United States v. Evans
| Citation | 848 F.3d 242 |
| Decision Date | 02 February 2017 |
| Docket Number | No. 16-4094,16-4094 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jamaal Eugene EVANS, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. John Stuart Bruce, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Before TRAXLER, SHEDD, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Traxler and Judge Shedd joined.
In this appeal, we consider the familiar question whether a particular offense constitutes a "crime of violence" within the meaning of 18 U.S.C. § 924(c). Under the terms of Section 924(c), a person convicted of a qualifying crime of violence in which a firearm is discharged is subject to a consecutive, mandatory sentence of not less than 10 years' imprisonment. 18 U.S.C. § 924(c)(1)(A)(iii).
The crime that we presently examine is the federal offense of carjacking, in violation 18 U.S.C. § 2119 (the carjacking statute). The district court held that the defendant was subject to a consecutive term of imprisonment under Section 924(c), because his conviction under the carjacking statute was categorically a crime of violence. Upon our review, we agree with the district court that the carjacking statute qualifies as a crime of violence under Section 924(c), because the carjacking statute "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). Accordingly, we affirm the district court's judgment.
In July 2013, defendant Jamaal Evans was a passenger in a car owned and driven by his friend, Amani Duke. During the course of the outing, Evans asked Duke to drive into a vacant parking lot, purportedly to meet Evans' cousin. In the parking lot, Evans brandished a pistol, and ordered Duke out of the car. Evans attempted to steal Duke's wallet and shot Duke in each leg. Immediately thereafter, Evans drove away in Duke's car. After Evans departed, Duke crawled to a nearby road where he ultimately received assistance, and was transported to a hospital for emergency medical treatment.
A federal grand jury charged Evans with carjacking resulting in serious bodily injury, in violation of 18 U.S.C. § 2119(2), and using a firearm during and in relation to a carjacking, a crime of violence, in violation of Section 924(c)(1)(A). The indictment also included two counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(b), and two counts of using a firearm during and in relation to Hobbs Act robbery, in violation of Section 924(c)(1)(A).
Evans filed a motion to dismiss under Federal Rule of Criminal Procedure 12(b)(3)(B), arguing that the three counts in the indictment alleging violations of Section 924(c)(1)(A) did not state an offense because neither Hobbs Act robbery nor the carjacking statute qualified as "crimes of violence" within the meaning of Section 924(c). After a hearing, the district court denied the motion, ruling that Hobbs Act robbery and federal carjacking both categorically qualified as crimes of violence for purposes of Section 924(c).
After the district court denied Evans' motion to dismiss, Evans and the government entered into a plea agreement. Evans agreed to plead guilty to one count of Hobbs Act robbery, one count under the carjacking statute, and one count of discharging a firearm during a carjacking, in exchange for the government dismissing the other three counts. The plea agreement also preserved Evans' right to appeal the district court's ruling that the federal offense of carjacking qualified as a crime of violence under Section 924(c).
The district court accepted Evans' guilty plea, and sentenced him to serve concurrent sentences of 96 months' imprisonment on the robbery and carjacking counts, and 120 months' imprisonment under Section 924(c), to run consecutively with the other two offenses, for a total term of 216 months' imprisonment. Evans now appeals from the district court's judgment solely with respect to his conviction and sentence imposed under Section 924(c).1
Although Evans was convicted under subsection (2) of the carjacking statute because he caused bodily injury to Duke, we consider on appeal the more general offense described in the carjacking statute that does not require conduct resulting in serious bodily injury. See 18 U.S.C. § 2119(1). If that lesser-included crime qualifies as a crime of violence within the meaning of Section 924(c), then the aggravated offense under subsection (2) of the carjacking statute necessarily also qualifies as a crime of violence. See United States v. McNeal , 818 F.3d 141, 157 (4th Cir. 2016). Thus, the sole issue that we consider here is whether carjacking punishable under Section 2119(1) qualifies as a crime of violence within the meaning of Section 924(c). To make that determination, we examine the definition of crime of violence set forth in Section 924(c)(3), and compare that definition to the elements of the carjacking statute.
Section 924(c) prescribes criminal penalties for anyone who discharges a firearm "during and in relation to any crime of violence." 18 U.S.C. § 924(c)(1)(A)(iii). The determination whether a particular criminal offense qualifies as a crime of violence under Section 924(c) presents a legal question, which we review de novo. McNeal , 818 F.3d at 151.
Section 924(c)(3) defines "crime of violence" as any felony that either:
18 U.S.C. § 924(c)(3). Thus, we look first to the language of subparagraph (A), commonly known as the "force clause," to consider whether a conviction under the carjacking statute qualifies as a crime of violence under that portion of the statutory definition.2 See United States v. Fuertes , 805 F.3d 485, 498 (4th Cir. 2015).
As used in subparagraph (A), the statutory phrase "physical force" requires the use of "violent force," which necessarily "connotes a substantial degree of force." See Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (); Leocal v. Ashcroft , 543 U.S. 1, 11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (). In order to qualify as "violent physical force," the degree of force employed must be "capable of causing physical pain or injury to another person." Johnson , 559 U.S. at 140, 130 S.Ct. 1265 ; see also United States v. Gardner , 823 F.3d 793, 803 (4th Cir. 2016).
Because the force clause of Section 924(c)(3) encompasses only crimes that have "as an element the use, attempted use, or threatened use of physical force," 18 U.S.C. § 924(c)(3)(A) (emphasis added), we apply the elements-based categorical approach articulated by the Supreme Court to decide whether the carjacking statute satisfies this statutory definition. See Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). Under the categorical approach, we analyze only the elements of the offense in question, rather than the specific means by which the defendant committed the crime. United States v. Price , 777 F.3d 700, 704–05 (4th Cir. 2015). Accordingly, we must determine whether crimes committed under the carjacking statute necessarily require the use, attempted use, or threatened use of violent physical force. See 18 U.S.C. § 924(c)(3)(A) ; Gardner , 823 F.3d at 803.
We turn to consider the language of the carjacking statute, which provides that:
Evans contends that because this offense can be committed "by intimidation," the offense does not necessarily include as an element "the use, attempted use, or threatened use of force" required by Section 924(c)(3). Evans argues that the term "intimidation" commonly is defined as "putting in fear of bodily harm," which would include a threat to poison another. Thus, relying on our decision in United States v. Torres–Miguel , 701 F.3d 165 (4th Cir. 2012), Evans argues that a defendant may be convicted under the carjacking statute for taking a vehicle by threatening to poison another, without the "use, attempted use, or threatened use of violent physical force."
In response, the government argues that the term "intimidation," as used in the statutory phrase "by force and violence or by intimidation," denotes a threat to use violent force. Therefore, in the government's view, the employment of intimidation to commit the federal crime of carjacking is encompassed within the "use,...
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