United States v. Baldon

• Decision Date: 13 November 2019
• Docket Number: No. 18-10411,18-10411
• Citation: 956 F.3d 1115
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. LeCharles BALDON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

956 F.3d 1115

UNITED STATES of America, Plaintiff-Appellee,

v.LeCharles BALDON, Defendant-Appellant.

No. 18-10411

United States Court of Appeals, Ninth Circuit.

November 13, 2019

Filed April 21, 2020

Justin J. Bustos (argued), Dickinson Wright PLLC, Reno, Nevada, for Defendant-Appellant.

Nancy M. Olson (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich, United States Attorney; United States Attorney’s Office, Las Vegas, Nevada; for Plaintiff-Appellee.

Before: Mark J. Bennett and Kenneth K. Lee, Circuit Judges, and Lawrence L. Piersol,^* District Judge.

BENNETT, Circuit Judge:

LeCharles Baldon pled guilty to possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a), and the district court sentenced him to 184 months. This case presents two issues: first, whether Baldon’s prior convictions for carjacking under section 215 ¹ of the California Penal Code qualify as crimes of violence under U.S.S.G. § 4A1.1(e), and second, whether the district court erred in finding that Baldon possessed a firearm under U.S.S.G. § 2D1.1(b)(1). We hold that section 215 is not a categorical crime of violence, and thus the district court erred in calculating Baldon’s sentence. But the district court did not err in finding that Baldon possessed a firearm.

I.

In 2016, the FBI received information that Baldon was dealing methamphetamine and heroin in Reno, Nevada. The FBI and the DEA set up four controlled buys in late 2016, utilizing an informant.² Federal agents saw that Baldon accessed a storage unit before his first meeting with the informant. The agents contacted the storage company and learned that the unit was rented to Angelique Baker. On January 3, 2017, a manager of the storage company told the agents that Baldon had come to the office and paid to extend the lease. Agents conducted a sweep of storage units with a drug dog, and the dog alerted on the unit Baldon had accessed.

On January 17, 2017, agents arrested Baldon and executed a search warrant on his residence and the storage unit. At Baldon’s residence, agents found methamphetamine, cocaine, two scales, and packaging material, as well as 9-millimeter ammunition matching the caliber of the weapon found in the storage unit.³ The agents found a backpack containing methamphetamine, heroin, and a loaded gun in the storage unit.

The government charged Baldon with various methamphetamine and heroin offenses and being a felon in possession of a firearm. Baldon pled guilty to one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).

The district court calculated a total offense level of 31 and a criminal history category V (based on 11 criminal history points), resulting in a 168 to 210 month guideline range. The district court’s sentencing calculation included two criminal history points under U.S.S.G. § 4A1.1(e) for Baldon’s prior carjacking convictions and a two-point enhancement for the possession of a firearm under U.S.S.G. § 2D1.1(b)(1). The district court agreed with the government and applied the "modified categorical approach" (looking at the charging documents) to determine whether Baldon’s prior carjacking convictions were crimes of violence under U.S.S.G. § 4A1.1(e). The district court sentenced Baldon to 184 months. We have jurisdiction under 18 U.S.C. § 3742(a) and 18 U.S.C. § 1291.

II.

We review de novo a district court’s determination that "a prior conviction qualifies as a crime of violence." United States v. Perez , 932 F.3d 782, 784 (9th Cir. 2019) (citing United States v. Rivera-Muniz , 854 F.3d 1047, 1048–49 (9th Cir. 2017) ). We apply the categorical approach set forth in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether a state conviction qualifies as a crime of violence under U.S.S.G. § 4A1.1(e). See id. "Under the categorical approach, we compare the elements of each offense with the federal definition of ‘crime of violence’ to determine whether the [state] offense criminalizes a broader range of conduct than the federal definition captures." United States v. Edling , 895 F.3d 1153, 1155 (9th Cir. 2018). If the state offense proscribes conduct beyond the federal definition, it will not qualify as a crime of violence. See United States v. Bankston , 901 F.3d 1100, 1102–03 (9th Cir. 2018).

However, even if the offense is not a categorical match, we may use the modified categorical approach if the state statute is divisible, i.e., if it sets out one or more elements of the offense in the alternative. Id. at 1103 n.2 ; see also Perez , 932 F.3d at 785 n.1. "If ‘a defendant was convicted of violating a divisible statute,’ a court may employ the modified categorical approach, for which it must ‘identify, from among several alternatives, the crime of conviction so that the court may compare it to the generic offense.’ " United States v. Brown , 879 F.3d 1043, 1047 n.1 (9th Cir. 2018) (quoting Descamps v. United States , 570 U.S. 254, 263–64, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ).

A.

Before applying the categorical approach, we must first decide whether we are bound by Solorio-Ruiz v. Sessions , 881 F.3d 733 (9th Cir. 2018), where we held that section 215 is not a crime of violence under 8 U.S.C. § 1101(a)(43)(F)⁴ . The government argues that Solorio-Ruiz is clearly irreconcilable with the Supreme Court’s decision in Stokeling v. United States , ––– U.S. ––––, 139 S. Ct. 544, 202 L.Ed.2d 512 (2019). We agree.

A three-judge panel is bound by prior circuit decisions unless the decision is " ‘clearly irreconcilable’ with a subsequent Supreme Court decision." United States v. Shelby , 939 F.3d 975, 978 (9th Cir. 2019) (quoting Close v. Sotheby’s Inc. , 894 F.3d 1061, 1072–73 (9th Cir. 2018) ). "The issues decided by the higher court need not be identical," only that the Supreme Court "undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable." Miller v. Gammie , 335 F.3d 889, 900 (9th Cir. 2003) (en banc). "The clearly irreconcilable requirement is a high standard," and as long as we "can apply our prior circuit precedent without running afoul of the intervening authority[,] [we] must do so." Sotheby’s , 894 F.3d at 1073 (internal quotation marks omitted) (quoting United States v. Robertson , 875 F.3d 1281, 1291 (9th Cir. 2017), vacated on other grounds , ––– U.S. ––––, 139 S. Ct. 1543, 203 L.Ed.2d 708 (2019) ).

In Solorio-Ruiz , we relied on Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), to conclude that carjacking under section 215 was not a crime of violence because section 215 "does not require the violent force that Johnson demands of a crime of violence" and "requires only force in excess of that required to seize the vehicle, however slight that may be." 881 F.3d at 737 (internal quotation marks omitted). We interpreted Johnson to require "that the physical force that a crime of violence entails" must be "violent force—that is, force capable of causing physical pain or injury to another person." Id. at 736. We looked to California cases interpreting section 215 and found that the statute does not require the use of violent force because "California carjacking ‘requires only force in excess of that required to seize the vehicle,’ however slight that may be." Id. at 737 (quoting People v. Hudson, 11 Cal.App.5th 831, 217 Cal. Rptr. 3d 775, 782 (2017) ). We relied on Hudson ’s facts to conclude that the force inherent in driving the stolen vehicle can be "enough to sustain a carjacking conviction, whenever the victim puts up the slightest resistance ." Id. (emphasis added) (citing Hudson , 217 Cal. Rptr. 3d at 782 ).

Last year the Supreme Court revisited Johnson in Stokeling . The Court explained that at common law the terms "violence" and "force" were used interchangeably, and that "[t]he common law also did not distinguish between gradations of ‘violence.’ If an act physically overcame a victim’s resistance, ‘however slight’ that resistance might be, it necessarily constituted violence." Stokeling , 139 S. Ct. at 550. This understanding of "physical force" aligns with Johnson because "the force necessary to overcome a victim’s physical resistance is inherently ‘violent’ in the sense contemplated by Johnson , and ‘suggest[s] a degree of power that would not be satisfied by the merest touching.’ " Id. at 552–53 (quoting Johnson , 559 U.S. at 139, 130 S.Ct. 1265 ).

This clarification of "violent force" (any force sufficient to overcome a victim’s physical resistance) is "clearly irreconcilable" with our reasoning in Solorio-Ruiz . Our opinion rested on the analytical distinction between substantial and minimal force. This distinction no longer exists. See Ward v. United States , 936 F.3d 914, 919 (9th Cir. 2019). As a result, Solorio-Ruiz ’s holding is no longer good law.

Baldon argues, however, that Solorio-Ruiz is not "clearly irreconcilable" with Stokeling , relying on the Court’s clarification that under Florida law a defendant is not guilty of robbery when he "merely snatches money from the victim’s hand" or steals a gold chain and the victim feels defendant’s fingers on her skin. See Stokeling , 139 S. Ct. at 555.

We have recently clarified that " Stokeling made clear that force involved in snatchings, where there is no resistance , is not sufficient to fall under the [statutory] force clause." Ward , 936 F.3d at 919 n.4 (emphasis added). But Baldon cites no authority showing, and we have found none, that carjacking can be accomplished by force with no resistance from the victim. Rather, California courts have held that "a perpetrator accomplishes the taking of a motor vehicle by means of force, as defined under section 215, when the perpetrator drives the vehicle while a victim holds on or otherwise physically attempts to prevent the theft ." People v. Lopez, 8...