United States v. Parnell

• Decision Date: 12 April 2016
• Docket Number: No. 14–30208.,14–30208.
• Citation: 818 F.3d 974
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Paul Edward PARNELL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

818 F.3d 974

UNITED STATES of America, Plaintiff–Appellee,

v.Paul Edward PARNELL, Defendant–Appellant.

No. 14–30208.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2016.

Filed April 12, 2016.

Robert K. Schwarz (argued) and Melissa Winberg, Federal Defender Services of Idaho, Boise, ID, for Defendant–Appellant.

Wendy J. Olson, United States Attorney, Christian S. Nafzger, Assistant United States Attorney, and Joshua D. Hurwit (argued), District of Idaho, Boise, ID, for Plaintiff–Appellee.

Before: RAYMOND C. FISHER, MARSHA S. BERZON and PAUL J. WATFORD, Circuit Judges.

Opinion by Judge FISHER

; Concurrence by Judge WATFORD.

OPINION

FISHER, Circuit Judge:

Paul Edward Parnell was found guilty of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1).¹ The government sought an enhanced penalty under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which provides that a person who violates § 922(g) and who "has three previous convictions" for a "violent felony" shall be imprisoned for a minimum of 15 years and a maximum of life. 18 U.S.C. § 924(e). A "violent felony" is defined as "any crime punishable by imprisonment for a term exceeding one year" that "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another ; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B) (emphasis added). Under § 924(e)(2)(B)(i), known as the force clause, "the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

The district court concluded Parnell qualifies as an armed career criminal based in part on his 1990 conviction for armed robbery. SeeMass. Gen. Laws Ann. ch. 265, § 17. Parnell argues this offense does not have "as an element the use, attempted use, or threatened use of physical force against the person of another." We agree.

DISCUSSION

We review de novo a district court's conclusion that a prior conviction is a predicate offense under ACCA. See United States v. Snyder, 643 F.3d 694, 696 (9th Cir.2011). "To determine whether a prior conviction qualifies as a violent felony under 18 U.S.C. § 924(e), we apply the ‘categorical approach’ outlined by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)." United States v. Jennings, 515 F.3d 980, 987 (9th Cir.2008). "Under that approach, we initially evaluate whether a defendant's prior conviction corresponds to an offense enumerated as a violent felony in § 924(e)(2) by examining only ‘the fact of conviction and the statutory definition of the prior offense.’ " Id. (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143 ). "Where the statute of conviction is overinclusive, criminalizing some conduct that would qualify as a predicate offense and other conduct that would not, Taylor authorizes courts to ‘go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of the enumerated offense.’ " Id. (alteration omitted) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143 ). "In such cases, we employ the ‘modified categorical approach’ and examine the charging paper and jury instructions to determine whether the defendant was necessarily convicted of an offense corresponding to one listed in § 924(e)(2)." Id. Only in the case of a divisible statute, however, does the modified categorical approach apply. See Ramirez v. Lynch, 810 F.3d 1127, 1131 (9th Cir.2016) (citing Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2283–85, 186 L.Ed.2d 438 (2013) ). Here, we hold Parnell's conviction for armed robbery does not qualify as a violent felony under the categorical approach.

For an individual to be convicted of armed robbery under Massachusetts law, Mass. Gen. Laws Ann. ch. 265, § 17, the jury must find the defendant (1) committed a robbery (2) while in possession of a weapon. See King v. MacEachern, 665 F.3d 247, 253 (1st Cir.2011) (citing Commonwealth v. Tevlin, 433 Mass. 305, 741 N.E.2d 827, 833 (2001) ).²

To satisfy the first element, a robbery can be committed in one of two ways: (1) "by force and violence" (i.e., the actual force prong) or (2) "by assault and putting in fear" (i.e., the constructive force prong). Mass. Gen. Laws Ann. ch. 265, § 19(b).³ Under either prong, "the degree of force is immaterial so long as it is sufficient to obtain the victim's property ‘against his will.’ " Commonwealth v. Jones, 362 Mass. 83, 283 N.E.2d 840, 843 (1972) (quoting Mass. Gen. Laws Ann. ch. 277, § 39 ). "[S]o long as the victim is aware of the application of force which relieves him of his property ..., the requisite degree of force is present to make the crime robbery." Id. at 844–45. The offense need not involve resistance by the victim. See id. at 844 (recognizing but declining to follow the majority rule, under which "snatching does not involve sufficient force to constitute robbery, unless the victim resists the taking or sustains physical injury, or unless the article taken is so attached to the victim's clothing as to afford resistance"). Under the actual force prong, moreover, it is not necessary that the victim be placed in fear. See id. at 843 ; Commonwealth v. Brown, 2 Mass.App.Ct. 883, 318 N.E.2d 486, 487 (1974).

To satisfy the second element of armed robbery, the defendant must possess a dangerous weapon during the commission of the offense. The weapon, however, need not be "fired, employed to effectuate the robbery, used in a threatening manner, or even generally or openly displayed." King, 665 F.3d at 253. Nor need the victim be aware of the weapon's presence. See Commonwealth v. Goldman, 5 Mass.App.Ct. 635, 367 N.E.2d 1181, 1182 (1977).

We agree with Parnell that the force required by the actual force prong of robbery under Massachusetts law does not satisfy the requirement of physical force under § 924(e)(2)(B)(i) —"force capable of causing physical pain or injury to another person." Johnson, 559 U.S. at 140, 130 S.Ct. 1265. Because the "degree of force is immaterial," Jones, 283 N.E.2d at 843 (emphasis added), accord Commonwealth v. Joyner, 467 Mass. 176, 4 N.E.3d 282, 293 (2014), any force, however slight, will satisfy this prong so long as the victim is aware of it. Such force is insufficient under Johnson.

Purse snatching cases upon which Parnell relies demonstrate the Massachusetts statute does apply to minimal, nonviolent force. In Jones, 283 N.E.2d at 842, for example, the defendant simply grabbed the victim's pocketbook from her arm. The victim explained: "I really couldn't tell you what he did. All I knew he was standing there. Next thing I knew, I felt something off my arm. I realized my bag was gone." Id. The court held this testimony proved sufficient force to satisfy the statute, because "[s]natching necessarily involves the exercise of some actual force." Id. at 845 (emphasis added). The court held "where, as here, the actual force used is sufficient to produce awareness, although the action may be so swift as to leave the victim momentarily in a dazed condition, the requisite degree of force is present to make the crime robbery." Id. (emphasis added). Similarly, in Brown, 318 N.E.2d at 487, the defendant was convicted of robbery where he merely snatched a small purse the victim was holding in her hand, touching neither her hand nor her body. The court held "the pulling of a purse from a victim's hand constituted sufficient force to satisfy the ‘by force and violence’ alternative of the statutory definition" of robbery. Id.⁴

Under our case law applying Johnson, this level of force—the snatching of a purse from a victim's hand—does not constitute force "capable of causing physical pain or injury to another person." Johnson, 559 U.S. at 140, 130 S.Ct. 1265. In United States v. Dominguez–Maroyoqui, 748 F.3d 918, 921 (9th Cir.2014), for example, we held the crime of assaulting a federal officer was not a crime of violence under Johnson because it reached conduct such as chasing a prosecutor down the street and bumping into him, walking up to a prosecutor and jolting her arm and shoulder, grabbing a wildlife agent's jacket or spitting in a mail carrier's face. Similarly, in United States v. Flores–Cordero, 723 F.3d 1085, 1087–88 (9th Cir.2013) (as amended), we held Arizona's crime of resisting arrest was not a crime of violence under Johnson because it reached conduct such as a "minor scuffle" in which a defendant kicked at officers who were attempting to place her in handcuffs. If the level of force in Dominguez–Maroyoqui and Flores–Cordero was not capable of causing physical pain or injury, then neither is the snatching of a purse from a victim's hand.

At oral argument, the government contended the armed robbery offense nonetheless satisfies the force clause because it encompasses a willingness to inflict bodily injury on a resisting victim if necessary. See Jones, 283 N.E.2d at 844. The Massachusetts cases do not require proof of a willingness to use such force. But even if they did, the force clause requires the actual, attempted or threatened use of physical force, see 18 U.S.C. § 924(e)(2)(B)(i), not a mere uncommunicated willingness or readiness to use such force. A willingness to use violent force is not the same as a threat to do so. The latter requires some outward expression or indication of an intention to inflict pain, harm or punishment. See Threat and Threaten, Webster's Third New International Dictionary 2382 (2002); Threat and Threaten, Am. Heritage Dictionary of the English Language 1813 (5th ed. 2011); Threat, Black's Law Dictionary (10th ed. 2014). The former does not.

For similar reasons, we are not persuaded a simple snatching necessarily entails an implied...