Irma Ovalles v. United States
Opinion
The en banc Court remanded this appeal to the panel for further proceedings.
Ovalles v. United States
,
After
Sessions v. Dimaya
, 584 U.S. ----,
The en banc Ovalles II decision remanded this appeal to the panel to decide all other issues. We now do so by reinstating *1302 our ruling in Ovalles I insofar as it held that Ovalles's attempted carjacking conviction qualifies as a crime of violence under § 924(c)(3)(A) 's elements clause. We summarize what Ovalles I said and include additional analysis along the way.
I. BACKGROUND
In a 2010 written plea agreement, Ovalles pled guilty to six crimes: (1) a Hobbs Act robbery; (2) three carjackings; (3) an attempted carjacking; and (4) using and carrying a firearm during that attempted carjacking. 1 At the plea hearing, the government's factual proffer, which Ovalles admitted, detailed how Ovalles and others committed at gunpoint a robbery, three carjackings, and an attempted carjacking between December 12, 2008 and December 14, 2008.
Only the attempted carjacking and the firearm crime during that carjacking are relevant to this appeal. As to those counts, the presentence investigation report ("PSI") reported, as did the government's factual proffer, that on December 14, 2008, Ovalles and other gang members stopped a minivan by displaying firearms. The robbers ordered the driver and his daughter out of the vehicle. One robber hit the daughter with a baseball bat. They took the victims' money and cell phones at gunpoint. As the victims ran away, one robber fired several rounds from an AK-47 rifle in their direction. When a bystander fired back at the robbers, they fled in a pick-up truck. Our en banc opinion recounts Ovalles's crimes in more detail.
Ovalles II
,
The PSI grouped the robbery, the three carjackings, and the attempted carjacking, yielding an advisory guidelines range of 108 to 135 months' imprisonment. As to the § 924(c) firearm crime, Ovalles's advisory guidelines sentence was a consecutive ten years' imprisonment, the statutory minimum. Without objection, the district court adopted the PSI's facts and guidelines calculations. The district court imposed 108-month concurrent sentences on Ovalles's robbery, three carjackings, and attempted carjacking and a 120-month consecutive sentence on her § 924(c) firearm crime. Ovalles did not appeal.
In 2016, Ovalles pro se filed her § 2255 motion to vacate her § 924(c) conviction and sentence. After the court appointed counsel, Ovalles filed an amended § 2255 motion, which the district court denied. Ovalles timely appealed.
II. DISCUSSION
Section 924(c) provides for a mandatory consecutive sentence for any defendant who uses or carries a firearm during a crime of violence.
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, 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.
We apply the categorical approach to decide whether a predicate conviction satisfies the elements-clause definition.
See, e.g.
,
United States v. McGuire
,
The carjacking statute,
Whoever, 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, shall--(1) be fined under this title or imprisoned not more than 15 years, or both.
To convict a defendant of carjacking, the government must prove that the defendant: (1)
with the intent to cause death or serious bodily harm
; (2) took, or attempted to take, a motor vehicle; (3) that had been transported, shipped, or received in interstate or foreign commerce; (4) from the person or presence of another; (5)
by force and violence or intimidation
.
United States v. Diaz
,
This Court already has held that a § 2119 carjacking offense meets the requirements of § 924(c)(3)(A) 's elements clause.
In re Smith
,
A. Carjacking is Categorically a Crime of Violence
Ovalles's first contention on appeal is that our precedent is erroneous. Although bound by that precedent, we explain why Moore and In re Smith are correctly decided. Our inquiry under the categorical approach asks not only whether carjacking "by force and violence" qualifies, which it patently does, but also whether the taking of a vehicle from a person "by intimidation" qualifies, too.
The term "by intimidation" in the carjacking statute cannot be read in isolation, but must be considered along with the requisite intent, which means the intimidating act was conducted "with the intent to cause death or serious bodily harm."
*1304
Three other circuits have concluded that federal carjacking "by intimidation" requires at least a threat to use violent force and categorically qualifies as a crime of violence under § 924(c)(3)(A) 's elements clause.
See
United States v. Gutierrez
,
In concluding carjacking by intimidation is a violent crime, circuits have relied on decisions interpreting the analogous federal bank robbery statute, which proscribes bank robbery "by force and violence, or by intimidation."
See
In short, Moore and In re Smith correctly held that a § 2119 carjacking offense categorically qualifies under § 924(c)(3)(A) 's elements clause.
B. Attempted Carjacking is Categorically a Crime of Violence
Even so, Ovalles's next argument is that her conviction cannot qualify because
*1305
it was for only
attempted
carjacking. However, this Court already has concluded that attempted crimes of violence may also categorically qualify under § 924(c)(3)(A). Specifically, in
McGuire
, the § 924(c) defendant's predicate conviction was for "attempting" to set fire to, damage, destroy, disable, or wreck an aircraft, in violation of
Importantly, federal law, which governs an attempt of a federal crime, demonstrates why attempted carjacking qualifies under the elements clause. To be convicted of an "attempt" of a federal offense, a defendant must: (1) have the specific intent to engage in the criminal conduct she is charged with attempting; and (2) have taken a substantial step toward the commission of the offense that strongly corroborates her criminal intent.
United States v. Jockisch
,
Further, under federal law, attempted carjacking requires not mere preparation, but a substantial step toward taking the car by intimidation that corroborates that specific criminal intent. "A substantial step can be shown when the defendant's objective acts mark h[er] conduct as criminal and, as a whole, 'strongly corroborate the required culpability.' "
Yost
,
We can conceive of no plausible means by which a defendant could commit attempted carjacking absent a threatened or attempted use of force against a person. Applying the categorical approach, we consider "the plausible applications" of the carjacking statute, not mere "theoretical" possibilities of how a carjacking may occur.
See
*1306
Gonzales v. Duenas-Alvarez
,
Even assuming that the substantial step itself in an attempted carjacking offense falls short of actual or threatened violence, we also conclude that because a completed carjacking qualifies as a crime of violence, an attempt to commit that violent offense constitutes a crime of violence too. In reaching this alternative and independent ground for affirmance, we agree with, and adopt, the Seventh Circuit's approach to attempted violent crimes.
Hill v. United States
,
In
Hill
, the Seventh Circuit explained that "[w]hen a substantive offense would be a violent felony under § 924(e) and similar statutes, an attempt to commit that offense also is a violent felony."
See
Hill
,
Rejecting Hill's argument, the Seventh Circuit acknowledged that in attempt crimes the substantial step itself may not be actual or threatened force.
"Given the statutory specification [in § 924(e)(2)(B)(i) ] that an element of attempted force operates the same as an element of completed force, and the rule that conviction of attempt requires proof of intent to commit all elements of the completed crime," the Seventh Circuit concluded that when an offense, if completed, qualifies under the ACCA's elements clause, an attempt to commit that same offense also is a violent felony.
See
Hill
,
Analogously here, it makes no difference that Ovalles was convicted of only attempted carjacking. The federal attempt law requires that Ovalles intended to commit every element of a completed carjacking, *1307 including taking the vehicle from another person by force and violence or by intimidation and fully intending to cause death or bodily harm to that person if necessary to steal the vehicle. Similar to Hill 's analysis, Ovalles has by definition attempted to use or threaten force because she attempted to commit a crime that would be violent if completed. Thus, under Hill 's analysis, given § 924(c) 's elements clause equates an attempted force with actual or threatened force, and given that an attempt conviction requires an intent to commit all elements of the completed crime, attempted carjacking qualifies as a crime of violence under § 924(c)(3)(A) as well.
III. CONCLUSION
As an independent and alternative ground for affirmance of the denial of Ovalles's § 2255 motion, we hold that Ovalles's attempted carjacking conviction categorically qualifies as a crime of violence under § 924(c)(3)(A) 's elements clause. We therefore affirm Ovalles's § 924(c) conviction.
AFFIRMED.
The parties dispute whether Ovalles's appeal of the denial of her § 2255 motion is barred by the limited appeal waiver in her plea agreement. Because Ovalles's appeal lacks merit in any event, we need not reach the appeal waiver issue.
McGuire
held the defendant's attempt to disable an aircraft categorically qualified under
both
the residual and elements clauses.
Section 924(e) is the Armed Career Criminal Act ("ACCA").
See
Reference
- Full Case Name
- Irma OVALLES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
- Cited By
- 22 cases
- Status
- Published