United States v. Marcus Watson , 881 F.3d 782 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF No. 16-15357
AMERICA,
Plaintiff-Appellee, D.C. Nos.
1:15-cv-00313-DKW-KSC
v. 1:15-cv-00390-DKW-BMK
1:14-cr-00751-DKW
MARCUS KALANI
WATSON, AKA Kiki
Seui; ROGUSSIA EDDIE OPINION
ALLEN DANIELSON,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted September 13, 2017
San Francisco, California
Filed February 1, 2018
Before: J. Clifford Wallace and Paul J. Watford, Circuit
Judges, and W. Louis Sands,* District Judge.
Per Curiam Opinion
*
The Honorable W. Louis Sands, United States District Judge for the
Middle District of Georgia, sitting by designation.
2 UNITED STATES V. WATSON
SUMMARY**
28 U.S.C. § 2255The panel affirmed the district court’s denial of two
defendants’ motions under 28 U.S.C. § 2255 challenging the
validity of their convictions for carrying a firearm during a
crime of violence in violation of 18 U.S.C. § 924(c)(1)(A).
The defendants argued that their convictions are unlawful
because the predicate offense—armed bank robbery—no
longer qualifies as a crime of violence.
The panel held that bank robbery “by force and violence,
or by intimidation,” 18 U.S.C. § 2113(a), is a crime of
violence under the force clause of 18 U.S.C. § 924(c), and
that because armed bank robbery under 18 U.S.C. § 2113(a)
and (d) cannot be based on conduct that involves less force
than unarmed bank robbery requires, armed bank robbery
under § 2113(a) and (d) qualifies as a crime of violence under
§ 924(c) as well.
**
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. WATSON 3
COUNSEL
Peter C. Wolff Jr. (argued), Federal Public Defender, Office
of the Federal Public Defender, Honolulu, Hawaii; Alvin
Nishimura, Kaneohe, Hawaii; for Defendants-Appellants.
John P. Taddei (argued), Attorney, Appellate Section; Sung-
Hee Suh, Deputy Assistant Attorney General; Leslie R.
Caldwell, Assistant Attorney General; Criminal Division,
United States Department of Justice, Washington, D.C.;
Thomas J. Brady, Assistant United States Attorney; United
States Attorney’s Office, Honolulu, Hawaii; for Plaintiff-
Appellee.
Mia Crager, Assistant Federal Defender; Heather E.
Williams, Federal Defender; Office of the Federal Public
Defender, Sacramento, California; David M. Porter,
Administrative Office of the United States Courts,
Washington, D.C.; for Amici Curiae Ninth Circuit Federal
Public and Community Defenders and the National
Association of Criminal Defense Lawyers.
4 UNITED STATES V. WATSON
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 Danielson 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).
UNITED STATES V. WATSON 5
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
(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, 136 S. Ct.
2243, 2248 (2016). Under this approach, the sole focus is on
6 UNITED STATES V. WATSON
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 (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
1
Section 2113(a) also prohibits entering a bank with intent to commit
a felony affecting the bank. 18 U.S.C. § 2113(a) (second paragraph).
Although that offense is not a crime of violence, it is irrelevant to our
analysis because it is divisible from the § 2113(a) bank robbery offense of
which Watson and Danielson were convicted. See United States v. Selfa,
918 F.2d 749, 752 n.2 (9th Cir. 1990).
UNITED STATES V. WATSON 7
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 that
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 (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. Watson and Danielson contend that a
defendant who negligently intimidated a victim could be
convicted of bank robbery because intimidation is defined
from a reasonable victim’s perspective. See Gutierrez,
8 UNITED STATES V. WATSON
876 F.3d at 1257. But a defendant may be convicted of bank
robbery only if the government proves that he at least
“possessed knowledge with respect to the . . . taking of
property of another by force and violence or intimidation.”
Carter v. United States, 530 U.S. 255, 268 (2000); see also
Ellison, 866 F.3d at 39. Thus, contrary to Watson and
Danielson’s contention, a defendant may not be convicted if
he only negligently intimidated the victim. Carter, 530 U.S.
at 269. The offense must at least involve the knowing use of
intimidation, which necessarily entails the knowing use,
attempted use, or threatened use of violent physical force.
The Ninth Circuit Federal Public and Community
Defenders and the National Association of Criminal Defense
Lawyers, as amici curiae, raise one additional argument.
They contend that even if bank robbery “by force and
violence, or by intimidation” is a crime of violence, the
statutory offense of bank robbery contained in § 2113(a) still
does not qualify as one. They argue that § 2113(a) prohibits
one indivisible offense of bank robbery with three alternative
means of committing it: (1) by force and violence; (2) by
intimidation; or (3) by extortion. And, they assert, the least
violent form of that offense—bank robbery by extortion—
does not qualify as a crime of violence. See Moncrieffe, 569
U.S. at 190–91.
Their argument fails because § 2113(a) does not contain
one indivisible offense. Instead, it contains at least two
separate offenses, bank robbery and bank extortion. See
United States v. Jennings, 439 F.3d 604, 612 (9th Cir. 2006);
see also United States v. Eaton, 934 F.2d 1077, 1079 (9th Cir.
1991); 9th Cir. Crim. Jury Instr. 8.162. Because § 2113(a) is
divisible with respect to these two offenses and Watson and
Danielson were convicted of the first offense, we need not
UNITED STATES V. WATSON 9
decide whether bank extortion qualifies as a crime of
violence.
Because bank robbery “by force and violence, or by
intimidation” is a crime of violence, so too is armed bank
robbery. A conviction for armed bank robbery requires proof
of all the elements of unarmed bank robbery. United States
v. Coleman, 208 F.3d 786, 793 (9th Cir. 2000); see 18 U.S.C.
§ 2113(d).2 Thus, an armed bank robbery conviction under
§ 2113(a) and (d) cannot be based on conduct that involves
less force than an unarmed bank robbery requires. For that
reason, armed bank robbery under § 2113(a) and (d) qualifies
as a crime of violence under § 924(c) as well.
AFFIRMED.
2
Section 2113(d) provides:
Whoever, in committing, or in attempting to commit,
any offense defined in subsections (a) and (b) of this
section, assaults any person, or puts in jeopardy the life
of any person by the use of a dangerous weapon or
device, shall be fined under this title or imprisoned not
more than twenty-five years, or both.