Joshua Ward v. United States ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA ALLEN WARD, No. 17-35563
Petitioner-Appellant,
D.C. No.
v. 1:16-cv-00282-
EJL
UNITED STATES OF AMERICA,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted October 9, 2018
Submission Vacated October 10, 2018
Resubmitted September 3, 2019
Seattle, Washington
Filed September 3, 2019
Before: Richard A. Paez and Carlos T. Bea, Circuit Judges,
and C. Ashley Royal, * District Judge.
Opinion by Judge Paez
*
The Honorable C. Ashley Royal, United States District Judge for
the Middle District of Georgia, sitting by designation.
2 WARD V. UNITED STATES
SUMMARY **
28 U.S.C. § 2255
Affirming a sentence, the panel held that a Minnesota
conviction for aiding and abetting simple robbery qualifies
as a predicate violent felony under the Armed Career
Criminal Act’s force clause because the minimum force
required to sustain a Minnesota simple robbery includes the
amount of force necessary to overcome a victim’s resistance.
The panel wrote that this court’s prior distinction
between “substantial” and “minimal” force in the ACCA
robbery context cannot be reconciled with the Supreme
Court’s holding in Stokeling v. United States, 139 S. Ct. 544
(2019).
COUNSEL
Melissa D. Winberg (argued), Federal Defender Services of
Idaho, Boise, Idaho, for Petitioner-Appellant.
Ann T. Wick (argued) and Syrena C. Hargrove, Assistant
United States Attorneys; Bart M. Davis, United States
Attorney; United States Attorney’s Office, Boise, Idaho; for
Respondent-Appellee.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
WARD V. UNITED STATES 3
OPINION
PAEZ, Circuit Judge:
Joshua Allen Ward challenges his mandatory sentence
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e). He argues on appeal that the district court
erroneously determined that his prior Minnesota state
conviction for aiding and abetting simple robbery under
Minn. Stat. Ann. § 609.24 is a “violent felony” under the
ACCA’s force clause. Because the minimum force required
to sustain a Minnesota simple robbery “includes the amount
of force necessary to overcome a victim’s resistance,”
Stokeling v. United States, 139 S. Ct. 544, 555 (2019), we
affirm.
I.
Ward was convicted in 2012 of one count of unlawful
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
The ACCA provides that a person who violates § 922(g)(1)
and who has “three previous convictions” for a “violent
felony” shall be imprisoned for a minimum of 15 years. 18
U.S.C. § 924(e)(1). Over Ward’s objection to his
designation as an “armed career criminal,” the district court
sentenced him to the 15-year mandatory minimum.
In 2015, the Supreme Court held that the ACCA’s
residual clause under § 924(e)(2)(B)(ii) was
unconstitutionally vague. See Johnson v. United States,
135 S. Ct. 2551, 2555–57 (2015) (“Johnson II”).
Subsequently, in Welch v. United States, the Court held that
Johnson II applies retroactively to cases on collateral review.
136 S. Ct. 1257, 1268 (2016).
4 WARD V. UNITED STATES
In 2016, Ward filed a motion in the district court
pursuant to 28 U.S.C. § 2255(a) to vacate his sentence based
on Johnson II. He argued that his prior convictions for
burglary, aiding and abetting simple robbery, second-degree
assault, and aggravated assault, fell under the invalidated
residual clause of the ACCA and that he was therefore
wrongfully sentenced. The government conceded that
Ward’s two Minnesota burglary convictions did not qualify
as violent felonies under 18 U.S.C. § 924(e) but maintained
that Ward’s three other convictions qualified as predicate
ACCA offenses. The district court agreed and denied
Ward’s motion to vacate his sentence. The district court
granted Ward’s motion for a certificate of appealability
based on “varying interpretations by other courts” regarding
his conviction for aiding and abetting Minnesota simple
robbery. Ward timely appealed.
II.
We have jurisdiction under 28 U.S.C. §§ 2253(c) and
2255(d). The limited issue before us, which we review de
novo, is whether Ward’s Minnesota conviction for aiding
and abetting simple robbery qualifies as a predicate violent
felony for sentencing purposes under the ACCA. See United
States v. Parnell, 818 F.3d 974, 978 (9th Cir. 2016).
III.
The ACCA defines “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year
. . . that (i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or (ii) is burglary, arson, or extortion, [or] involves
use of explosives . . . .” 18 U.S.C. § 924(e)(2)(B). Prior to
Johnson II, 135 S. Ct. at 2556–57, crimes that “otherwise
involve conduct that presents a serious potential risk of
WARD V. UNITED STATES 5
physical injury to another” also constituted “violent
felonies” under 18 U.S.C. § 924(e)(2)(B)(ii)—known as the
“residual clause.” The Supreme Court, however, invalidated
the ACCA residual clause as void for vagueness. See
Johnson II, 135 S. Ct. at 2555, 2563. Thus, Ward’s prior
conviction for simple robbery is a predicate offense only if
it falls under either the “force clause” (also known as the
“elements clause”) of § 924(e)(2)(B)(i) or the “enumerated
offenses clause” of § 924(e)(2)(B)(ii). The parties agree that
the only issue we must decide is whether Minnesota simple
robbery categorically involves “physical force” within the
meaning of the ACCA’s force clause. 1
A.
We apply the familiar categorical approach, as outlined
in Taylor v. United States, 495 U.S. 575 (1990), to determine
whether a state offense is a violent felony under the ACCA’s
force clause. See, e.g., Parnell, 818 F.3d at 978. In doing
so, we ask “whether the conduct proscribed by the statute
necessarily involves ‘the use, attempted use, or threatened
use of physical force against the person of another.’” United
States v. Geozos, 870 F.3d 890, 898 (9th Cir. 2017)
(emphasis added) (quoting 18 U.S.C. § 924(e)(2)(B)(i)).
Prior to Johnson II, the Supreme Court held that “in the
context of a statutory definition of ‘violent felony,’ the
1
In his supplemental post-argument brief, Ward raised a new claim
regarding the mens rea required in Minnesota’s aiding and abetting
statute. Although “parties are not limited to the precise arguments they
made below,” Thompson v. Runnels, 705 F.3d 1089, 1098 (9th Cir. 2013)
(quoting Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379
(1995)), this appears to raise a new claim rather than a new argument,
see United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004)
(“[I]t is claims that are deemed waived or forfeited, not arguments.”).
We therefore consider the claim waived and do not address it.
6 WARD V. UNITED STATES
phrase ‘physical force’ means violent force—that is, force
capable of causing physical pain or injury to another.”
Johnson v. United States, 559 U.S. 133, 140 (2010)
(“Johnson I”). Thus, under Johnson I, the force element of
a predicate conviction must entail more than just the
“slightest offensive touching.” Id. at 139–41.
Applying Johnson I, we have held that “‘violent’ force
must be ‘substantial’ and ‘strong,’” and that “[t]he mere
potential for some trivial pain or slight injury will not
suffice.” United States v. Walton, 881 F.3d 768, 773 (9th
Cir. 2018) (quoting Johnson I, 559 U.S. at 140); see id. at
774 (holding that Alabama armed robbery is not a violent
felony under the ACCA); see also United States v. Molinar,
876 F.3d 953 (9th Cir. 2017), amended, 881 F.3d 1064,
1069–70 (9th Cir. 2018) (holding that Arizona armed
robbery is not a crime of violence under the Sentencing
Guideline’s force clause). This approach diverges from the
one adopted by several of our sister circuits, like the Seventh
and Eighth Circuits, which look to Justice Scalia’s
concurrence in United States v. Castleman, 572 U.S. 157,
173–84 (2014), to suggest that “any number of forceful acts
beyond simple touching” may “qualify as violent force in the
sense that they have the capacity to inflict physical pain, if
not concrete physical injury, upon the victim.” United States
v. Jennings, 860 F.3d 450, 457 (7th Cir. 2017); see also
United States v. Pettis, 888 F.3d 962, 966 (8th Cir. 2018)
(reaffirming that physical force under the ACCA
encompasses “a jostle accompanied by a forceful pull—like
[a] ‘blind-side bump, brief struggle, and yank’ . . . [and]
‘involves a use of force that is capable of inflicting pain’”).
Recently, the Supreme Court clarified that for robbery
offenses, the “physical force” element under the ACCA
“includes the amount of force necessary to overcome a
WARD V. UNITED STATES 7
victim’s resistance.” Stokeling, 139 S. Ct. at 555. Thus,
Florida robbery—defined as the taking of property with the
use of force to overcome the resistance by the victim—
qualifies as an ACCA violent felony. Id. at 549, 555.
In reaching this conclusion, the Court relied on the
common law understanding of robbery as “an unlawful
taking . . . [which] involved ‘violence.’” Id. at 550. It
highlighted a few illustrative examples of common law
robbery: “it was robbery ‘to seize another’s watch or purse,
and use sufficient force to break a chain or guard by which
it is attached to his person, or to run against another, or
rudely push him about, for the purpose of diverting his
attention and robbing him.’” Id. “Similarly, it was robbery
to pull a diamond pin out of a woman’s hair when doing so
tore away hair attached to the pin.” Id. In common law
robbery, the core concern was whether the defendant applied
force—any degree of force—that was sufficient to overcome
a victim’s resistance, “however slight.” Id. at 551. The
Court then concluded that Congress adopted the common
law meaning of “force” for robbery in the force clause of the
ACCA. Id.; see also id. at 551–52 (“By replacing robbery
as an enumerated offense with a clause that has ‘force’ as its
touchstone, Congress made clear that ‘force’ retained the
same common-law definition that undergirded the original
definition of robbery adopted a mere two years earlier.”).
This conclusion was “buttressed” by the fact that a
significant majority of states defined nonaggravated robbery
as requiring force that overcomes a victim’s resistance. Id.
at 552.
Notably, the Court explained that its holding regarding
Florida robbery was consistent with Johnson I, which
addressed common law misdemeanor battery. Id. (citing
Johnson I, 559 U.S. at 138). The Court differentiated the
8 WARD V. UNITED STATES
force necessary for common law battery from that necessary
for common law robbery. See id. at 552–53. While the
former “does not require resistance or even physical aversion
on the part of the victim,” the latter involves
“overpower[ing] a victim’s will” and necessarily involves a
physical confrontation and struggle.” Id. at 553.
B.
With Stokeling in mind, we turn to Minnesota simple
robbery, which is defined as:
Whoever, having knowledge of not being
entitled thereto, takes personal property from
the person or in the presence of another and
uses or threatens the imminent use of force
against any person to overcome the person’s
resistance or powers of resistance to, or to
compel acquiescence in, the taking or
carrying away of the property is guilty of
robbery.
Minn. Stat. Ann. § 609.24 (1986). The statute is satisfied
when “the use of force or threats precede[s] or
accompan[ies] either the taking or the carrying away” of the
property “and that the force or threats be used to overcome
the victim’s resistance or compel his acquiescence . . . .” 2
State v. Kvale, 302 N.W.2d 650, 653 (Minn. 1981).
2
Ward does not argue, and we have found no cases holding, that
there is any difference between the force used to overcome a victim’s
resistance and force used to compel a victim’s acquiescence in the
context of Minnesota simple robbery. The Eighth Circuit also appears
to have made no such distinction between these two provisions in the
statute. See United States v. Libby, 880 F.3d 1011, 1015 (8th Cir. 2018).
WARD V. UNITED STATES 9
Under our pre-Stokeling case law, Minnesota simple
robbery would not be a violent felony under the ACCA’s
force clause because we differentiated between minimal and
substantial force, even when the minimal force involved was
sufficient to overcome a victim’s resistance. See Molinar,
881 F.3d at 1069–70 (holding that “a conviction for
robbery—or armed robbery—in Arizona does not require
the threat or use of Johnson-level force” where the “statutory
definition of ‘force’ has not been narrowed . . . other than by
clarifying that the force must be ‘intended to overpower the
party robbed’”); Geozos, 870 F.3d at 900–01 (holding that
Florida robbery under Fla. Stat. § 812.13, the same statute at
issue in Stokeling, is not an ACCA violent felony because
“the Florida statute requires that the victim resist the force
. . . [but does not] require[] that the force used be violent
force”).
Our prior distinction between “substantial” and
“minimal” force in the ACCA robbery context in such cases
as Molinar and Geozos cannot be reconciled with the
Supreme Court’s clear holding in Stokeling. 3 Compare
Geozos, 870 F.3d at 900 (“Under Florida law, then, a person
who engages in a non-violent tug-of-war with a victim over
the victim’s purse has committed robbery . . . [but]
[a]ccording to our precedent, such an act does not involve
3
Conversely, our precedent differentiating between intentional and
reckless or negligent conduct has not been affected by Stokeling. “[T]o
qualify as defining a violent felony, a state statute must require that the
physical force be inflicted intentionally, as opposed to recklessly or
negligently.” United States v. Lawrence, 627 F.3d 1281, 1284 (9th Cir.
2010) (emphasis added) (citing Fernandez-Ruiz v. Gonzales, 466 F.3d
1121, 1132 (9th Cir. 2006) (en banc)), overruled on other grounds by
Descamps v. United States, 570 U.S. 254 (2013); see also United States
v. Dixon, 805 F.3d 1193, 1197–98 (9th Cir. 2015).
10 WARD V. UNITED STATES
the use of violent force within the meaning of ACCA[.]”),
with Stokeling, 139 S. Ct. at 553 (“[T]he force necessary to
overcome a victim’s physical resistance is inherently
‘violent’ . . . .”). Thus, to the extent our precedent regarding
robberies is irreconcilable with Stokeling, those cases are
effectively overruled. 4 See Miller v. Gammie, 335 F.3d 889,
893 (9th Cir. 2003) (en banc) (“[W]here the reasoning or
theory of our prior circuit authority is clearly irreconcilable
with the reasoning or theory of intervening higher authority,
a three-judge panel should consider itself bound by the later
and controlling authority, and should reject the prior circuit
opinion as having been effectively overruled.”).
This case, therefore, presents a straightforward
application of Stokeling. Minnesota simple robbery is
defined as the use or threatened use of force “to overcome
the person’s resistance or powers of resistance . . . .” Minn.
Stat. Ann. § 609.24 (1986). The Minnesota Supreme Court
has unequivocally stated that “[a]lthough a simple purse
snatching usually constitutes theft, pushing or grabbing a
person during that theft may constitute simple robbery.”
4
Importantly, Stokeling made clear that force involved in
snatchings, where there is no resistance, is not sufficient to fall under the
ACCA’s force clause. 139 S. Ct. at 555 (differentiating between
Florida’s robbery statute and “[m]ere ‘snatching of property from
another’”); see also United States v. Fultz, 923 F.3d 1192, 1196 & n.2
(9th Cir. 2019) (noting that Stokeling does not reach conduct like
snatching). In several recent memorandum dispositions, we have also
recognized instances of force that did not fall within “the scope of the
elements clause as defined in Stokeling.” United States v. Lawrence,
758 F. App’x 624, 625 (9th Cir. 2019); see also Torres v. Whitaker,
752 F. App’x 512, 513 & n.1 (9th Cir. 2019). Thus, to whatever extent
the state statutes discussed in Molinar and other ACCA robbery cases
criminalize force more broadly than in Stokeling, those cases have not
been overruled. See Lawrence, 758 F. App’x at 625 (reaffirming United
States v. Strickland, 860 F.3d 1224 (9th Cir. 2017)).
WARD V. UNITED STATES 11
State v. Slaughter, 691 N.W.2d 70, 76 (Minn. 2005) (citing
State v. Nash, 339 N.W.2d 554, 557 (Minn. 1983)). Thus,
Minnesota’s statute is similar to the Florida robbery at issue
in Stokeling, which is also defined as the taking of property
with the use of force to overcome the victim’s resistance.
See 139 S. Ct. at 549, 555; see also Taylor v. United States,
926 F.3d 939, 941–42 (8th Cir. 2019) (reaffirming that
Minnesota simple robbery is an ACCA violent felony and
noting that “Minnesota’s simple robbery statute is virtually
indistinguishable from the Florida statute at issue in
Stokeling” because “[i]n both States, a mere ‘snatching’ of
property, without more, is not the level of force required”).
IV.
For the reasons above, we affirm the district court’s
denial of Ward’s motion to vacate his sentence.
AFFIRMED.