United States v. Molinar

• Decision Date: 29 November 2017
• Docket Number: No. 15-10430,15-10430
• Citation: 881 F.3d 1064
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rogelio Sanchez MOLINAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

881 F.3d 1064

UNITED STATES of America, Plaintiff-Appellee,

v.Rogelio Sanchez MOLINAR, Defendant-Appellant.

No. 15-10430

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 14, 2016

Filed November 29, 2017

Amended February 5, 2018

J. Ryan Moore (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Tucson, Arizona; for Defendant-Appellant.

Robert Lally Miskell (argued), Appellate Chief; United States Attorney's Office, Tucson, Arizona; for Plaintiff-Appellee.

Before: William A. Fletcher, Morgan B. Christen, and Michelle T. Friedland, Circuit Judges.

Dissent by Judge W. Fletcher

ORDER

The opinion filed on November 29, 2017, and appearing at 876 F.3d 953, is hereby amended as follows: On page 960, note 8, the citation " Commonwealth v. Zangari , 42 Mass.App.Ct. 931, 677 N.E.2d 702, 703 (1997) ("[W]here the snatching or sudden taking of property from a victim is sufficient to produce awareness, there is sufficient evidence of force to permit a finding of robbery.") (quoting Commonwealth v. Davis , 7 Mass.App.Ct. 9, 385 N.E.2d 278, 279 (1979) );" is deleted. In addition, on page 964, in the dissent, "see also United States v. Parnell , 818 F.3d 974, 982 (9th Cir. 2016) (Watford, J., concurring) (noting that at common law, "[t]o commit robbery, the defendant also had to use violence or intimidation to coerce the victim into parting with his property")" is added after " Santiesteban-Hernandez , 469 F.3d at 380 ("The immediate danger element is what makes robbery deserving of great punishment than that provided for larceny." (internal quotation marks omitted) )".

With the foregoing amendments, Judge Friedland and Judge Christen vote to deny the petitions for panel rehearing and rehearing en banc, and Judge Fletcher votes to grant the petitions. Appellant's petition for panel rehearing, filed December 12, 2017, is DENIED . The full court has been advised of the petition for rehearing en banc, and no judge requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc, filed the same date, is DENIED . No future petitions shall be entertained.

FRIEDLAND, Circuit Judge

Rogelio Sanchez Molinar challenges the district court's imposition of a sentencing enhancement based on his prior Arizona conviction for attempted armed robbery, which the court treated as a "crime of violence" under the U.S. Sentencing Guidelines Manual ("USSG" or "Guidelines"). We previously decided in United States v. Taylor , 529 F.3d 1232 (9th Cir. 2008), that Arizona attempted armed robbery should be considered a crime of violence under the relevant Guidelines provision. Id. at 1238. But we must now reexamine that holding in light of the Supreme Court's decision in Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), which construed a similarly worded crime-of-violence provision in the Armed Career Criminal Act ("ACCA"). Id. at 140, 130 S.Ct. 1265. Although Johnson does require us to depart from some of our analysis in Taylor , we conclude that Arizona attempted armed robbery nonetheless qualifies as a crime of violence for reasons other than those relied upon in Taylor. Accordingly, we affirm.¹

I. BACKGROUND

Molinar pled guilty to federal charges for being a felon in possession of ammunition.

Among other prior felonies, Molinar had previously been convicted of attempted armed robbery under Arizona law.

In sentencing Molinar for the ammunition convictions, the district court applied the firearms guideline, which included an enhancement if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of ... a crime of violence." U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(a)(4)(A) ( U.S. SENTENCING COMM'N 2014).² The guideline defined "crime of violence" by cross-referencing Section 4B1.2(a) and Application Note 1 of the Commentary to Section 4B1.2. USSG § 2K2.1 cmt. n.1. At the time, Section 4B1.2(a) read as follows:

(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [known as the "force clause" or the "elements clause" ], or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives [known as the "enumerated felonies clause" ], or otherwise involves conduct that presents a serious potential risk of physical injury to another [known as the "residual clause" ].

Id. § 4B1.2(a).

Application Note 1 to Section 4B1.2 ("Note 1") stated that " ‘[c]rime of violence’ includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling," as well as "attempting to commit" a crime of violence. USSG § 4B1.2 cmt. n.1.

The district court held that Molinar's prior Arizona conviction for attempted armed robbery qualified as a crime of violence, triggering the enhancement in Section 2K2.1(a)(4)(A). The resulting sentencing range was 46 to 57 months, and the district court imposed a sentence of 44 months. Without the crime of violence enhancement, Molinar's sentencing range would have been 27 to 33 months.

Molinar appealed, arguing that the district court erred in treating his Arizona conviction as a crime of violence.

II. ANALYSIS

We use the categorical approach to determine whether a state crime qualifies as a crime of violence for Guidelines purposes. See United States v. Rendon-Duarte , 490 F.3d 1142, 1146 (9th Cir. 2007). Under that approach, we look "only to the fact of conviction and the statutory definition of the prior offense," not to the defendant's actions underlying the conviction. United States v. Gomez-Hernandez , 680 F.3d 1171, 1174 (9th Cir. 2012) (quoting United States v. Espinoza-Cano , 456 F.3d 1126, 1131 (9th Cir. 2006) ). "State cases that examine the outer contours of the conduct criminalized by the state statute are particularly important because ‘we must presume that the conviction rested upon [nothing] more than the least of th[e] acts criminalized.’ " United States v. Strickland , 860 F.3d 1224, 1226–27 (9th Cir. 2017) (alterations in original) (quoting Moncrieffe v. Holder , 569 U.S. 184, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) ). Applying the categorical approach here, we conclude that Arizona attempted armed robbery is a crime of violence, but for reasons different than those we relied upon in United States v. Taylor , 529 F.3d 1232 (9th Cir. 2008).

A. Effect of Johnson on Taylor 's "Crime of Violence" Holding

We held in Taylor that Arizona attempted armed robbery was a crime of violence for Guidelines purposes. Id. at 1237–38. Based solely on the text of Arizona's armed robbery statute, we concluded that "[a]rmed robbery under Arizona law involves the threat or use of force; therefore, that offense is a crime of violence pursuant to" the force clause of Section 4B1.2(a)(1). Id. at 1237. Molinar contends that the Supreme Court's intervening decision in Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), is clearly irreconcilable with our crime of violence holding in Taylor and urges us to treat Taylor as "effectively overruled." See Miller v. Gammie , 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc). We thus evaluate whether Taylor 's determination that Arizona attempted armed robbery is a crime of violence under Section 4B1.2's force clause survived Johnson. We hold that it did not.

The Supreme Court in Johnson analyzed the ACCA's "violent felony" definition. The Court evaluated whether the term "physical force" in that definition was synonymous with the understanding of "force" under the common law and held that it was not. For common-law battery, the force element is "satisfied by even the slightest offensive touching." See Johnson , 559 U.S. at 138–41, 130 S.Ct. 1265. By contrast, the Court "th[ought] it clear that in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person." Id. at 140, 130 S.Ct. 1265 ; see also id. (discussing similar conclusion reached in Leocal v. Ashcroft , 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), about the statutory definition of "crime of violence" in 18 U.S.C. § 16 ).

We have applied Johnson 's definition of force in analyzing whether an offense constitutes a crime of violence under the force clause of Section 4B1.2 of the Guidelines.³ United States v. Tucker , 641 F.3d 1110, 1117, 1124 (9th Cir. 2011) ; accord Johnson , 559 U.S. at 140, 130 S.Ct. 1265 (discussing "crime of violence" and "violent felony" as equivalent terms). Thus, to qualify as a crime of violence under the force clause, an offense under state law—as interpreted by that state's courts—must punish only conduct involving violent force as defined in Johnson.

In light of Johnson , we must assess whether Arizona courts apply the armed robbery statute to punish conduct that does not involve violent force. Arizona's armed robbery statute provides:

A person commits armed robbery if, in the course of committing robbery as defined in § 13-1902, such person or an accomplice:

1. Is armed with a deadly weapon or a simulated deadly weapon; or

2. Uses or threatens to use a deadly weapon or dangerous instrument or a simulated deadly weapon.

Ariz. Rev. Stat. § 13-1904(A). On its face, this statute does not require that the robber actually use or even threaten to use a weapon. Arizona courts have not imposed further requirements. See State v. Snider , 233 Ariz. 243, 311 P.3d 656, 659 (Ct. App. 2013) ("[ Section] 13-1904(A)(1) does not require the use or threatened use of the weapon, only that a defendant is ‘armed with a deadly weapon’ during the commission of the crime."). Thus, merely...