923 F.3d 1192
9th Cir.2019Background
- Mario Fultz was convicted (1994) of two counts of robbery on a government reservation (18 U.S.C. § 2111) and two counts of using/carrying a firearm during a crime of violence (18 U.S.C. § 924(c)(1)); he received consecutive mandatory minimums that produced a multi-decade sentence.
- Fultz filed a second or successive § 2255 motion after Johnson v. United States (2015), arguing his § 924(c) enhancements rested on the statute’s residual clause and are void for vagueness under Johnson II.
- The district court denied relief, concluding § 2111 robbery qualifies as a “crime of violence” under the elements/force clause of § 924(c)(3)(A); it nonetheless granted a certificate of appealability.
- On appeal, the Ninth Circuit considered whether § 2111 robbery (which criminalizes robbery “by force and violence, or by intimidation”) categorically requires the use, attempted use, or threatened use of physical force.
- The court applied the categorical approach and relied on prior Ninth Circuit decisions interpreting similar federal robbery/carjacking statutes to determine that intimidation-based robberies meet the Johnson I requirement of violent physical force.
Issues
| Issue | Fultz’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether 18 U.S.C. § 2111 robbery is a “crime of violence” under the elements clause (§ 924(c)(3)(A)) | § 2111 can be violated by minimal or de minimis force (e.g., a “snatch”) and thus does not categorically require violent physical force | § 2111 uses the same force language as statutes already held categorical crimes of violence (e.g., § 2113, § 2119); intimidation implies an implicit threat of violent force | § 2111 robbery is categorically a “crime of violence” under the elements/force clause; Fultz is not entitled to relief under Johnson II |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (interpreting “physical force” in the elements/force clause)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating ACCA residual clause as void for vagueness)
- Welch v. United States, 136 S. Ct. 1257 (2016) (holding Johnson II retroactive to cases on collateral review)
- Taylor v. United States, 495 U.S. 575 (2000) (establishing the categorical approach)
- Begay v. United States, 553 U.S. 137 (2008) (categorical approach and definition constraints)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach and least-acts analysis)
- United States v. Gutierrez, 876 F.3d 1254 (9th Cir. 2017) (holding § 2119 carjacking is a crime of violence; intimidation implies threat of violent physical force)
- United States v. Selfa, 918 F.2d 749 (9th Cir. 1990) (concluding bank robbery is a crime of violence)
- United States v. Watson, 881 F.3d 782 (9th Cir. 2018) (reaffirming bank robbery-by-intimidation meets force-clause standard post-Johnson I)
- United States v. Goldtooth, 754 F.3d 763 (9th Cir. 2014) (discussed but distinguished; convictions vacated on evidentiary grounds rather than force-level holdings)