Mario Kelbia ARAZOLA-GALEA, Petitioner, v. UNITED STATES of America, Respondent.
No. 16-73574
United States Court of Appeals, Ninth Circuit.
December 12, 2017
876 F.3d 1257
Submitted November 15, 2017 * San Francisco, California
Cir. 2017); United States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016). The Fourth and Fifth Circuits construed “intimidation” in the federal carjacking statute to mean the same thing as its counterpart in the federal bank robbery statute.
We agree with the analysis of our sister circuits. We, too, have held that “intimidation” as used in the federal bank robbery statute requires that a person take property “in such a way that would put an ordinary, reasonable person in fear of bodily harm,” which necessarily entails the “threatened use of physical force.” United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990) (citation omitted). As a result, in our court, too, federal bank robbery constitutes a crime of violence. Id. We have not addressed in a published decision whether Selfa‘s holding remains sound after Johnson, but we think it does. A defendant cannot put a reasonable person in fear of bodily harm without threatening to use “force capable of causing physical pain or injury.” Johnson, 559 U.S. at 140, 130 S.Ct. 1265; see United States v. Castleman, — U.S. —, 134 S.Ct. 1405, 1417, 188 L.Ed.2d 426 (2014) (Scalia, J., concurring) (bodily injury necessarily involves the use of violent force). Bank robbery by intimidation thus requires at least an implicit threat to use the type of violent physical force necessary to meet the Johnson standard.
We see no reason to interpret the term “intimidation” in the federal carjacking statute any differently. To be guilty of carjacking “by intimidation,” the defendant must take a motor vehicle through conduct that would put an ordinary, reasonable person in fear of bodily harm, which necessarily entails the threatened use of violent physical force. It is particularly clear that “intimidation” in the federal carjacking statute requires a contemporaneous threat to use force that satisfies Johnson because the statute requires that the defendant act with “the intent to cause death or serious bodily harm.”
AFFIRMED.
Tara K. Hoveland, South Lake Tahoe, California, for Petitioner.
Karla Hotis Delord, Assistant United States Attorney; Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A. Strange, Acting United States Attorney; United States Attorney‘s Office, Phoenix, Arizona; for Respondent.
Before: JOHNNIE B. RAWLINSON and JAY S. BYBEE, Circuit Judges, and WILLIAM E. SMITH,** Chief District Judge.
OPINION
RAWLINSON, Circuit Judge:
Mario Arazola-Galea is a native and citizen of Honduras who has been living in the United States since at least 2000. In 2013, Arazola-Galea was arrested by border patrol agents in Arizona and ordered detained on a felony complaint. Arazola-Galea pled guilty to an Information charging him with re-entry of a previously removed alien in violation of
Arazola-Galea timely filed a direct appeal, which this Court dismissed based on the valid appellate waiver in Arazola-Galea‘s plea agreement. Arazola-Galea then filed a motion to vacate the sentence under
Months later, Arazola-Galea filed the present motion for authorization to file a second or successive habeas petition. Arazola-Galea argues that, in light of the Supreme Court‘s holding in Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), the sentencing enhancement applied to his Colorado conviction for possession of a controlled substance was improper because his conviction was for an offense broader than the generic offense described in the federal definition of a drug trafficking offense in
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a petitioner may file a second or successive petition for a writ of habeas corpus if we certify that the claim is based upon “[1] a new rule, [2] of constitutional law, [3] made retroactive to cases on collateral review by the Supreme Court, [4] that was previously unavailable.”
The sole issue we must decide is whether Arazola-Galea‘s
We disagree. Mathis does not establish a new rule of constitutional law; rather, it clarifies application of the “categorical” analysis to the Armed Career Criminal Act (ACCA). See Mathis, 136 S.Ct. at 2251 (resolving the case on the basis of the Court‘s “longstanding principles,” and explaining that Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) “set out the essential rule governing ACCA cases more than a quarter century ago“). Our subsequent decisions have confirmed the notion that Mathis is a clarification of existing rules rather than a new rule itself. See, e.g., United States v. Martinez-Lopez, 864 F.3d 1034, 1039 (9th Cir. 2017) (”Mathis did not change the rule stated in Descamps [v. United States, 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013)]; it only reiterated that the Supreme Court meant what it said when it instructed courts to compare elements.“); United States v. Robinson, 869 F.3d 933, 936 (9th Cir. 2017) (“To determine whether a defendant‘s prior conviction is a crime of violence under the Guidelines, we apply the categorical approach first outlined in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and later clarified in [Descamps] and [Mathis]. ...“).
We now join our sister circuits in definitively holding that Mathis did not establish a new rule of constitutional law. See Washington v. United States, 868 F.3d 64, 66 (2d Cir. 2017) (“[A]lthough the Mathis Court noted that its ACCA [Armed Career Criminal Act] interpretation had been based in part on constitutional concerns, ... those concerns did not reflect a new rule, for Taylor set out the essential rule governing ACCA cases more than a quarter century ago.“) (citation and internal quotation marks omitted); In re Lott, 838 F.3d 522, 523 (5th Cir. 2016) (recognizing that Mathis did not “set forth new rules of constitutional law that have been made retroactive to cases on collateral review“) (citations omitted); In re Conzelmann, 872 F.3d 375, 376-77 (6th Cir. 2017) (same); Dawkins v. United States, 829 F.3d 549, 551 (7th Cir. 2016) (explaining that Mathis “did not announce” a rule of constitutional law; “it is a case of statutory interpretation“); In re Hernandez, 857 F.3d 1162, 1164 (11th Cir. 2017) (same).
Arazola-Galea‘s application for authorization to file a second or successive habeas petition is DENIED.