.C. § 2.
The district court sentenced Buck to concurrent terms of
210 months’ imprisonment on the assault and attempted
murder convictions, a consecutive term of 60 months’
imprisonment for the first § 924(c) conviction (based on the
Count 1 § 2114(a) conviction for the first robbery), and a
consecutive term of 240 months’ imprisonment for the
second § 924(c) conviction (based on the Count 3 § 1114
conviction for attempted murder). The district court did not
impose a sentence for Buck’s third § 924(c) conviction
(Count 6, which was predicated on the Count 5 § 2114(a)
conviction for the second robbery), finding that it would
have been duplicative to impose two sentences for Buck’s
use of a firearm during the second robbery “because it was
one continuous event.” Buck was thus sentenced to a total
term of 510 months’ imprisonment. We affirmed his
UNITED STATES V. BUCK 5
convictions and sentence on direct appeal. United States v.
Buck, 133 F.3d 929 (9th Cir. 1997) (unpublished).
In 2016, Buck filed the operative version of his motion
to vacate, set aside, or correct sentence under 28 U.S.C.
§ 2255, arguing that his § 2114(a) convictions did not
qualify as crimes of violence under 18 U.S.C. § 924(c)(3).
Although Counts 2 and 6 are at issue here, and Buck did not
receive a sentence on Count 6, if Buck is successful in
invalidating his § 924(c) conviction on Count 2, Buck’s
§ 924(c) sentence for Count 4 would be limited to 60
months, rather than 240 months. That is because at the time,
§ 924(c)(1) imposed a 5-year consecutive term of
imprisonment for the first offense, and a 20-year term for the
second one. Id. § 924(c)(1) (1994). Thus, the import of
Buck’s argument that his conviction for assaulting a mail
carrier under § 2114(a) is not a crime of violence is that he
should have only one § 924(c) conviction (based on the
attempted murder), and that his sentence should therefore be
reduced by twenty years.
The district court denied Buck’s § 2255 motion. We
granted a certificate of appealability.
II
We review de novo “whether a criminal conviction is a
crime of violence under § 924(c)(3).” United States v.
Dominguez, 954 F.3d 1251, 1256 (9th Cir. 2020). We now
hold that the aggravated offense of assaulting a mail carrier
with intent to steal mail, while placing the mail carrier’s life
in jeopardy by the use of a dangerous weapon, 18 U.S.C.
§ 2114(a), is a “crime of violence” under the elements clause
of 18 U.S.C. § 924(c)(3)(A).
6 UNITED STATES V. BUCK
A
Under 18 U.S.C. § 924(c), any person who uses or
carries a firearm “during and in relation to any crime of
violence” is subject to punishment. A “crime of violence” is
“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.
Id. § 924(c)(3).
The first clause is known as the “elements clause” (or the
“force clause”). The second clause is called the “residual
clause.” In United States v. Davis, 139 S. Ct. 2319 (2019),
the Supreme Court held that the residual clause is
unconstitutionally vague. Today, to stand convicted of using
a firearm during and in relation to a crime of violence, an
offender must therefore satisfy the elements clause.
In determining whether a crime falls within the elements
clause and thus constitutes a crime of violence, we apply the
categorical approach. See Taylor v. United States, 495 U.S.
575, 602 (1990). Under that methodology, instead of
assessing the specific facts underlying a given conviction,
we consider whether the elements of the statute of conviction
meet the federal definition of a “crime of violence.”
Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). The
question here is thus whether a conviction under § 2114(a)
necessarily “has as an element the use, attempted use, or
UNITED STATES V. BUCK 7
threatened use of physical force against the person or
property of another.” 18 U.S.C. § 924(c)(3)(A). “If any—
even the least culpable—of the acts criminalized do not
entail that kind of force, the statute of conviction does not
categorically match the federal standard, and so cannot serve
as . . . [a] predicate” felony for § 924(c). Borden v. United
States, 141 S. Ct. 1817, 1822 (2021) (plurality opinion).
We apply a modified categorical approach when the
statute is “‘divisible,’ meaning that it ‘comprises multiple,
alternative versions of the crime,’ at least one of which
‘correspond[s] to the generic offense.’” Alvarado v. Holder,
759 F.3d 1121, 1126 (9th Cir. 2014) (quoting Descamps v.
United States, 570 U.S. 254, 261–62 (2013)). A statute is
divisible when it “list[s] elements in the alternative, and
thereby define[s] multiple crimes.” Mathis v. United States,
136 S. Ct. 2243, 2249 (2016). A statute is not divisible if it
merely lists “alternative means of committing the same
crime.” Almanza-Arenas v. Lynch, 815 F.3d 469, 478 (9th
Cir. 2016) (en banc); see also Mathis, 136 S. Ct. at 2249. If
a statute is indivisible and criminalizes a broader range of
conduct than would fit the federal definition of a crime of
violence, there is no categorical match, and that ends the
inquiry. Almanza-Arenas, 815 F.3d at 475.
But if the statute of conviction is divisible, and if one of
the alternative versions of the crime would qualify as a crime
of violence under the elements clause, we then determine,
using certain permitted sources, whether the offender was
convicted under that part of the divisible statute. In that
circumstance, the modified categorical approach “permits a
court to determine which statutory phrase was the basis for
the conviction by consulting the trial record—including
charging documents, plea agreements, transcripts of plea
colloquies, findings of fact and conclusions of law from a
8 UNITED STATES V. BUCK
bench trial, and jury instructions and verdict forms.”
Johnson v. United States, 559 U.S. 133, 144 (2010).
B
18 U.S.C. § 2114(a) criminalizes assaulting and robbing
mail carriers:
A person who assaults any person having
lawful charge, control, or custody of any mail
matter or any money or other property of the
United States, with intent to rob, steal, or
purloin such mail matter, money, or other
property of the United States, or robs or
attempts to rob any such person of mail
matter, or of any money, or other property of
the United States, shall, for the first offense,
be imprisoned not more than ten years; and if
in effecting or attempting to effect such
robbery he wounds the person having
custody of such mail, money, or other
property of the United States, or puts his life
in jeopardy by the use of a dangerous
weapon, or for a subsequent offense, shall be
imprisoned not more than twenty-five years.
In determining whether Buck’s § 2114(a) conviction
qualifies as a crime of violence, we first assess whether the
statute is divisible. It is.
As an initial matter, § 2114(a) is divisible into basic and
aggravated offenses—a point on which the parties agree.
The basic offense, punishable by “not more than ten years,”
is contained in the clause preceding the semicolon. That
crime consists of assaulting any person with custody or
control of mail matter or other government property with
UNITED STATES V. BUCK 9
intent to steal the property, or otherwise attempting or
successfully robbing the person of the property. Id. The
aggravated offense, which follows the semicolon, carries a
term of imprisonment of “not more than twenty-five years.”
Id. That crime consists of the basic offense committed in
one of three aggravated ways: (1) wounding the person with
custody or control of mail matter or other government
property; (2) placing the person’s “life in jeopardy by the use
of a dangerous weapon”; or (3) committing a subsequent
offense under § 2114(a). Id.
The basic and aggravated offenses in § 2114(a) are
plainly different crimes with different punishments, making
these two sets of offenses divisible from each other. See
Mathis, 136 S. Ct. at 2249, 2256. Other circuits agree. See
Knight v. United States, 936 F.3d 495, 498–99 (6th Cir.
2019) (“[W]e conclude that the statute sets out a separate
aggravated offense.”); United States v. Enoch, 865 F.3d 575,
579–80 (7th Cir. 2017) (“The portion of the statute before
the semi-colon . . . constitutes a different crime than the part
of the statute after the semi-colon.”); see also United States
v. Bryant, 949 F.3d 168, 174 (4th Cir. 2020) (noting the
parties’ agreement that § 2114(a) is divisible into a basic and
aggravated offense).
The parties disagree, however, whether the aggravated
offense is itself further divisible. We conclude that it is. The
Supreme Court in Mathis distinguished statutes that “list[]
multiple elements disjunctively” from those that
“enumerate[] various factual means of committing a single
element.” 136 S. Ct. at 2249. Mathis contrasted a
hypothetical statute that prohibits “the lawful entry or the
unlawful entry of a premises with intent to steal” with a
hypothetical statute that “requires the use of a deadly
weapon as an element of a crime and further provides that
10 UNITED STATES V. BUCK
the use of a knife, gun, bat, or similar weapon would all
qualify.” Id. (quotations omitted). The former was an
example of a divisible statute, where lawful and unlawful
entry with intent to steal were different offenses. Id. The
latter was an example of an indivisible statute that merely
provided multiple factual means of satisfying the same
element (the “use of a deadly weapon”). Id.
Here, the second clause of § 2114(a) presents disjunctive
elements, not alternative factual means of committing a
single offense. A person commits the aggravated offense
under § 2114(a) and exposes himself to an extra fifteen
years’ imprisonment if he “wounds the person having
custody of such mail, money, or other property of the United
States, or puts his life in jeopardy by the use of a dangerous
weapon, or for a subsequent offense.” 18 U.S.C. § 2114(a).
In context, the three items in the aggravated clause are
substantively different elements concerning different
conduct and involving different proof.
Taking the clauses in reverse order, the third aggravated
offense requires an offender only to have previously
committed a § 2114(a) offense. The second aggravated
offense requires the “use of a dangerous weapon” in a way
that puts the life of the person with custody of government
property in jeopardy, but does not necessarily wound that
person. The first aggravated offense, meanwhile, requires
the government to prove that the victim was wounded, but
does not specify that the wound must be delivered by a
dangerous weapon. These are thus not factual alternatives
for committing the same element. Rather, they are
alternative elements, each independently sufficient to trigger
the enhanced penalty under § 2114(a). See Mathis, 136 S.
Ct. at 2249.
UNITED STATES V. BUCK 11
Mathis also recognized that, if the face of a statute of
conviction is unclear, courts can take a “peek at the record
documents” for “the sole and limited purpose of determining
whether the listed items are elements of the offense.” Id.
at 2256–57 (alterations and quotations omitted); see also
Rivera v. Lynch, 816 F.3d 1064, 1078 (9th Cir. 2016) (noting
that indictments and jury instructions can be considered to
determine whether a statute is divisible). Mathis explained
that if an indictment and jury instructions “referenc[ed] one
alternative term to the exclusion of all others,” that is an
indication that the statute contains different elements, rather
than multiple means of committing the same element. 136 S.
Ct. at 2257.
Here, if any further confirmation is needed, the record
soundly supports treating § 2114(a) as creating three
separate aggravating offenses. For the first robbery, Count
1 of Buck’s indictment charged him with “put[ting] in
jeopardy the life of [a mail carrier], by use of a dangerous
weapon, that is, a firearm.” On Count 1, the court instructed
the jury that the government was required to prove that Buck
“put the life of [a mail carrier] . . . in jeopardy by the use of
a dangerous weapon, that is a firearm.” The district court
gave the same instruction for Count 5, concerning the second
robbery. The government thus did not simply charge Buck
with committing aggravated postal robbery by one of several
means. Instead, the government charged Buck with
committing a specific aggravated offense—placing a mail
carrier’s life in jeopardy by the use of a dangerous weapon—
and the district court instructed the jury as to that specific
aggravating element.
Buck points out that in Count 5 of the indictment, he was
charged with “wound[ing] or otherwise put[ting] in jeopardy
the life of [a mail carrier], by use of a dangerous weapon,
12 UNITED STATES V. BUCK
that is, a firearm.” He argues that because Count 5
references both wounding and putting a mail carrier’s life in
jeopardy, this demonstrates that these are merely alternative
means of committing the same element, not separate
elements themselves.
Buck is mistaken. As an initial matter, there is no
§ 924(c) sentence associated with Count 5 because the
district court did not impose one after finding that it would
be duplicative. But even assuming Count 5 were relevant to
the inquiry, it does not change matters. For Count 5, the
government could reasonably charge Buck with committing
both aggravating elements, considering he shot a mail carrier
in the head. And regardless, the jury was ultimately
instructed only as to the aggravating element that Buck put
the mail carrier’s life in jeopardy. The fact that the
indictment in Count 5 mentions both wounding and placing
a mail carrier’s life in jeopardy thus does not alter the fact
that the second clause of § 2114(a) sets forth alternative
aggravating elements. 1
C
Having established that the aggravated offense under
§ 2114(a) is further divisible into three separate offenses, we
now apply the modified categorical approach. The first step
is to determine the offense for which was Buck convicted.
See Dominguez v. Barr, 975 F.3d 725, 738 (9th Cir. 2020).
As discussed, for Count 1 (which produced the operative
Count 2 § 924(c) conviction), Buck was charged with and
convicted of assault with intent to steal mail with the
1
Because Buck was convicted of aggravated offenses under
§ 2114(a), we have no occasion to address whether the basic offense is
further divisible, too.
UNITED STATES V. BUCK 13
aggravating element of placing the mail carrier’s life in
jeopardy by the use of a dangerous weapon.
The second step is to determine whether this divisible
offense of conviction satisfies § 924(c)(3)(A)’s elements
clause as a categorical matter. See id. at 739. It does. To
fall within the elements clause, the predicate offense must be
a felony and have “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). The
requirement of “physical force” means “violent physical
force—‘that is, force capable of causing physical pain or
injury to another person.’” United States v. Gutierrez, 876
F.3d 1254, 1256 (9th Cir. 2017) (per curiam) (quoting
Johnson, 559 U.S. at 140). “The phrase ‘against another,’
when modifying the ‘use of force,’ demands that the
perpetrator direct his action at, or target, another individual,”
which means that predicate crimes that allow a conviction
for merely reckless conduct do not fall within the elements
clause. Borden, 141 S. Ct. at 1825 (plurality opinion)
(interpreting the analogous elements clause in the Armed
Career Criminal Act). But predicate crimes that require
purposeful or knowing acts (and that meet the other
requirements of the elements clause) are sufficient. Id. at
1826 (plurality opinion).
For Buck’s offense of conviction, the government was
required to prove that Buck (1) “assault[ed]”; (2) “any
person having lawful charge, control, or custody of any mail
matter or of any money or other property of the United
States”; (3) “with intent to rob, steal, or purloin such mail
matter, money, or other property of the United States”; and
(4) in the process put the life of the person having custody
of the mail “in jeopardy by the use of a dangerous weapon.”
18 U.S.C. § 2114(a).
14 UNITED STATES V. BUCK
Quite plainly, this offense requires the use of “violent
force,” meaning “force capable of causing physical pain or
injury to another person.” Gutierrez, 876 F.3d at 1256
(citation omitted). The “use of a dangerous weapon,”
especially when deployed to put the victim’s life in jeopardy,
reflects force that is capable of causing death or serious
injury. As we have explained, “even the least touching with
a deadly weapon or instrument is violent in nature.” United
States v. Guizar-Rodriguez, 900 F.3d 1044, 1046 (9th Cir.
2018) (quoting United States v. Grajeda, 581 F.3d 1186,
1192 (9th Cir. 2009)) (considering the effectively identical
elements clause in 18 U.S.C. § 16(a) and concluding that
assault with a deadly weapon under Nevada law was a crime
of violence).
We therefore agree with the Sixth Circuit’s explanation
for why aggravated postal robbery through use of a
dangerous weapon under § 2114(a) meets the “force”
requirement: “Both assault and robbery require at least some
force or threatened use of force, and the use of a dangerous
weapon to put the victim’s life in jeopardy transforms the
force into violent physical force.” Knight, 936 F.3d at 500;
see also Enoch, 865 F.3d at 581 (holding, as to the
aggravated offense in § 2114(a), that “force capable of
wounding another or putting the life of another in jeopardy
is a force that is capable of causing injury to another person
and therefore qualifies as a crime of violence”).
This is consistent with our longstanding interpretation of
both § 2114(a) and analogous statutory language in
neighboring 18 U.S.C. § 2113(d), which prohibits armed
bank robbery. In the case of the latter, we have held that
“put[ting] in jeopardy the life of any person by the use of a
dangerous weapon or device” requires “‘a holdup involving
the use of a dangerous weapon actually so used during the
UNITED STATES V. BUCK 15
robbery that the life of the person being robbed is placed in
an objective state of danger.’” United States v. Coulter,
474 F.2d 1004, 1005 (9th Cir. 1973) (quoting Wagner v.
United States, 264 F.2d 524, 530 (9th Cir. 1959)); see also
United States v. Bain, 925 F.3d 1172, 1177 (9th Cir. 2019)
(explaining that in Coulter, “we imputed Wagner’s
‘objective state of danger’ standard to § 2113(d)’s ‘put[ting]
in jeopardy the life of any person’ element”).
The same interpretation applies to § 2114(a)’s life-in-
jeopardy element. See United States v. Hudson, 564 F.2d
1377, 1380 (9th Cir. 1977) (applying Wagner to § 2114 and
noting that “to place lives in jeopardy by the use of a
dangerous weapon mean[s] more than merely subjecting the
victims to force and fear,” as the test “is an objective one,
requiring actual danger”). Because the life-in-jeopardy
element in § 2114(a) requires the use of a dangerous weapon
in such a way as to place a mail carrier in an objective, actual
state of danger, such an offense necessarily requires the use,
attempted use, or threatened use of violent physical force.
Indeed, we have already recognized that § 2113(d) is a crime
of violence under the elements clause of § 924(c)(3). United
States v. Watson, 881 F.3d 782, 786 (9th Cir. 2018) (per
curiam). Thus, the decisions Buck cites addressing the
meaning of the statutory term “use” in other contexts, see
Bailey v. United States, 516 U.S. 137 (1995); United States
v. Stewart, 779 F.2d 538 (9th Cir. 1985); United States v.
Torres-Medina, 935 F.2d 1047 (9th Cir. 1991), are
inapposite when we have interpreted §§ 2113(d) and
2114(a)’s life-in-jeopardy elements to require conduct that
fits within the generic definition of a crime of violence. 2
2
United States v. Martinez-Jimenez, 864 F.2d 664 (9th Cir. 1989),
in which we affirmed a conviction under § 2113(d) when the defendant
16 UNITED STATES V. BUCK
Buck also argues that § 2114(a) is not a crime of violence
because it permits a conviction for merely reckless conduct.
See Borden, 141 S. Ct. at 1821–22 (plurality opinion). That
is incorrect. Buck’s jury instructions mirrored the relevant
language in § 2114(a), and neither the instructions nor
§ 2114(a) contain any suggestion that mere recklessness
would suffice.
used a fake gun that appeared genuine, does not require a different result
here. In Martinez-Jimenez, we concluded that like an unloaded gun, a
toy gun could qualify as a “dangerous weapon” under § 2113(d) because
“the dangerousness of a device used in a bank robbery is not simply a
function of its potential to injure people directly.” Id. at 666. The toy
gun thus “evidence[d] [the offender’s] apparent ability to commit an
assault.” Id. at 667.
Our conclusion in Martinez-Jimenez followed directly from the
Supreme Court’s decision in McLaughlin v. United States, 476 U.S. 16(1986), which held that an unloaded gun qualified as a “dangerous
weapon” under § 2113(d) because “the display of a gun instills fear in
the average citizen; as a consequence, it creates an immediate danger that
a violent response will ensue.” Id. at 17–18 (footnote omitted). As the
Seventh Circuit has explained, following McLaughlin “[a]ny use of a
dangerous weapon that qualifies as an assault (by creating reasonable
fear in victims) would therefore almost always put lives in jeopardy”
under § 2113(d). United States v. Smith, 103 F.3d 600, 605 (7th Cir.
1996); see also United States v. Benson, 918 F.2d 1, 4 (1st Cir. 1990)
(explaining that a defendant’s use of a “mock gun” during a bank robbery
“could reasonably be expected to instill fear in the teller, creating an
immediate danger that a violent response would be forthcoming, which
would put in jeopardy the lives of the teller and other persons at the
robbery scene” (citation omitted)). Properly considered in light of
McLaughlin, our analysis in Martinez-Jimenez is fully consistent with
§ 2113(d) requiring the offender to place the victim in an actual,
“objective state of danger,” Coulter, 474 F.2d at 1005, because others
“must confront the risk that a replica or simulated gun creates before
knowing that it presents no actual threat.” Martinez-Jimenez, 864 F.2d
at 668.
UNITED STATES V. BUCK 17
Instead, § 2114(a) requires intentional wrongdoing.
Buck’s aggravated assault offense of conviction punishes a
person who “with intent to rob, steal, or purloin . . . mail
matter . . . puts [the victim’s] life in jeopardy by the use of a
dangerous weapon.” (emphasis added). The intent
requirement in the aggravated offense extends not only to the
robbery but also to the use of the dangerous weapon. See
Torres v. Lynch, 578 U.S. 452, 467 (2016) (“In general,
courts interpret criminal statutes to require that a defendant
possess a mens rea, or guilty mind, as to every element of an
offense.”); United States v. Sua, 307 F.3d 1150, 1154 (9th
Cir. 2002) (“Traditionally, the mens rea of a crime extends
to each element of that crime.”).
Interpreting § 2114(a) to require the intentional use of a
dangerous weapon is also consistent with how we have
interpreted the identical language in § 2113(d). It is well-
settled that § 2113(d) requires “that ‘the robber knowingly
made one or more victims at the scene of the robbery aware
that he had a gun, real or not.’” United States v. Henry,
984 F.3d 1343, 1358 (9th Cir. 2021) (quoting United States
v. McDuffy, 890 F.3d 796, 799 (9th Cir. 2018)); see also
United States v. Odom, 329 F.3d 1032, 1035 (9th Cir. 2003)
(same). Similarly, to be convicted of aiding and abetting an
aggravated robbery under § 2113(d), we have held that “the
government must first show that the defendant knowingly
and intentionally aided and abetted the underlying offense of
unarmed bank robbery and then show that the defendant
knowingly and intentionally aided the commission of the
aggravating element: assaulting a person or putting a life in
jeopardy before or during the commission of that
aggravating element.” United States v. Dinkane, 17 F.3d
1192, 1197 (9th Cir. 1994).
18 UNITED STATES V. BUCK
Under our precedents, our interpretation of § 2113(d)
applies equally to § 2114(a). See, e.g., Hudson, 564 F.2d
at 1380 n.2 (“Cases decided under either of these statutes
have long been authority for decisions arising under the
other.”); United States v. Crawford, 576 F.2d 794, 800 (9th
Cir. 1978) (per curiam) (explaining that while certain cases
“dealt primarily with provisions of 18 U.S.C. § 2113 . . . the
same rule and rationale should apply to convictions under
§ 2114”). Thus, to stand convicted of the aggravated life-in-
jeopardy offense under § 2114(a), merely reckless conduct
is insufficient.
We therefore join every circuit to have addressed the
question—the Fourth, Fifth, Sixth, Seventh, and Eleventh—
in holding that an offender who assaults a mail carrier with
intent to steal mail, while placing the mail carrier’s life in
jeopardy by the use of a dangerous weapon, commits a crime
of violence under § 924(c)(3)(A). See, e.g., Bryant, 949 F.3d
at 182 (“[T]he aggravated offense contained in § 2114(a) . . .
is categorically a crime of violence.”); United States v.
Castro, 4 F.4th 345, 352 (5th Cir. 2021) (holding that an
offender who was “convicted of and sentenced for putting
the lives of his victims in jeopardy by using a handgun” had
“easily satisfie[d] the elements clause”); Knight, 936 F.3d
at 501 (“[T]he aggravated offense of 18 U.S.C. § 2114(a) is
a crime of violence.”); Enoch, 865 F.3d at 581 (“[I]t is
beyond question that a robbery that puts a person’s life in
jeopardy by the use of a dangerous weapon is a violent
crime.” (internal citation omitted)); In re Watt, 829 F.3d
1287, 1290 (11th Cir. 2016) (“[T]he jury had to have found
that [petitioner] assaulted the victim and that her life was put
UNITED STATES V. BUCK 19
in jeopardy, which satisfies the elements clause.” (quotations
and alterations omitted)). 3
AFFIRMED.
3
We have no occasion to consider here whether the other divisible
aggravated offenses in § 2114(a)—wounding a mail carrier or
committing a subsequent § 2114(a) offense—would also categorically
qualify as crimes of violence. We also reject Buck’s request to expand
his certificate of appealability to address whether the federal aiding and
abetting statute, 18 U.S.C. § 2, is a crime of violence because Buck has
not made a “substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). Buck did not raise his argument about aiding and abetting below,
and so forfeited it. See Sandoval v. Cnty. of Sonoma, 912 F.3d 509, 518
(9th Cir. 2018). Regardless, we have repeatedly rejected attacks on
§ 924(c) convictions predicated on aiding-and-abetting convictions
because defendants found guilty of aiding and abetting are liable as
principals under § 2. See Henry, 984 F.3d at 1355–56 (9th Cir. 2021)
(citing cases).