United States v. Cruz-Rivera

• Decision Date: 14 September 2018
• Docket Number: No. 16-1321,16-1321
• Citation: 904 F.3d 63
• Parties: UNITED STATES of America, Appellee, v. Carlos CRUZ-RIVERA, a/k/a Chiqui, a/k/a Cano, a/k/a Cano Llorens, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

904 F.3d 63

UNITED STATES of America, Appellee,

v.Carlos CRUZ-RIVERA, a/k/a Chiqui, a/k/a Cano, a/k/a Cano Llorens, Defendant, Appellant.

No. 16-1321

United States Court of Appeals, First Circuit.

September 14, 2018

Ines McGillion, with whom Ines McGillion Law Offices, PLLC, was on brief, for appellant.

Mainon A. Schwartz, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee.

Before Thompson, Kayatta, and Barron, Circuit Judges.

BARRON, Circuit Judge.

Carlos Cruz-Rivera ("Cruz") appeals his convictions and sentence for federal carjacking and weapons counts. For the reasons that follow, we affirm.

I.

On September 9, 2015, Cruz was indicted in the District of Puerto Rico on three counts of carjacking in violation of 18 U.S.C. § 2119 and three counts of violating 18 U.S.C. § 924(c), which prohibits using or carrying a "firearm" during a "crime of violence." Id. § 924(c)(1)(A). Carjacking in violation of § 2119 was the predicate "crime of violence" for each of the § 924(c) counts. In addition, the indictment charged Cruz with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

Cruz pleaded guilty to the three carjacking counts and proceeded to trial on the remaining four counts. In doing so, he stipulated that he had committed the carjacking offenses. However, at the close of the government's evidence, and again at the close of his own evidence, Cruz moved for a judgment of acquittal as to the three § 924(c) counts. He did so on the ground that the underlying carjacking in violation of § 2119 that served as the predicate crime for each of these counts did not qualify as a "crime of violence" for purposes of § 924(c). See Fed. R. Crim. P. 29.

The District Court denied both motions. On October 15, 2015, a jury convicted Cruz of all of the remaining counts. Cruz was then sentenced to 872 months of prison and five years of supervised release. This appeal followed.

II.

We begin with Cruz's contentions that none of his three convictions for carjacking under § 2119 were for an offense that qualifies as a "crime of violence" under § 924(c) and thus that these convictions cannot stand. Cruz preserved this issue below, which is one of law, and so our review is de novo. United States v. Willings, 588 F.3d 56, 58 (1st Cir. 2009).

Section 924(c) makes it a crime for "any person [to], during and in relation to any crime of violence ... use[ ] or carr[y] a firearm, or [to], in furtherance of any such crime, possess[ ] a firearm[.]" 18 U.S.C. § 924(c)(1)(A). Section 924(c) then defines a "crime of violence" as follows:

[A]n 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, [the force clause] 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 [the residual clause].

18 U.S.C. § 924(c)(3) (emphasis added).

The first of these two clauses is referred to as the "force clause." See United States v. Rose, 896 F.3d 104, 106 (1st Cir. 2018). The second is known as the "residual clause." Id. So long as an offense is encompassed by either clause, it qualifies as a "crime of violence." Id.

To assess whether a predicate crime qualifies as a "crime of violence" under the force clause of § 924(c), "we apply a categorical approach. That means we consider the elements of the crime of conviction, not the facts of how it was committed, and assess whether violent force is an element of the crime." United States v. Taylor, 848 F.3d 476, 491 (1st Cir.), cert. denied, ––– U.S. ––––, 137 S.Ct. 2255, 198 L.Ed.2d 689 (2017).

The federal carjacking statute states that "[w]hoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so," 18 U.S.C. § 2119, shall "be fined under this title or imprisoned not more than 15 years, or both," id. § 2119(1).¹ Cruz asks us to treat this offense as what is known as an indivisible crime, such that if any of its elements categorically exceed the scope of the force clause, we must find that it is not encompassed by that clause. See Descamps v. United States, 570 U.S. 254, 271-73, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (differentiating between divisible and indivisible crimes). And Cruz then goes on to argue that the elements of § 2119 do not, categorically, fall within the force clause.

Cruz premises this contention on the fact that carjacking under § 2119 can be accomplished by "intimidation." He asserts that, in consequence of this element, the government need not prove the defendant used "physical force," 18 U.S.C. § 924(c)(3)(A), as the force clause requires of those offenses that it encompasses. But, even assuming that § 2119 is indivisible as Cruz contends, we have held, as the government points out, that the force clause encompasses federal bank robbery even though that offense, too, may be committed through "intimidation." United States v. Ellison, 866 F.3d 32, 35 (1st Cir. 2017) (holding that bank robbery was a "crime of violence" under United States Sentencing Guideline 4B1.1(a) ); 18 U.S.C. § 2113(a) ; see also Hunter v. United States, 873 F.3d 388, 390 (1st Cir. 2017) (applying Ellison to § 924(c) and holding that intimidation was sufficient to establish "violent force" under § 924(c)(3)(A) ). Given that § 2119 additionally requires that the government prove that a defendant committed the carjacking offense "with the intent to cause death or serious bodily harm," 18 U.S.C. § 2119, we do not see how Ellison and Hunter may be distinguished. Nor does Cruz offer any explanation of how they might be.

Accordingly, we conclude that the force clause encompasses Cruz's § 2119 convictions. We thus reject Cruz's first challenge without addressing his additional contention, which the government vigorously disputes, that the residual clause is unconstitutionally vague in light of Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Sessions v. Dimaya, ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018).

III.

Cruz next argues that § 924(c) is unconstitutional—both facially and as applied to his case. He bases this argument on his contention that this statute criminalizes conduct that has no nexus to interstate commerce and thus that, under United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Congress lacks the power to criminalize such conduct pursuant to its commerce power under Article I of the United States Constitution. See Art. I § 8, cl. 3.

Cruz did not raise this issue below, and so our review is only for plain error. United States v. Vilches-Navarrete, 523 F.3d 1, 11 (1st Cir. 2008). Cruz thus needs to demonstrate that "(1) there was error; (2) the error was plain; (3) the error affected [his] substantial rights; and (4) the error adversely impacted the fairness, integrity, or public reputation of judicial proceedings." United States v. Riggs, 287 F.3d 221, 224 (1st Cir. 2002). Cruz has not done so.

With respect to his facial challenge, Cruz contends that Congress exceeded its powers under the Commerce Clause in enacting § 924(c) because the statute does not require the government to prove that the defendant's prohibited conduct has a connection to interstate commerce. But, Cruz does not argue that the definition of a "crime of violence" under § 924(c), on its face, encompasses offenses that exceed Congress's commerce power. In fact, that definition, for the reasons that we have just explained, encompasses the offense of carjacking in violation of 18 U.S.C. § 2119 and that offense requires the government to prove that the car was "transported, shipped, or received in interstate or foreign commerce[.]"

The fact that Cruz does not contend that § 924(c)'s definition of a "crime of violence" on its face encompasses offenses with no nexus to interstate commerce is significant. Every circuit to have considered the type of constitutional challenge that Cruz raises here has concluded that "[j]urisdiction under § 924(c) is derived from jurisdiction over a predicate offense, the 'crime of violence.' " United States v. Moran, 845 F.2d 135, 137 (7th Cir. 1988) ; see also United States v. Ricketts, 317 F.3d 540, 543 (6th Cir. 2003) ; United States v. Ferreira, 275 F.3d 1020, 1028 (11th Cir. 2001) ; United States v. Walker, 142 F.3d 103, 111 (2d Cir. 1998) ; United States v. Crump, 120 F.3d 462, 466 (4th Cir. 1997) ; United States v. Harris, 108 F.3d 1107, 1109 (9th Cir. 1997) ; United States v. Brown, 72 F.3d 96, 97 (8th Cir. 1995).

Cruz does argue that, notwithstanding this body of precedent, there must be some limit to Congress's power under the Commerce Clause to criminalize the means of carrying out an offense, even if that underlying offense itself falls within Congress's commerce power. And he then goes on to contend that, because § 924(c) is a separate offense for which a violator faces harsh penalties, the government must separately prove that there is a nexus between the use of the firearm and interstate commerce.

Cruz does not explain, however, why Congress's power under the Commerce Clause to prohibit the conduct encompassed by § 924(c) depends on there being a nexus to the "firearm" rather than to the "crime of violence[.]" Nor do we see why Congress's power in that regard would be so limited, given that the defendant's commission of a qualifying predicate offense is no less an element of § 924(c) than is the defendant's use of a particular type of weapon in carrying out that predicate crime. Thus, Cruz fails to provide a reason why we should depart from the consensus among...