United States v. Buck
| Decision Date | 11 January 2022 |
| Docket Number | 18-17271 |
| Court | U.S. Court of Appeals — Ninth Circuit |
| Parties | United States of America, Plaintiff-Appellee, v. Tony Buck, Defendant-Appellant. |
Argued and Submitted November 18, 2021
Appeal from the United States District Court for the District of Arizona Nos. 2:16-cv-02018-SRB, 2:95-cr-00386-SRB-2 Susan R Bolton, District Judge, Presiding
Nancy Hinchcliffe (argued), Phoenix, Arizona, for Petitioner-Appellant.
Karla Hotis Delord (argued), Assistant United States Attorney Krissa M. Lanham, Appellate Division Chief; Glenn B McCormick, Acting United States Attorney; United States Attorney's Office, Phoenix, Arizona; for Respondent-Appellee.
Before: Ronald Lee Gilman, [*] Consuelo M. Callahan, and Daniel A. Bress, Circuit Judges.
28 U.S.C. § 2255
The panel affirmed the district court's denial of a motion pursuant to 28 U.S.C. § 2255 in which federal prisoner Tony Buck argued that his convictions for assaulting a mail carrier with intent to steal in violation of 18 U.S.C. § 2114(a) did not qualify as crimes of violence under 18 U.S.C. § 924(c)(3).
The parties agreed that § 2114(a) is divisible into basic and aggravated offenses, but disagreed whether the aggravated offense is itself further divisible. The panel concluded that the aggravated offense under § 2114(a) is further divisible into three separate offenses, and proceeded to apply the modified categorical approach. At the first step, the panel wrote that for Count 1 (which produced the operative Count 2 § 924(c) conviction), Buck was charged with and convicted of assault with intent to steal mail with the aggravating element of placing the mail carrier's life in jeopardy by the use of a dangerous weapon. At the second step, the panel determined that this divisible offense of conviction satisfies § 924(c)(3)(A)'s elements clause as a categorical matter, agreeing with the Sixth Circuit's explanation for why aggravated postal robbery through use of a dangerous weapon under § 2114(a) meets the "force" requirement: both assault and robbery require at least some force or threatened use of force, and the use of a dangerous weapon to put the victim's life in jeopardy transforms the force into violent physical force. The panel wrote that neither the jury instructions nor § 2114(a) contain any suggestion that mere recklessness would suffice; instead, § 2114(a) requires intentional wrongdoing. The panel therefore held that an offender who assaults a mail carrier with intent to steal mail, while placing the mail carrier's life in jeopardy by the use of a dangerous weapon, commits a crime of violence under § 924(c)(3)(A).
The question in this case is whether assaulting a mail carrier with intent to steal mail, while placing the mail carrier's life in jeopardy by the use of a dangerous weapon, see 18 U.S.C. § 2114(a), is categorically a crime of violence under 18 U.S.C. § 924(c)(3). Like other circuits, we hold that it is. We thus affirm the district court's denial of habeas relief.
In September 1995, Tony Buck robbed two U.S. Postal Service mail carriers in the Phoenix area in an apparent effort to find cash sent through the mail. In the first robbery, Buck approached a mail carrier who was parked in her postal vehicle, ordered her at gunpoint to put mail in a bag, and then fled. In the second robbery, committed a week later, Buck (acting with accomplices) shot a mail carrier in the head. Fortunately, the mail carrier survived.
In 1996, following a six-day jury trial, Buck was convicted on two counts of assaulting a mail carrier with intent to steal mail, in violation of 18 U.S.C. § 2114(a) (Counts 1 and 5); one count of attempted murder of a mail carrier, in violation of 18 U.S.C. § 1114 (Count 3); and three counts of using a firearm during and in relation to a "crime of violence," in violation of 18 U.S.C. § 924(c)(1) (Counts 2, 4, and 6). Buck was also charged with and convicted of aiding and abetting under 18 U.S.C. § 2.
The district court sentenced Buck to concurrent terms of 210 months' imprisonment on the assault and attempted murder convictions, a consecutive term of 60 months' imprisonment for the first § 924(c) conviction (based on the Count 1 § 2114(a) conviction for the first robbery), and a consecutive term of 240 months' imprisonment for the second § 924(c) conviction (based on the Count 3 § 1114 conviction for attempted murder). The district court did not impose a sentence for Buck's third § 924(c) conviction (Count 6, which was predicated on the Count 5 § 2114(a) conviction for the second robbery), finding that it would have been duplicative to impose two sentences for Buck's use of a firearm during the second robbery "because it was one continuous event." Buck was thus sentenced to a total term of 510 months' imprisonment. We affirmed his convictions and sentence on direct appeal. United States v. Buck, 133 F.3d 929 (9th Cir. 1997) (unpublished).
In 2016, Buck filed the operative version of his motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, arguing that his § 2114(a) convictions did not qualify as crimes of violence under 18 U.S.C. § 924(c)(3). Although Counts 2 and 6 are at issue here, and Buck did not receive a sentence on Count 6, if Buck is successful in invalidating his § 924(c) conviction on Count 2, Buck's § 924(c) sentence for Count 4 would be limited to 60 months, rather than 240 months. That is because at the time, § 924(c)(1) imposed a 5-year consecutive term of imprisonment for the first offense, and a 20-year term for the second one. Id. § 924(c)(1) (1994). Thus, the import of Buck's argument that his conviction for assaulting a mail carrier under § 2114(a) is not a crime of violence is that he should have only one § 924(c) conviction (based on the attempted murder), and that his sentence should therefore be reduced by twenty years.
The district court denied Buck's § 2255 motion. We granted a certificate of appealability.
We review de novo "whether a criminal conviction is a crime of violence under § 924(c)(3)." United States v. Dominguez, 954 F.3d 1251, 1256 (9th Cir. 2020). We now hold that the aggravated offense of assaulting a mail carrier with intent to steal mail, while placing the mail carrier's life in jeopardy by the use of a dangerous weapon, 18 U.S.C. § 2114(a), is a "crime of violence" under the elements clause of 18 U.S.C. § 924(c)(3)(A).
Under 18 U.S.C. § 924(c), any person who uses or carries a firearm "during and in relation to any crime of violence" is subject to punishment. A "crime of violence" is "an offense that is a felony" and:
Id. § 924(c)(3).
The first clause is known as the "elements clause" (or the "force clause"). The second clause is called the "residual clause." In United States v Davis, 139 S.Ct. 2319 (2019), the Supreme Court held that the residual clause is unconstitutionally vague. Today to stand convicted of using a firearm during and in relation to a crime of violence, an offender must therefore satisfy the elements clause.
In determining whether a crime falls within the elements clause and thus constitutes a crime of violence, we apply the categorical approach. See Taylor v. United States, 495 U.S. 575, 602 (1990). Under that methodology, instead of assessing the specific facts underlying a given conviction, we consider whether the elements of the statute of conviction meet the federal definition of a "crime of violence." Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). The question here is thus whether a conviction under § 2114(a) necessarily "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). "If any- even the least culpable-of the acts criminalized do not entail that kind of force, the statute of conviction does not categorically match the federal standard, and so cannot serve as . . . [a] predicate" felony for § 924(c). Borden v. United States, 141 S.Ct. 1817, 1822 (2021) (plurality opinion).
We apply a modified categorical approach when the statute is "'divisible,' meaning that it 'comprises multiple, alternative versions of the crime,' at least one of which 'correspond[s] to the generic offense.'" Alvarado v. Holder, 759 F.3d 1121, 1126 (9th Cir. 2014) (quoting Descamps v. United States, 570 U.S. 254, 261-62 (2013)). A statute is divisible when it "list[s] elements in the alternative, and thereby define[s] multiple crimes." Mathis v. United States, 136 S.Ct. 2243, 2249 (2016). A statute is not divisible if it merely lists "alternative means of committing the same crime." Almanza-Arenas v. Lynch, 815 F.3d 469, 478 (9th Cir. 2016) (en banc); see also Mathis, 136 S.Ct. at 2249. If a statute is indivisible and criminalizes a broader range of conduct than would fit the federal definition of a crime of violence, there is no categorical match, and that ends the inquiry. Almanza-Arenas, 815 F.3d at 475.
But if the statute of conviction is divisible, and if one of the alternative versions of the crime would qualify as a crime of violence under the elements clause, we then determine, using certain permitted sources, whether the offender was convicted under that part of the divisible statute. In that circumstance, the modified categorical approach "permits a court to determine which statutory phrase was the basis for the conviction by consulting the trial record-including charging...
To continue reading
Request your trial