Ward v. United States

• Decision Date: 03 September 2019
• Docket Number: No. 17-35563,17-35563
• Citation: 936 F.3d 914
• Parties: Joshua Allen WARD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

936 F.3d 914

Joshua Allen WARD, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 17-35563

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 9, 2018

Submission Vacated October 10, 2018

Resubmitted September 3, 2019 Seattle, Washington

Filed September 3, 2019

Melissa D. Winberg (argued), Federal Defender Services of Idaho, Boise, Idaho, for Petitioner-Appellant.

Ann T. Wick (argued) and Syrena C. Hargrove, Assistant United States Attorneys; Bart M. Davis, United States Attorney; United States Attorney’s Office, Boise, Idaho; for Respondent-Appellee.

Before: Richard A. Paez and Carlos T. Bea, Circuit Judges, and C. Ashley Royal,^* District Judge.

PAEZ, Circuit Judge:

Joshua Allen Ward challenges his mandatory sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). He argues on appeal that the district court erroneously determined that his prior Minnesota state conviction for aiding and abetting simple robbery under Minn. Stat. Ann. § 609.24 is a "violent felony" under the ACCA’s force clause. Because the minimum force required to sustain a Minnesota simple robbery "includes the amount of force necessary to overcome a victim’s resistance," Stokeling v. United States , ––– U.S. ––––, 139 S. Ct. 544, 555, 202 L.Ed.2d 512 (2019), we affirm.

I.

Ward was convicted in 2012 of one count of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The ACCA provides that a person who violates § 922(g)(1) and who has "three previous convictions" for a "violent felony" shall be imprisoned for a minimum of 15 years. 18 U.S.C. § 924(e)(1). Over Ward’s objection to his designation as an "armed career criminal," the district court sentenced him to the 15-year mandatory minimum.

In 2015, the Supreme Court held that the ACCA’s residual clause under § 924(e)(2)(B)(ii) was unconstitutionally vague. See Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 2555–57, 192 L.Ed.2d 569 (2015) (" Johnson II "). Subsequently, in Welch v. United States , the Court held that Johnson II applies retroactively to cases on collateral review. ––– U.S. ––––, 136 S. Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

In 2016, Ward filed a motion in the district court pursuant to 28 U.S.C. § 2255(a) to vacate his sentence based on Johnson II . He argued that his prior convictions for burglary, aiding and abetting simple robbery, second-degree assault, and aggravated assault, fell under the invalidated residual clause of the ACCA and that he was therefore wrongfully sentenced. The government conceded that Ward’s two Minnesota burglary convictions did not qualify as violent felonies under 18 U.S.C. § 924(e) but maintained that Ward’s three other convictions qualified as predicate ACCA offenses. The district court agreed and denied Ward’s motion to vacate his sentence. The district court granted Ward’s motion for a certificate of appealability based on "varying interpretations by other courts" regarding his conviction for aiding and abetting Minnesota simple robbery. Ward timely appealed.

II.

We have jurisdiction under 28 U.S.C. §§ 2253(c) and 2255(d). The limited issue before us, which we review de novo, is whether Ward’s Minnesota conviction for aiding and abetting simple robbery qualifies as a predicate violent felony for sentencing purposes under the ACCA. See United States v. Parnell , 818 F.3d 974, 978 (9th Cir. 2016).

III.

The ACCA defines "violent felony" 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, [or] involves use of explosives ...." 18 U.S.C. § 924(e)(2)(B). Prior to Johnson II , 135 S. Ct. at 2556–57, crimes that "otherwise involve conduct that presents a serious potential risk of physical injury to another" also constituted "violent felonies" under 18 U.S.C. § 924(e)(2)(B)(ii) —known as the "residual clause." The Supreme Court, however, invalidated the ACCA residual clause as void for vagueness. See Johnson II , 135 S. Ct. at 2555, 2563. Thus, Ward’s prior conviction for simple robbery is a predicate offense only if it falls under either the "force clause" (also known as the "elements clause") of § 924(e)(2)(B)(i) or the "enumerated offenses clause" of § 924(e)(2)(B)(ii). The parties agree that the only issue we must decide is whether Minnesota simple robbery categorically involves "physical force" within the meaning of the ACCA’s force clause.¹

A.

We apply the familiar categorical approach, as outlined in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether a state offense is a violent felony under the ACCA’s force clause. See, e.g. , Parnell , 818 F.3d at 978. In doing so, we ask "whether the conduct proscribed by the statute necessarily involves ‘the use, attempted use, or threatened use of physical force against the person of another.’ " United States v. Geozos , 870 F.3d 890, 898 (9th Cir. 2017) (emphasis added) (quoting 18 U.S.C. § 924(e)(2)(B)(i) ). Prior to Johnson II , the Supreme Court held 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." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (" Johnson I "). Thus, under Johnson I , the force element of a predicate conviction must entail more than just the "slightest offensive touching." Id . at 139–41, 130 S.Ct. 1265.

Applying Johnson I , we have held that " ‘violent’ force must be ‘substantial’ and ‘strong,’ " and that "[t]he mere potential for some trivial pain or slight injury will not suffice." United States v. Walton , 881 F.3d 768, 773 (9th Cir. 2018) (quoting Johnson I , 559 U.S. at 140, 130 S.Ct. 1265 ); see id . at 774 (holding that Alabama armed robbery is not a violent felony under the ACCA); see also United States v. Molinar , 876 F.3d 953 (9th Cir. 2017), amended , 881 F.3d 1064, 1069–70 (9th Cir. 2018) (holding that Arizona armed robbery is not a crime of violence under the Sentencing Guideline’s force clause). This approach diverges from the one adopted by several of our sister circuits, like the Seventh and Eighth Circuits, which look to Justice Scalia’s concurrence in United States v. Castleman , 572 U.S. 157, 173–84, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), to suggest that "any number of forceful acts beyond simple touching" may "qualify as violent force in the sense that they have the capacity to inflict physical pain, if not concrete physical injury, upon the victim." United States v. Jennings , 860 F.3d 450, 457 (7th Cir. 2017) ; see also United States v. Pettis , 888 F.3d 962, 966 (8th Cir. 2018) (reaffirming that physical force under the ACCA encompasses "a jostle accompanied by a forceful pull—like [a] ‘blind-side bump, brief struggle, and yank’ ... [and] ‘involves a use of force that is capable of inflicting pain’ ").

Recently, the Supreme Court clarified that for robbery offenses, the "physical force" element under the ACCA "includes the amount of force necessary to overcome a victim’s resistance." Stokeling , 139 S. Ct. at 555. Thus, Florida robbery—defined as the taking of property with the use of force to overcome the resistance by the victim—qualifies as an ACCA violent felony. Id . at 549, 555.

In reaching this conclusion, the Court relied on the common law understanding of robbery as "an unlawful taking ... [which] involved ‘violence.’ " Id . at 550. It highlighted a few illustrative examples of common law robbery: "it was robbery ‘to seize another’s watch or purse, and use sufficient force to break a chain or guard by which it is attached to his person, or to run against another, or rudely push him about, for the purpose of diverting his attention and robbing him.’ " Id . "Similarly, it was robbery to pull a diamond pin out of a woman’s hair when doing so tore away hair attached to the pin." Id. In common law robbery, the core concern was whether the defendant applied force—any degree of force—that was sufficient to overcome a victim’s resistance, "however slight." Id . at 551. The Court then concluded that Congress adopted the common law meaning of "force" for robbery in the force clause of the ACCA. Id . ; see also id . at 551–52 ("By replacing robbery as an enumerated offense with a clause that has ‘force’ as its touchstone, Congress made clear that ‘force’ retained the same common-law definition that undergirded the original definition of robbery adopted a mere two years earlier."). This conclusion was "buttressed" by the fact that a significant majority of states defined nonaggravated robbery as requiring force that overcomes a victim’s resistance. Id . at 552.

Notably, the Court explained that its holding regarding Florida robbery was consistent with Johnson I , which addressed common law misdemeanor battery. Id . (citing Johnson I , 559 U.S. at 138, 130 S.Ct. 1265 ). The Court differentiated the force necessary for common law battery from that necessary for common law robbery. See id . at 552–53. While the former "does not require resistance or even physical aversion on the part of the victim," the latter involves "overpower[ing] a victim’s will" and necessarily involves a physical confrontation and struggle." Id . at 553.

B.

With Stokeling in mind, we turn to Minnesota simple robbery, which is defined as:

Whoever, having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person’s resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property is guilty of robbery.

Minn. Stat. Ann. § 609.24 (1986). The statute is satisfied when "the use of force or threats precede[s] or accompan[ies]...