United States v. Buck

Decision Date11 January 2022
Docket NumberNo. 18-17271,18-17271
Citation23 F.4th 919
Parties UNITED STATES of America, Plaintiff-Appellee, v. Tony BUCK, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

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.

BRESS, Circuit Judge:

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.

I

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.

II

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).

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:

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

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 , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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, 133 S.Ct. 1678, 185 L.Ed.2d 727 (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 , ––– U.S. ––––, 141 S. Ct. 1817, 1822, 210 L.Ed.2d 63 (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, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ). A statute is divisible when it "list[s] elements in the alternative, and thereby define[s] multiple crimes." Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2249, 195 L.Ed.2d 604 (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 documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms." Johnson v. United States , 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

B

18 U.S.C. § 2114(a) criminalizes assaulting and robbing mail carriers:

A person who assaults any person having lawful charge, control, or custody of any mail matter or any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs or attempts to rob any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned not more than twenty-five years.

In determining whether Buck's § 2114(a) conviction qualifies as a crime of violence, we first assess whether the statute is divisible. It is.

As an initial matter, § 2114(a) is divisible into basic and aggravated offenses—a point on which the parties agree. The basic offense, punishable by "not more than ten years," is contained in the clause preceding the semicolon. That crime consists of assaulting any person with custody or control of mail matter or other government property with intent to steal the property, or otherwise attempting or successfully robbing the person of the property. Id. The aggravated offense, which follows the semicolon, carries a term of imprisonment of "not more than twenty-five years." Id. That crime consists of the basic offense committed in one of three aggravated ways: (1) wounding the person with custody or control of mail matter or other government property; (2) placing the person's "life in jeopardy by the use of a dangerous weapon"; or (3) committing a subsequent offense under §...

To continue reading

Request your trial
12 cases
  • United States v. Linehan
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 22 décembre 2022
    ...Descamps v. United States , 570 U.S. 254, 261–62, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; see also, e.g., United States v. Buck , 23 F.4th 919, 924 (9th Cir. 2022). In that instance, we then consult permitted sources to determine whether the defendant was convicted of that divisible portio......
  • United States v. Begay
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 5 mai 2022
    ...... statute entails that force, the statute is not a categorical. match with the elements clause, and it does not qualify as a. crime of violence. See Borden , 141 S.Ct. at 1822;. see also United States v. Buck , 23 F.4th 919, 924. (9th Cir. 2022). . .          Federal. law defines "murder" as "the unlawful killing. of a human being with malice aforethought." 18 U.S.C. § 1111(a) [ 5 ] ;. . 17 . . see also Ninth Cir. Model Crim. Jury ......
  • United States v. Begay
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 5 mai 2022
    ...the elements clause, and it does not qualify as a crime of violence. See Borden , 141 S. Ct. at 1822 ; see also United States v. Buck , 23 F.4th 919, 924 (9th Cir. 2022).Federal law defines "murder" as "the unlawful killing of a human being with malice aforethought." 18 U.S.C. § 1111(a)5 ; ......
  • Williams v. United States
    • United States
    • United States District Courts. 6th Circuit. Western District of Tennessee
    • 1 septembre 2023
    ...attempting bank robbery; the provision does not encompass “one attempt interwoven in another attempt”); see also United States v. Buck, 23 F.4th 919, 928 (9th Cir. 2022) (“[W]e have interpreted §§ 2113(d) and 2114(a)'s life-in-jeopardy elements to require conduct that fits within the generi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT