UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUVENILE FEMALE, Defendant-Appellant.
No. 07-50549
United States Court of Appeals, Ninth Circuit
May 27, 2009
566 F.3d 943
Before: Harry Pregerson, Dorothy W. Nelson and David R. Thompson, Circuit Judges.
D.C. No. CR-07-02437-IEG. Appeal from the United States District Court for the Southern District of California. Irma E. Gonzalez, District Judge Presiding. Argued and Submitted December 10, 2008—Pasadena, California.
Opinion by Judge Nelson
COUNSEL
Goerge D. Hardy, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
In 2007, Juvenile Female was found guilty of Juvenile Delinquency based on her violation of
FACTUAL AND PROCEDURAL BACKGROUND
On September 4, 2007, Border Patrol Agent Anthony Ponzio, who was stationed about a quarter of a mile away from the United States-Mexico border, heard a radio dispatch that a suspicious vehicle had been spotted. A few minutes later, he saw a white Chevrolet Impala idling on the side of the road. After finding that the license plate was registered to a rental car company that was frequently involved in illicit activities, Ponzio drove up to the Impala and asked the driver if he was lost. Juvenile Female (“JF“) was sitting in the passenger seat of the car.
Supervisory Border Patrol Agent Leo Miele ordered Ponzio to “clear the area” because he thought the Impala might be in the area to pick up narcotics. Miele then waited in a driveway about two-and-a-half miles down the road. After the Impala passed Miele‘s vehicle, he pulled up behind it. The driver pulled off to the side of the road and signaled for Miele to pass. Agent Miele indicated that the Impala ought to keep on driving. About three-and-a-half miles later, the Impala pulled over once more and signaled again for Miele to pass. At this point, Miele pulled up next to the car and identified himself as a Border Patrol agent. In doing so, he recognized the driver as someone he had arrested, in December 2005, for transporting about 500 pounds of marijuana in a disguised pick-up truck. The driver agreed to speak to Miele. Miele indicated a driveway where the car could pull over. The Impala did not stop, however, and Miele followed in pursuit.
Miele radioed other agents, including Border Patrol Agent Alexander Djokich, and notified them that he was following a suspected drug smuggler. The Impala eventually stopped and the driver fled, leaving the driver‘s side open. Miele chased the driver.
The first agent to reach the Impala was Djokich. He noticed JF moving inside the vehicle, and ran to the open door with his gun drawn. JF was climbing across the front seat. Djokich identified himself, and ordered her to exit the car. JF, however, was screaming and kicking towards him. A scuffle ensued, during which JF stabbed Djokich in the back of his left leg with a small knife.
On September 5, 2007, the United States Attorney for the Southern District of California (“the Government“) filed an Information charging JF with Juvenile Delinquency, in violation of
did knowingly and intentionally and forcibly assault, resist, oppose, impede and interfere with a person named in Title 18, United States Code, Section 1114, namely, United States Border Patrol Agent A. Djokich, in that defendant in an attempt to resist apprehension, kicked Agent A. Djokich and stabbed agent A. Djokich with a knife, a deadly and dangerous weapon, while Agent A. Djokich was engaged in the performance of his official duties; in violation of Title 18, U.S.C., Section 5032 and Title 18, U.S.C., Section 111(a) and (b).
The Government also filed a certification, pursuant to
The case then proceeded to trial. JF moved for a judgment of acquittal after submission of the Government‘s case, and again at the close of evidence, arguing that Agent Djokich was not engaged in an “official duty,” one of the elements of the offense. The District Court denied both motions. The court subsequently found that JF had committed an act of Juvenile Delinquency, and sentenced her to three years’ probation. JF then timely appealed to this court.
STANDARD OF REVIEW
“We generally review de novo a district court‘s assumption of jurisdiction.” United States v. Juvenile Male, 118 F.3d 1344, 1346 (9th Cir. 1997). “Whether or not . . . [an underlying offense] is a crime of violence is a question of statutory interpretation reviewed de novo.” Id. at 1350. A district court‘s ruling on a motion for a judgment of acquittal is also reviewed de novo. United States v. McNeil, 320 F.3d 1034, 1035 (9th Cir. 2003).
DISCUSSION
The government charged JF with violations of
(A) In general.—Whoever . . . forcibly assaults, resists, opposes, impels, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties . . . shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and in all other cases, be fined under this title or imprisoned not more than 8 years, or both.
(b) Enhanced penalty.—Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.
I. JURISDICTION OVER JUVENILE FEMALE
A juvenile alleged to have committed an act of juvenile delinquency . . . shall not be proceeded against in any court of the
United States unless the Attorney General, after investigation, certifies to the appropriate district court of the United States that . . . the offense charged is a crime of violence that is a felony . . . , and that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.
“Certification is a jurisdictional requirement.” United States v. Juvenile Male (Kenneth C.), 241 F.3d 684, 686 (9th Cir. 2001) (internal quotation marks omitted). JF argues that a violation of
A.
[1] When exercising jurisdiction over a juvenile, this Court follows what has been termed a “categorical approach” to determine whether an offense is a crime of violence. See Leocal v. Ashcroft, 543 U.S. 1, 8 (2004) (using a categorical approach to determine whether a crime was a crime of violence warranting deportation); United States v. David H., 29 F.3d 489, 494 (9th Cir. 1994); United States v. Baker, 10 F.3d 1374, 1393-94 (9th Cir. 1993), overruled on other grounds by United States v. Norby, 225 F.3d 1053 (9th Cir. 2000).
[2] Under the categorical approach, “the generic, rather than the particular, nature of the predicate offense is determinative in defining a crime of violence.” Baker, 10 F.3d at 1394 (internal quotations omitted). A crime “qualifies as a crime of violence . . . if and only if the full range of conduct covered by it falls within the meaning of that term.” Valencia-Gonzales v. Gonzales, 439 F.3d 1046, 1049 (9th Cir. 2006) (internal quotation marks omitted).
[3] We recently held that
[4] Unfortunately, “[t]he statute itself offers little guidance on the precise contours of the three separate offenses created by § 111.” United States v. Hathaway, 318 F.3d 1001, 1007 (10th Cir. 2003); see also Chapman, 528 F.3d at 1218 (“Section 111(a) is inartfully drafted.“). In Chapman, we held that “[v]iolations of the ‘simple assault’ provision constitute misdemeanors. Violations of the ‘all other cases’ or dangerous weapon or bodily harm provisions constitute felonies.” 528 F.3d at 1218 (internal citation omitted).
In differentiating between the two offenses described in section 111(a), “simple assaults” and “all other cases,” some of our sister circuits require physical contact, whereas others require physical contact or a similar aggravating factor, such as the intent to commit a murder or a serious felony.2 Id. at 1219. In Chapman, we declined to adopt a rule, and held that under either approach, “while a defendant could be charged with resisting, opposing, impeding, intimidating, or interfering, he could not be convicted unless his conduct also amounted to an assault.” Id. (emphasis added).
[5] The third offense, which is the one at issue in this case, was not specifically addressed in Chapman. Id. Our sister circuits, however, have held that section
bodily injury.” United States v. Vallery, 437 F.3d 626, 630 (7th Cir. 2006); see also United States v. Gagnon, 553 F.3d 1021, 1024 (6th Cir. 2009); Hathaway, 318 F.3d at 1007-09; United States v. Yates, 304 F.3d 818, 821 (8th Cir. 2002); United States v. McCulligan, 256 F.3d 97, 102 (3d Cir. 2001); United States v. Chestaro, 197 F.3d 600, 607-08 (2d Cir. 1999); United States v. Nunez, 180 F.3d 227, 233 (5th Cir. 1999). In light of these cases, the plain language of the statute, and our determination that “convictions under this statute require at least some form of assault,” Chapman, 528 F.3d at 1221, JF‘s argument that the third offense subsumes five other non-assaultive offenses, because it also lists those who resist, oppose, impede, intimidate, or interfere with designated officers, fails.
JF also argues that regardless of whether
B.
The appropriate question before us, therefore, is whether an “assault involving a deadly or dangerous weapon or resulting in bodily injury,” under
[6] Under
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and 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.
“In construing both parts of § 16, we cannot forget that we ultimately are determining the meaning of the term ‘crime of violence.’ The ordinary meaning of this term, combined with § 16‘s emphasis on the use of physical force against another person . . . suggests a category of violent, active crimes.” Leocal, 543 U.S. at 11.
There are two variants of this offense: (1) assault involving a deadly or dangerous weapon, and (2) assault resulting in bodily injury. “To constitute an assault, an action must be either a willful attempt to inflict injury upon the person of another, or . . . a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Chapman, 528 F.3d at 1219-20 (internal quotation marks omitted). This court also requires intent to assault. United States v. Spears, 631 F.2d 114, 117 n.5 (9th Cir. 1980). A deadly or dangerous weapon is “any object which, as used or attempted to be used, may endanger the life of or inflict great bodily harm on a person.” United States v. Sanchez, 914 F.2d 1355, 1358 (9th Cir. 1990) (internal quotation marks omitted).
Moreover, because the offense is a felony, section 16(b) also applies. See Chapman, 528 F.3d at 1218. Section 16(b) sweeps more broadly than section 16(a) because it encompasses offenses where a person merely disregards a risk that physical force will be used in commission of the offense. Leocal, 543 U.S. at 10-11. For the same reasons described above, the two variants on this crime will always involve a substantial risk that physical force against the person may be used, even if physical force is not an element of the offense.
[8] Thus, because JF was charged with a crime of violence, the District Court did not err in assuming jurisdiction over her.
II. A BORDER PATROL AGENT‘S STATUTORY AUTHORITY
To be guilty of juvenile delinquency, JF must have assaulted or resisted a federal officer who was “engaged in . . . the performance of official duties.” See
As federal officers, Border Patrol agents are limited to their statutory powers. Ortiz v. U.S. Border Patrol, 39 F. Supp. 2d 1321, 1326 (D.N.M. 1999) (“Border Patrol agents are not general law enforcement officers. Instead, . . . their authority and duties are circumscribed by statute and limited in scope.“); see also United States v. Santa Maria, 15 F.3d 879 (9th Cir. 1994); cf. United States v. Diamond, 471 F.2d 771, 773 (9th Cir. 1973) (“[C]ustoms agents are not general guardians of the public peace, as are state or local police. Their powers . . . to search and arrest persons are limited by statute.“). “To hold otherwise would grant Border Patrol agents unfettered discretion to investigate suspected violations of any and all cognizable criminal laws . . . ; it would, in effect, give to the Border Patrol the general police power that the Constitution reserves to the States.” United States v. Perkins, 166 F. Supp. 2d 1116, 1126 (W.D. Tex. 2001).
Although the parties do not dispute that Djokich stopped and attempted to arrest JF because of suspected drug activity, they do dispute the precise contours of the statutory grant of power to the Border Patrol.
Pursuant to
for any felony cognizable under the laws of the United States . . . if the officer or employee is performing duties relating to the enforcement of the immigration laws at the time of the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest.
[9] If Djokich was limited to the powers enumerated in
The DHS was created in 2003 by the Homeland Security Act of 2002 (“HSA“), Pub. L. No. 107-296, 116 Stat. 2135 (2003). Pursuant to the HSA, the DHS is an executive department whose mission is, among other things, to (1) “carry out all functions of entities transferred to the Department,” and (2) “monitor connections between illegal drug trafficking and terrorism . . . and otherwise contribute to efforts to interdict illegal drug trafficking.”
[10] The Border Patrol program was transferred from the INS to the Directorate for Border and Transportation Security (“DPTS“), a subset of the DHS,
The Government argues that, as a result, Border Patrol agents are also empowered to “stop, search, and examine . . . any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise . . . introduced into the United States in any manner contrary to law.”
It is true that there are no statutes or federal regulations that specifically empower Border Patrol agents to enforce customs laws.3 The agencies, however, were combined into the same department, and the purpose of the DHS was to create a “sin-
gle, unified structure, noting that today numerous Federal entities across the government are charged with responsibilities having to do with homeland security.” See H.R. Rep. 107-609(I), at 66 (2002), reprinted in 2002 U.S.C.C.A.N. 1352, 1356. “Different priorities and divergent policies coupled with various leadership structures, has led to inconsistent inspections and lapses of information. The Department of Homeland Security was established to unite the incoming agencies in the mission of protecting the homeland.” Department of Homeland Security, Border Reorganization Fact Sheet (2003), available at http:// www.dhs. gov/xnews/releases/press_release_0073.shtm.
[11] In light of the purpose and language of the HSA, we conclude that Border Patrol agents, acting within the other statutory limits on their powers, also have the authority, under
[12] Although we have never expressly articulated a rule, for purposes of
CONCLUSION
Because the District Court did not err in assuming jurisdiction over Juvenile Female, or in denying the motion for a judgment of acquittal, we AFFIRM the District Court‘s orders.
AFFIRMED.