U.S. v. Mendez, Nos. 91-50807

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore CANBY, BOOCHEVER and THOMPSON; BOOCHEVER
Citation992 F.2d 1488
Docket NumberNos. 91-50807,91-50833
Decision Date07 December 1992
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John Rudy MENDEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John CHAVEZ, Defendant-Appellant.

Page 1488

992 F.2d 1488
UNITED STATES of America, Plaintiff-Appellee,
v.
John Rudy MENDEZ, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
John CHAVEZ, Defendant-Appellant.
Nos. 91-50807, 91-50833.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Dec. 7, 1992.
Submitted Dec. 7, 1992. *
Decided May 12, 1993.

Page 1489

David R. Reed, Beverly Hills, CA, Michael J. Brennan, Manhattan Beach, CA, for defendants-appellants.

Kimberly A. Dunne, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before CANBY, BOOCHEVER and THOMPSON, Circuit Judges.

BOOCHEVER, Circuit Judge:

This appeal raises the question of whether conspiracy to interfere with interstate commerce by robbery in violation of 18 U.S.C. § 1951 is a "crime of violence" under 18 U.S.C. § 924(c)(1). We hold that such a conspiracy categorically violates § 924(c)(1) because by its nature it involves a substantial risk that physical force may be used against a person or property in the course of committing the offense.

STATEMENT OF FACTS

John Chavez and John Rudy Mendez were arrested on April 30, 1991, as they awaited the arrival of an armored truck that they intended to rob. At the time of their arrest, Chavez and Mendez had in their possession two .38 caliber revolvers, gloves, and other items of clothing to be used to commit armed robbery.

Chavez and Mendez were indicted for, inter alia, conspiracy to interfere with interstate commerce by robbery ("conspiracy to rob") in violation of § 1951, and carrying or using a firearm in the commission of a "crime of violence" in violation of § 924(c)(1). They pled guilty to the conspiracy charge but moved to dismiss the firearm charge, arguing that conspiracy to rob under § 1951 was not a "crime of violence" under § 924(c)(1). On September 16, 1991, the district court denied the motion to dismiss. Chavez and Mendez then entered a conditional guilty plea to all counts and timely appealed the denial of their motion. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We hold that conspiracy to rob under § 1951 is a "crime of violence" under § 924(c)(3)(B) and therefore affirm the district court.

DISCUSSION
A

Section 924(c)(1) provides that "[w]hoever, during and in relation to any crime of violence ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ... be sentenced to imprisonment for five years...." 18 U.S.C. § 924(c)(1) (1988). Section 924(c)(3) defines a "crime of violence" as any felony that:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

Page 1490

(B) 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.

Id. § 924(c)(3) (emphasis added). Thus to convict under § 924(c)(1), the underlying substantive offense must be a "crime of violence" as defined by § 924(c)(3).

In the present case, the underlying offense is conspiracy to rob in violation of 18 U.S.C. § 1951 (1988). Section 1951 provides in pertinent part:

(a) Whoever in any way or degree obstructs, delays, or affects commerce ... by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.

(b) As used in this section--

(1) The term "robbery" means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence....

Id. The district court ruled that conspiracy to rob in violation of § 1951 presents a substantial risk that force may be used in the course of the conspiracy. Chavez and Mendez argue that the district court misinterpreted § 924(c)(3). They assert that conspiracy to rob under § 1951 is not a "crime of violence" and that therefore they did not violate § 924(c)(1). We review this question of statutory interpretation de novo. United States v. Martinez-Jimenez, 864 F.2d 664, 665 (9th Cir.), cert. denied, 489 U.S. 1099, 109 S.Ct. 1576, 103 L.Ed.2d 942 (1989).

B

In deciding whether conspiracy to rob is a "crime of violence," we ask whether such a conspiracy by definition constitutes a "crime of violence" under either § 924(c)(3)(A) or (B). This categorical approach is in contrast to the circumstantial or case-by-case method that requires the district court to inquire into the facts of the particular case. See United States v. Springfield, 829 F.2d 860, 862-63 (9th Cir.1987) (using categorical, rather than circumstantial, test in determining whether involuntary manslaughter is a "crime of violence" under § 924(c)(3)); see also Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 2159-2160, 109 L.Ed.2d 607 (1990) (categorical approach required to determine whether prior burglary was "violent felony" under 18 U.S.C. § 924(e)); United States v. Sherbondy, 865 F.2d 996, 1009-10 (9th Cir.1988) (categorical approach required in deciding whether witness intimidation was "violent felony" under § 924(e)).

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157 practice notes
  • U.S. v. Baker, Nos. 89-10302
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 13, 1993
    ...911 F.2d 542, 547 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2056, 114 L.Ed.2d 461 (1991); cf. United States v. Mendez, 992 F.2d 1488, 1490 (9th Cir.1993) (employing categorical approach to determine whether offense was "by its nature" a crime of violence under 18 U.S.C. Sec. 9......
  • United States v. Taylor, Criminal No. 1:06-cr-430
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • September 8, 2016
    ...States v. Adams, 789 F.3d 713, 713 (7th Cir.2015) ; United States v. Kennedy, 133 F.3d 53, 58 (D.C.Cir.1998) ; United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir.1993).36 See, e.g., McDaniels, 147 F.Supp.3d at 434–35 ; United States v. Standberry, 139 F.Supp.3d 734, 740 (E.D.Va.2015) ; U......
  • United States v. Hill, No. 14-3872-cr
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 3, 2016
    ...with the defendant's argument that the “fear of injury” language requires an alternative conclusion); United States v. Mendez , 992 F.2d 1488, 1491 (9th Cir. 1993) (observing that a substantive Hobbs Act robbery offense “indisputably qualifies as a crime of violence,” a conclusion from whic......
  • U.S. v. Innie, No. 92-50239
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 5, 1993
    ...limited purpose of determining the nature of a predicate offense where an offense has various permutations. See United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir.1993) (deciding whether conspiracy to rob is a crime of violence under section 924(c)); see also Taylor v. United States, 495......
  • Request a trial to view additional results
156 cases
  • U.S. v. Baker, Nos. 89-10302
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 13, 1993
    ...911 F.2d 542, 547 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2056, 114 L.Ed.2d 461 (1991); cf. United States v. Mendez, 992 F.2d 1488, 1490 (9th Cir.1993) (employing categorical approach to determine whether offense was "by its nature" a crime of violence under 18 U.S.C. Sec. 9......
  • United States v. Taylor, Criminal No. 1:06-cr-430
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • September 8, 2016
    ...States v. Adams, 789 F.3d 713, 713 (7th Cir.2015) ; United States v. Kennedy, 133 F.3d 53, 58 (D.C.Cir.1998) ; United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir.1993).36 See, e.g., McDaniels, 147 F.Supp.3d at 434–35 ; United States v. Standberry, 139 F.Supp.3d 734, 740 (E.D.Va.2015) ; U......
  • United States v. Hill, No. 14-3872-cr
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 3, 2016
    ...with the defendant's argument that the “fear of injury” language requires an alternative conclusion); United States v. Mendez , 992 F.2d 1488, 1491 (9th Cir. 1993) (observing that a substantive Hobbs Act robbery offense “indisputably qualifies as a crime of violence,” a conclusion from whic......
  • U.S. v. Innie, No. 92-50239
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 5, 1993
    ...limited purpose of determining the nature of a predicate offense where an offense has various permutations. See United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir.1993) (deciding whether conspiracy to rob is a crime of violence under section 924(c)); see also Taylor v. United States, 495......
  • Request a trial to view additional results

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