943 F.3d 1236
9th Cir.2019Background
- Michael Burke entered a Walgreens, pointed a gun at an employee, demanded and took ~900 OxyContin pills.
- Burke led police on a chase, fled on foot, and was later arrested.
- He pleaded guilty to armed robbery involving controlled substances (18 U.S.C. § 2118(c)(1)) and to using a firearm during a crime of violence (18 U.S.C. § 924(c)(1)(A)); district court imposed consecutive sentences.
- Burke filed a § 2255 collateral attack arguing his § 924(c) conviction was invalid because the predicate offense (§ 2118(c)(1)) is not a "crime of violence" (he focused on the "intimidation" alternative).
- The district court denied relief but granted a certificate of appealability; the Ninth Circuit reviewed whether § 2118(c)(1) qualifies under the § 924(c)(3)(A) elements clause (the Supreme Court had invalidated the residual clause in Davis, so only the elements clause applied).
- The Ninth Circuit, relying on its prior decisions about parallel statutes, concluded "intimidation" necessarily involves threatened violent physical force and affirmed that § 2118(c)(1) is a crime of violence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether armed robbery involving controlled substances (§ 2118(c)(1)) is a "crime of violence" under § 924(c)(3)(A). | Burke: the "intimidation" alternative can be nonviolent and thus does not require threatened use of violent physical force. | Government: under Ninth Circuit precedent, the "intimidation" alternative necessarily involves putting a reasonable person in fear of bodily harm—i.e., threatened violent physical force. | Affirmed: § 2118(c)(1) is a crime of violence under the elements clause of § 924(c)(3)(A). |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (elements clause requires violent physical force capable of causing pain or injury)
- United States v. Davis, 139 S. Ct. 2319 (2019) (residual clause of § 924(c) is unconstitutionally vague)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (categorical-approach guidance for comparing elements of offenses)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach focuses on least-culpable conduct)
- United States v. Gutierrez, 876 F.3d 1254 (9th Cir. 2017) (carjacking "by intimidation" requires threatened use of violent physical force)
- United States v. Watson, 881 F.3d 782 (9th Cir. 2018) (bank robbery "by intimidation" similarly involves threatened violent physical force)