U.S. Department
of Justice
United States v. Whittington Brief as Appellee
No. 17-10163
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee
v.
JUSTIN WHITTINGTON, Defendant-Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
BRIEF FOR THE UNITED STATES AS APPELLEE
JOHN M. GORE
Acting Assistant Attorney General
ERIN H. FLYNN
ROBERT A. KOCH
Attorneys
Department of Justice
Civil Rights Division
Appellate Section
Ben Franklin Station
P.O. Box 14403
Washington, D.C. 20044-4403
(202) 305-2302
TABLE OF CONTENTS PAGE
STATEMENT OF JURISDICTION..........................................................................1
STATEMENT OF THE ISSUES...............................................................................2
STATEMENT OF THE CASE..................................................................................2
1. Statement Of Facts................................................................................2
2. Procedural History................................................................................6
SUMMARY OF THE ARGUMENT ........................................................................9
STANDARD OF REVIEW.....................................................................................12
ARGUMENT
I WHITTINGTON WAS CONVICTED OF A CRIME OF VIOLENCE UNDER SECTION 3631 IN VIOLATION OF SECTION 924(c).................................................................................13
A. Section 3631 Requires Use Of The Modified Categorical Approach...............................................................15
B. Whittington’s Section 3631 Conviction Satisfies The Use-Of-Force Clause ................................................................19
C. Whittington’s Section 3631 Conviction Satisfies The Risk-Of-Force Clause ...............................................................23
1. Johnson II Did Not Invalidate The Risk-Of-Force Clause .............................................................................23
a. The risk-of-force inquiry under Section 924(c)(3)(B) is narrower than the risk-of-injury inquiry under the ACCA’sresidual clause......................................................27
TABLE OF CONTENTS (continued): PAGE
b. The risk-of-force inquiry is not tied to a confusing list of enumerated offenses .................................................................29
c. The Supreme Court has not repeatedly failed to craft a workable standard for the risk-of-force inquiry.......................................30
2. Whittington’s Section 3631 Conviction Naturally Involves A Substantial Risk Of Physical Force...........................................................32
II THE DISTRICT COURT PROPERLY SENTENCED WHITTINGTON.................................................................................32
CONCLUSION........................................................................................................35
STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM
- ii -
TABLE OF AUTHORITIES
CASES: PAGE
Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d 1146 (9th Cir. 2016) ............32
Descamps v. United States, 133 S. Ct. 2276 (2013).................................... 14-16, 18
Dimaya v. Lynch, 803 F.3d 1110, cert. granted, 137 S. Ct. 31 (2016)....................25
Graves v. City of Coeur D’Alene, 339 F.3d 828 (9th Cir. 2003) ..................... 21, 32
In re Hernandez, 857 F.3d 1162 (11th Cir. 2017)...................................................20
Independent Towers of Wash. v. Washington, 350 F.3d 925 (9th Cir. 2003) .........34
Johnson v. United States (Johnson I), 559 U.S. 133 (2010) ............................. 19-21
Mathis v. United States, 136 S. Ct. 2243 (2016) .............................................passim
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016).....................................13
Ovalles v. United States, 861 F.3d 1257 (11th Cir. 2017)........................... 24, 27-30
Taylor v. United States, 495 U.S. 575 (1990)..........................................................14
United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc)........................12
United States v. Amparo, 68 F.3d 1222 (9th Cir. 1995), cert. denied, 516 U.S. 1164 (1996).............................14
United States v. Andrews, 75 F.3d 552 (9th Cir.), cert. denied, 517 U.S. 1239 (1996)...........................12
United States v. Benally, 843 F.3d 350 (9th Cir. 2016)...........................................25
United States v. Cardena, 842 F.3d 959 (7th Cir. 2016).........................................24
United States v. Castillo-Marin, 684 F.3d 914 (9th Cir. 2012)...............................12
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CASES (continued): PAGE
United States v. Collins, 109 F.3d 1413 (9th Cir. 1997) .........................................34
United States v. Colvin, 353 F.3d 569 (7th Cir. 2003) (en banc), cert. denied, 543 U.S. 925 (2004)..................................................................18
United States v. Eshetu, 863 F.3d 946 (D.C. Cir. 2017) ................................. passim
United States v. Evans, 848 F.3d 242 (4th Cir.), cert. denied, 137 S. Ct. 2253 (2017)..............................................................20
United States v. Gasca-Ruiz, 852 F.3d 1167 (9th Cir.) (en banc) cert. denied, 2017 WL 3071946 (2017).........................................................12
United States v. Gilbert, 813 F.2d 1523 (9th Cir.), cert. denied, 484 U.S. 860 (1987)..................................................................16
United States v. Graham, 824 F.3d 421 (4th Cir. 2016) .........................................26
United States v. Hill, 832 F.3d 135 (2d Cir. 2016).......................................... passim
United States v. Johnson (Johnson II), 135 S. Ct. 2551 (2015) ...................... passim
United States v. Olano, 507 U.S. 725 (1993) ..........................................................26
United States v. Ponzo, 853 F.3d 558 (1st Cir. 2017).............................................26
United States v. Pospisil, 186 F.3d 1023 (8th Cir. 1999), cert. denied, 529 U.S. 1089 (2000).................... 21, 32
United States v. Prickett, 839 F.3d 697 (8th Cir. 2016) ........................ 24, 28, 30-31
United States v. Rafidi, 829 F.3d 437 (6th Cir. 2016).............................................20
United States v. Sahagun-Gallegos, 782 F.3d 1094 (9th Cir. 2015).......................14
United States v. Shields, 844 F.3d 819 (9th Cir. 2016)...........................................12
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CASES (continued): PAGE
United States v. Smith, 561 F.3d 934 (9th Cir.), cert. denied, 558 U.S. 956 (2009)........................................................... 21, 32
United States v. Spencer, 724 F.3d 1133 (9th Cir. 2013), cert. denied, 135 S. Ct. 51 (2014)..................................................................21
United States v. Taylor, 814 F.3d 340 (6th Cir. 2016) .......................... 24, 28, 30-32
United States v. Taylor, 848 F.3d 476 (1st Cir.), cert. denied, 137 S. Ct. 2255 (2017).............................................................20
United States v. Thompson, 82 F.3d 849 (9th Cir. 1996) ........................................25
United States v. Valenzuela, 495 F.3d 1127 (9th Cir. 2007) ...................................34
United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015) .....................................27
STATUTES:
Comprehensive Crime Control Act of 1984, 18 U.S.C. 924(c)........................................... passim
18 U.S.C. 924(c)(1)(A)..................................................................................13
18 U.S.C. 924(c)(1)(A)(iii)........................................................................8, 34
18 U.S.C. 924(c)(1)(B)(i)..........................................................................8, 34
18 U.S.C. 924(c)(3)...............................................................................passim
18 U.S.C. 924(c)(3)(A)..........................................................................passim
18 U.S.C. 924(c)(3)(B) ..........................................................................passim
Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)(1)........................................... 23-24
18 U.S.C. 924(e)(2)(B)(i) ........................................................................19-20
18 U.S.C. 924(e)(2)(B)(ii) ................................................................. 23-24, 29
Fair Housing Act, 42 U.S.C. 3631........................................................................................passim
42 U.S.C. 3631(a) ............................................................................... 6, 15, 17
42 U.S.C. 3631(b)..........................................................................................17
42 U.S.C. 3631(b)(1).....................................................................................17
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STATUTES (continued): PAGE
42 U.S.C. 3631(b)(2).....................................................................................17
42 U.S.C. 3631(c)..........................................................................................17
8 U.S.C. 1101(a)(43)(F).....................................................................................24-26
18 U.S.C. 16(b)..................................................................................................24-27
18 U.S.C. 1001...........................................................................................................7
18 U.S.C. 3231...........................................................................................................1
18 U.S.C. 3742...........................................................................................................1
26 U.S.C. 5861(d)......................................................................................................7
28 U.S.C. 1291...........................................................................................................1
GUIDELINE:
U.S.S.G. § 2H1.1(a)(1)............................................................................................34
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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 17-10163
UNITED STATES OF AMERICA, Plaintiff-Appellee
v.
JUSTIN WHITTINGTON, Defendant-Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
BRIEF FOR THE UNITED STATES AS APPELLEE
STATEMENT OF JURISDICTION
This appeal is from a judgment of conviction and sentence under the laws of the United States. The
district court had jurisdiction under 18 U.S.C. 3231. The court sentenced defendant Justin
Whittington to 180 months’ imprisonment and entered final judgment on April 10, 2017. E.R. 4-10.
Whittington timely appealed on April 13, 2017. E.R. 3. This Court has jurisdiction under 18
U.S.C. 3742 and 28 U.S.C. 1291.
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STATEMENT OF THE ISSUES
1. Whether defendant’s conviction for felony deprivation of housing rights under 42 U.S.C. 3631
constitutes a crime of violence under 18 U.S.C. 924(c).
2. Whether the district court properly sentenced defendant for his Section 924(c) violation.
STATEMENT OF THE CASE
1. Statement Of Facts
On December 19, 2012, Joe Nuno and his family returned home to Oildale, California, after a long
day trip to Long Beach. S.E.R. 117-119, 178, 189.1 Nuno’s wife unloaded the car, his teenage daughter carried supplies into the house, his teenage son locked the front gate for the night, and Nuno closed the driveway gate to fence in the family’s dogs. S.E.R. 122, 180. As Nuno neared the driveway gate, he noticed a purple PT Cruiser driving slowly down the street. S.E.R. 73, 122. The Cruiser crawled by their house and suddenly pulled over to the curb. S.E.R. 124.
Defendant Justin Whittington rode in the front passenger seat of the PT Cruiser while his brother,
Jesse Lamb, drove. S.E.R. 256, 258, 312. The two had been drinking all day and had stocked the
Cruiser with a sawed-off shotgun, an ax,
1 S.E.R. refers to the government’s supplemental excerpts of record, which provide the transcripts
and jury instructions omitted from appellant’s excerpts.
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and a large wrench before venturing out that evening. S.E.R. 254-255, 304, 387, 390, 394-395, 562.
The two also were members of a local white supremacist gang called the Oildale Peckerwoods. S.E.R.
245, 452-456, 461, 523-524, 532-533. Oildale had once been a stronghold of the Ku Klux Klan, and the Peckerwoods sought to drive out from the area any individuals perceived to be non-white. S.E.R. 525-527. Whittington in particular often walked around shirtless to display a large white supremacist tattoo on his stomach and frequently used the word “nigger,” even in front of his neighbors’ mixed-race children. S.E.R. 239-241, 247-248.
As Lamb pulled the PT Cruiser over to the curb, Whittington grabbed the sawed-off shotgun, loaded
it, and jumped out of the vehicle. S.E.R. 106-107, 144- 145, 184-185. Whittington approached Nuno,
who is Latino, and called him a “fucking nigger.” S.E.R. 163, 182, 562-563; see also S.E.R. 76.
Whittington then pointed the shotgun at Nuno and, from 15 yards away, pulled the trigger. S.E.R.
125, 141, 163, 182, 569-570, 577. Shotgun pellets flew by Nuno’s head. S.E.R. 81, 127. Nuno’s
wife screamed for her son to get inside and called 911. S.E.R. 183, 186, 199, 205. Whittington got
back in the PT Cruiser and yelled at Nuno and his family to “get the fuck out of Oildale!” S.E.R.
128, 186; see also S.E.R. 76. A few blocks over, the shotgun blew out the glass door of a
neighborhood
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convenience store owned by a man of Middle Eastern descent. S.E.R. 129, 187, 211-217, 220, 223-231,
562-563.
Whittington and Lamb returned to Whittington’s apartment complex. S.E.R. 257-258, 311-312.
Whittington wrapped the shotgun in work clothing and stowed it in the trunk of his car, a white
Crown Victoria. S.E.R. 258-259, 311, 416-418, 438, 444-446, 448, 553-554, 563. Whittington then
grabbed two beers out of the Cruiser, cracked them open, and told Lamb: “Just be cool. We didn’t
do anything.” S.E.R. 259, 313.
A police car on the lookout for a dark-colored PT Cruiser spotted Whittington and Lamb drinking
next to the purple Cruiser. S.E.R. 382-384. Whittington and Lamb told the officer that they had
been drinking at the apartment complex most of the evening and knew nothing about the purple
Cruiser. S.E.R. 387, 389. The officer felt that the hood of the Cruiser was still warm. S.E.R. 388- 389, 393. Once
backup arrived, a second officer obtained Whittington’s consent to search his apartment and Crown
Victoria. S.E.R. 411, 416, 433-434, 438. That officer found a used shotgun shell on Whittington’s
bedroom dresser and two live shotgun shells in a container under his bed. S.E.R. 444-446. A third
officer found the shotgun in the trunk of Whittington’s car as well as a second used shotgun shell
under a bush in the parking lot. S.E.R. 414-418, 448.
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The officer who had responded to the Nuno residence drove Nuno over to Whittington’s apartment
complex for a possible in-field identification. S.E.R. 83- 84, 131. First shown Lamb, Nuno said
that he did not recognize him. S.E.R. 86- 87, 132. Then shown Whittington, Nuno immediately
exclaimed “that’s him!
That’s him!” S.E.R. 88, 133-134. Nuno told the officer that he recognized Whittington’s dark
hoodie, khaki pants, facial features, shaved head, and forehead tattoo. S.E.R. 88, 108, 110,
133-134.
Officers took Whittington in for questioning. S.E.R. 450. They observed a blue bandana hanging out
of his back pocket—the gang color for the Oildale Peckerwoods. S.E.R. 453-454. Whittington once
again told the officers that he had nothing to do with the PT Cruiser. S.E.R. 455. He said that he
and Lamb had been drinking when a man by the name of “Charlie” pulled up in the PT Cruiser with a
masked man riding in the passenger seat and asked to store something in the trunk of Whittington’s
car, to which Whittington had agreed. S.E.R. 455-456.
Officers held Whittington for a day and then released him. S.E.R. 263, 459.
After being released, Whittington told his upstairs neighbor that he was leaving town because he
did not want to “go down” for the previous night’s events. S.E.R. 263. He told her that he had merely fired off a couple of shots for “target practice.” S.E.R. 264-265. He then fled to Michigan with his girlfriend. S.E.R.
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265-266. Within a few months, Nuno and his family moved to a different house across town out of
fear. S.E.R. 170, 175, 187-188; see also E.R. 22.
By April 2014, Whittington had returned to Oildale, and an FBI agent interviewed him about the
events on December 19, 2012. S.E.R. 550-551.
Whittington first told the agent that he and Lamb had been drinking when “Charlie” drove up in the
PT Cruiser. S.E.R. 552-553. He then said that “Charlie and Bubba” had been in the PT Cruiser.
S.E.R. 553. He also said that “Charlie” had offered him $1000 to store the shotgun in the trunk of
his car. S.E.R. 553-554.
The FBI ultimately arrested Whittington on September 28, 2015. S.E.R. 560, 801. When agents again
questioned him, Whittington admitted that he had lied to the FBI in April 2014, as “Charlie” never
existed. S.E.R. 560-561. He also admitted to most of the events of that evening but denied shooting
the shotgun. S.E.R. 562-563.
2. Procedural History
On September 24, 2015, a federal grand jury returned an indictment charging Whittington with four
felonies. E.R. 97-100. Count 1 charged that Whittington, “by force and threat of force,” willfully
intimidated and interfered with Nuno’s housing rights by “shouting racist slurs” and “fir[ing] a
shotgun” while Nuno and his family stood outside their home, in violation of 42 U.S.C. 3631(a).
E.R. 98. Count 2 charged that Whittington used, discharged, carried, and
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brandished a short-barreled shotgun during Count 1, a crime of violence, in violation of 18 U.S.C.
924(c). E.R. 98. Count 3 charged that Whittington knowingly possessed an unregistered
short-barreled shotgun in violation of 26 U.S.C. 5861(d). E.R. 98. And Count 4 charged that Whittington willfully made material false statements to an FBI agent about receiving the short-barreled shotgun from “Charlie,” in violation of 18 U.S.C. 1001. E.R. 99.
On the first day of trial, Whittington pleaded guilty to Count 3, possession of an unregistered
sawed-off shotgun. S.E.R. 20. He proceeded to trial on Counts 1, 2, and 4. S.E.R. 4-6, 21-22. The
jury convicted Whittington of all three counts, specifically finding for Count 2 that the firearm
was a short-barreled shotgun, that Whittington brandished the shotgun, and that Whittington
discharged the shotgun. E.R. 11-12; S.E.R. 717-718.
On March 13, 2017, the district court held an initial sentencing hearing. S.E.R. 723-754. For Counts 1, 3, and 4, which were grouped together for sentencing purposes, the Presentence Investigation Report recommended a total offense level of 32: a base offense level of 27 for attempted murder, a 3-level hate crime enhancement for targeting Nuno because of his perceived race and color, and a 2-level obstruction of justice enhancement for attempted witness intimidation. S.E.R. 728; PSR ¶¶ 34, 37-48. The Section 924(c) conviction on Count 2 separately carried a mandatory ten-year term of imprisonment to run consecutively
- 8 -
to any other sentence imposed. S.E.R. 728; PSR ¶ 39; 18 U.S.C. 924(c)(1)(A)(iii) & (B)(i). Neither
party objected to the calculations. S.E.R. 728. The district court, however, questioned whether
Whittington’s efforts “to intimidate, frighten, scare, and drive out” Nuno and his family most
closely resembled attempted murder for purposes of identifying the relevant underlying conduct for
sentencing on Counts 1, 3, and 4. S.E.R. 748. The court requested a supplemental PSR setting
forth an alternative guidelines calculation and sentencing recommendation. S.E.R. 748-751.
On April 10, 2017, the district court held a second sentencing hearing. E.R. 13-32. The probation officer had submitted a supplemental memorandum that recommended, in the alternative, a total offense level of 27 for Counts 1, 3, and 4: a base offense level of 18 for unlawful possession of a sawed-off shotgun, a 4-level enhancement for possessing the shotgun in connection with another felony, a 3- level hate crime enhancement, and a 2-level obstruction of justice enhancement. E.R. 15; Supplemental PSR ¶¶ 1-12. Once again, neither party objected to the calculations. E.R. 18-19.
The court adopted the alternative sentencing recommendation for unlawful possession of a sawed-off
shotgun. E.R. 19-20. This resulted in an advisory guidelines range of 87 to 108 months’
imprisonment on Counts 1, 3, and 4. E.R. 20. In light of Count 2’s mandatory term of 120 months’ imprisonment,
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Whittington’s relatively young age of 21 at the time of the offense, and the court’s perception of
how much Whittington had matured as a result of the trial, the court granted a downward variance to
60 months’ imprisonment on Counts 1, 3, and 4, to be served concurrently. E.R. 27-29. The court
also imposed the mandatory, consecutive 120 months’ imprisonment on Count 2, for a total term of
180 months’ imprisonment. E.R. 29.
SUMMARY OF THE ARGUMENT
Whittington raises no challenge to his conviction and sentence on Counts 1, 3, and 4. Instead, he
raises two arguments under Count 2, neither of which he raised below, and neither of which has
merit. First, he argues that his Count 2 conviction for use of a firearm during a crime of
violence, in violation of 18 U.S.C. 924(c), cannot stand because his predicate felony conviction in
Count 1 for interfering with housing rights, in violation of 42 U.S.C. 3631, is not a crime of
violence under this Court’s categorical approach. Whittington is wrong.
As an initial matter, courts use a “categorical approach” to determine whether an offense qualifies
as a crime of violence under Section 924(c): they compare the statutory elements of the predicate
offense with the text of Section 924(c)(3) to determine whether the former necessarily satisfies
the latter. If a statute lists elements in the alternative, courts use a “modified categorical
approach” to determine of what crime, with what elements, a defendant was
- 10 -
charged and convicted. That crime is then compared with the text of Section 924(c)(3) as the
categorical approach commands.
Here, determining whether a violation of Section 3631 constitutes a “crime of violence” for
purposes of Section 924(c) requires use of the modified categorical approach, as Section 3631 lists
alternative elements that define different crimes with different punishments, including misdemeanor
and felony offenses. Under that approach, Whittington was charged with and convicted of the
statutory elements of interfering with housing rights with “force or threat of force” that
“include[d] the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire.”
See 42 U.S.C. 3631; see also E.R. 98; S.E.R. 785-786.
Whittington’s conviction under Section 3631 easily satisfies both clauses of Section 924(c)—the
use-of-force clause and the risk-of-force clause—either of which is sufficient for this Court to
affirm his Section 924(c) conviction. Under the use-of-force clause, Whittington’s use of force
and of a dangerous weapon, explosives, or fire necessarily required “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). Alternatively, under the risk-of-force clause, Whittington’s use of a dangerous
weapon, explosives, or fire, “by its nature, involve[d] a substantial risk that physical force
against the person or property of another may be used in the course of committing the offense.” 18
U.S.C. 924(c)(3)(B).
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Whittington challenges the risk-of-force clause as unconstitutionally vague in light of United
States v. Johnson (Johnson II), 135 S. Ct. 2551 (2015). This Court need not, and should not, reach
that constitutional question. As discussed above, this Court can affirm Whittington’s Count 2
conviction under the use-of- force clause, Section 924(c)(3)(A). In addition, Whittington cannot
satisfy his onerous burden under the plain-error standard of review. In Johnson II, the Supreme
Court struck down the residual clause of the Armed Career Criminal Act as unconstitutionally vague.
Neither the Supreme Court nor this Court has yet decided whether Johnson II applies to the
risk-of-force clause in Section 924(c)(3)(B). Whittington therefore cannot demonstrate any error
that was plain. Finally, even if Whittington had preserved his constitutional challenge for appeal,
it is meritless. The combination of factors that conspired to render the residual clause
void-for-vagueness under that statute are all absent from Section 924(c)(3)(B).
Second, Whittington argues that the district court erred in sentencing him to a consecutive term of
120 months’ imprisonment on Count 2. Whittington is mistaken. Section 924(c) mandates a consecutive
minimum term of imprisonment of ten years if the defendant discharges any firearm or possesses a
short-barreled shotgun. Here, the jury specifically found Whittington guilty of both elements.
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The district court thus properly applied the statute, and no basis exists to disturb Whittington’s
sentence.
STANDARD OF REVIEW
This Court reviews Whittington’s arguments, raised for the first time on appeal, for plain error.
Br. 8, 15, 19; United States v. Castillo-Marin, 684 F.3d 914, 918 (9th Cir. 2012). Whittington must
demonstrate “(1) error, (2) that is plain, and (3) that affects substantial rights.” United States
v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc). If those factors are met, this Court
“may exercise its discretion to notice a forfeited error that (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Ibid. (internal quotation marks omitted).
In examining whether error occurred, this Court reviews de novo whether a predicate offense
constitutes a crime of violence under 18 U.S.C. 924(c). United States v. Andrews, 75 F.3d 552, 557
(9th Cir.), cert. denied, 517 U.S. 1239 (1996); see also United States v. Gasca-Ruiz, 852 F.3d
1167, 1174 (9th Cir.) (en banc), cert. denied, 2017 WL 3071946 (2017). An error is plain if it is
“clear and obvious,” United States v. Shields, 844 F.3d 819, 823 (9th Cir. 2016) (citation
omitted), “at the time of appeal,” Ameline, 409 F.3d at 1078 (internal quotation marks omitted). An
error affects substantial rights if the defendant can “show a reasonable probability that, but for
the error, the outcome of the proceedings would
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have been different.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (citation
omitted).
ARGUMENT I
WHITTINGTON WAS CONVICTED OF A CRIME OF VIOLENCE UNDER SECTION 3631 IN VIOLATION OF SECTION 924(c)
Whittington challenges his Count 2 conviction for discharging a short- barreled shotgun during a
crime of violence in violation of 18 U.S.C. 924(c). Br. 8-19. He argues that his predicate felony offense in Count 1, using force and threat of force to interfere with housing rights in violation of 42 U.S.C. 3631, is not a crime of violence. Br. 8-19. He therefore contends that the district court erred in instructing otherwise and that his conviction must be vacated.2 See Br. 9-10, 15. This argument, which Whittington failed to raise below, is subject to review only for plain error. The district court committed no error, much less plain error.
Section 924(c)(1)(A) imposes a mandatory consecutive term of imprisonment when a defendant uses or
carries a firearm during a crime of violence, or possesses a firearm in furtherance of a crime of
violence. A predicate offense qualifies as a crime of violence if it is a felony that:
(A) has as an element the use, attempted use, or threatened use of physical force against the
person or property of another, or
2 Jury Instruction 18 stated: “I instruct you that Interference with Housing Rights, as charged in
Count One, is a federal crime of violence.” S.E.R. 789.
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(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. 18 U.S.C. 924(c)(3).
As a general matter, courts use a “categorical approach” to determine whether an offense qualifies
as a crime of violence under Section 924(c). United States v. Amparo, 68 F.3d 1222, 1224 (9th Cir.
1995), cert. denied, 516 U.S. 1164 (1996). Under the categorical approach, a court compares the
elements of the predicate offense with the text of Section 924(c)(3) to determine whether the
former necessarily satisfies the latter. See Descamps v. United States, 133 S. Ct. 2276, 2281
(2013); United States v. Sahagun-Gallegos, 782 F.3d 1094, 1098 (9th Cir. 2015). A court “may look
only to ‘the elements of the [offense], not to the facts of [the] defendant’s conduct.’” Mathis v.
United States, 136 S. Ct. 2243, 2251 (2016) (alteration in original) (quoting Taylor v. United
States, 495 U.S. 575, 601 (1990)).
Courts use a “modified categorical approach” when a single statute “list[s] elements in the
alternative, and thereby define[s] multiple crimes.” Mathis, 136 S. Ct. at 2249; see
Sahagun-Gallegos, 782 F.3d at 1098. Such a statute is considered “divisible” because it “renders
opaque which element played a part in the defendant’s conviction.” Descamps, 133 S. Ct. at 2283.
In that case, a court “looks to a limited class of documents (for example, the indictment, jury
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instructions, or plea agreement and colloquy) to determine what crime, with what elements, a
defendant was convicted of.” Mathis, 136 S. Ct. at 2249. A court “then compare[s] that crime, as
the categorical approach commands,” with the text of Section 924(c)(3). See ibid.
Whittington’s predicate offense was his Count 1 conviction for using force to interfere with
housing rights in violation of 42 U.S.C. 3631(a). E.R. 98; S.E.R. 788-789. For the reasons
discussed below, Section 3631 is a divisible statute that defines multiple crimes, both
misdemeanors and felonies. The statute therefore requires use of the modified categorical approach.
Under the modified categorical approach, Whittington was charged with and convicted of felony
interference with housing rights with “force or threat of force” that “include[d] the use,
attempted use, or threatened use of a dangerous weapon, explosives, or fire.” 42 U.S.C.
3631. Such a crime satisfies Section 924(c)’s use-of-force clause, 18 U.S.C. 924(c)(3)(A), as well
as its risk-of-force clause, 18 U.S.C. 924(c)(3)(B), either of which provides an independent basis
for affirmance.
A. Section 3631 Requires Use Of The Modified Categorical Approach
A criminal statute is divisible for purposes of the categorical approach when it “comprises
multiple, alternative versions of the crime.” Descamps, 133 S. Ct. at 2284. For example, a statute
may list multiple elements disjunctively, or different statutory alternatives may carry different
punishments. See Mathis, 136 S. Ct. at
- 16 -
2249, 2256. When that is so, courts use the modified categorical approach to determine which
elements comprised the defendant’s crime. Mathis, 136 S. Ct. at 2249; Descamps, 133 S. Ct. at 2284.
The Fair Housing Act, 42 U.S.C. 3631, “describes both protected and prohibited activities” to
further the goal of providing fair housing throughout the country. United States v. Gilbert, 813
F.2d 1523, 1526-1527 (9th Cir.), cert. denied, 484 U.S. 860 (1987). As relevant here, the statute
provides that:
Whoever, whether or not acting under color of law, by force or threat of force willfully injures,
intimidates or interferes with, or attempts to injure, intimidate or interfere with--
(a) any person because of his race, color, religion, sex, handicap (as such term is defined in
section 3602 of this title), familial status (as such term is defined in section 3602 of this
title), or national origin and because he is or has been selling, purchasing, renting, financing,
occupying, or contracting or negotiating for the sale, purchase, rental, financing or occupation of
any dwelling * * * * * * *
shall be fined under Title 18 or imprisoned not more than one year, or both; and if bodily injury
results from the acts committed in violation of this section or if such acts include the use,
attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined under
Title 18 or imprisoned not more than ten years, or both; and if death results from the acts
committed in violation of this section or if such acts include kidnapping or an attempt to kidnap,
aggravated sexual abuse or an attempt to commit
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aggravated sexual abuse, or an attempt to kill, shall be fined under Title 18 or imprisoned for any
term of years or for life, or both. 42 U.S.C. 3631.
As the face of the statute shows, Section 3631 always prohibits the use of “force or threat of
force” to interfere with housing rights. In doing so, Section 3631 creates a myriad of different
crimes, each with its own set of elements.3 Most pertinent to this appeal, the statute also
provides a number of aggravating factors that elevate any of the enumerated crimes from a
misdemeanor to a felony. Specifically, the offense becomes a felony if the use of “force or threat
of force” results in “bodily injury”; “include[s] the use, attempted use, or threatened use of a dangerous
weapon, explosives, or fire”; results in “death”; or “include[s] kidnapping or an attempt to
kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to
kill.” 42 U.S.C. 3631. An aggravating factor elevates the maximum punishment under the statute from
one year’s imprisonment to ten years’ or life imprisonment, depending on which factor element is
charged and found by the jury. See ibid.
3 In addition to the conduct prohibited under Section 3631(a), the statute, set forth in its
entirety in the Addendum, criminalizes further conduct under Sections 3631(b) and (c). See, e.g.,
42 U.S.C. 3631(b)(1) (prohibiting intimidating someone from occupying a dwelling on account of
race); 42 U.S.C. 3631(b)(2) (prohibiting intimidating someone from affording another person an
opportunity to occupy a dwelling on account of race); 42 U.S.C. 3631(c) (prohibiting discouraging
someone from aiding another to occupy a dwelling on account of race).
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Because Section 3631 defines multiple crimes with different statutory alternatives that carry
different punishments, the statute is divisible. See Mathis, 136 S. Ct. at 2256; see also United
States v. Colvin, 353 F.3d 569, 575 (7th Cir. 2003) (en banc) (“[Section] 3631, we think, describes
separate offenses, and not one offense with varying punishments.”), cert. denied, 543 U.S. 925
(2004). It thus requires use of the modified categorical approach to determine which elements
comprised Whittington’s felony predicate offense. Mathis, 136 S. Ct. at 2249; Descamps, 133 S. Ct.
at 2284. This is particularly so where a violation of Section 3631 constitutes a felony, and can
serve as a predicate offense under Section 924(c), only if a jury finds one of the
aggravating-factor elements.
Here, Whittington’s predicate felony offense in Count 1 required the jury to find, as separate
elements, that Whittington: “used force or threat of force”; “willfully intimidated or interfered
with J.N., or attempted to injure, intimidate or interfere with J.N.”; “acted because J.N. was
occupying a dwelling and because of race, color, or national origin”; and engaged in conduct that
“involved the use, attempted use, or threatened use of a dangerous weapon.” S.E.R. 786-787; see
E.R. 98; see also 42 U.S.C. 3631. A jury therefore found Whittington guilty of the statutory
elements of interfering with housing rights “by force or threat of force” with “the use, attempted
use, or threatened use of a dangerous weapon, explosives, or fire.” See 42 U.S.C. 3631.
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Whittington argues, without any support or analysis, that “[t]here is no need to use a modified
categorical approach to determine the elements.” Br. 19. He acknowledges that statutory
alternatives that carry different punishments are considered different statutory elements under the
categorical approach. Br. 19 (citing Mathis, 136 S. Ct. at 2256). But he fails to recognize that,
as a result, this Court must look beyond the face of the statute “to a limited class of documents
* * * to determine what crime, with what elements” he was convicted of in order to ascertain
whether the offense is categorically a crime of violence. Mathis, 136 S. Ct. at 2249.
B. Whittington’s Section 3631 Conviction Satisfies The Use-Of-Force Clause
Section 924(c)’s use-of-force clause defines a crime of violence as a felony that “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). Congress used similar statutory text to define a violent
felony under the Armed Career Criminal Act, omitting only the phrase “or property.” See 18 U.S.C.
924(e)(2)(B)(i) (“the use, attempted use, or threatened use of physical force against the person of
another”). In that context, the Supreme Court has interpreted physical force against a person to
require a showing of “violent force—that is, force capable of causing physical pain or injury to
another person.” Johnson v. United States (Johnson I), 559 U.S. 133, 140 (2010) (citation omitted).
For example, “a slap in
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the face” meets the standard as a “degree of force necessary to inflict pain,” but the “merest
touch” does not. Id. at 143.
All circuits to have addressed the issue have adopted the Johnson I definition of physical force
under Section 924(e)(2)(B)(i) to determine the level of force required against a person to qualify
as a crime of violence under the use-of- force clause, Section 924(c)(3)(A). See United States v.
Taylor, 848 F.3d 476, 491 (1st Cir.), cert. denied, 137 S. Ct. 2255 (2017); United States v. Evans,
848 F.3d 242, 245 (4th Cir.), cert. denied, 137 S. Ct. 2253 (2017); United States v. Rafidi,
829 F.3d 437, 445 (6th Cir. 2016); In re Hernandez, 857 F.3d 1162, 1166 (11th Cir. 2017); see also
United States v. Hill, 832 F.3d 135, 142 & n.9 (2d Cir. 2016) (assuming without deciding that
Johnson I applied to the use-of-force clause).
Courts thus have required a showing of the use, attempted use, or threatened use of “physical
force” that is “capable of causing physical pain or injury to another person.”4 See Johnson I, 559
U.S. at 140.
Here, Whittington’s conviction under Section 3631 satisfies the use-of-force clause because the
plain text of the statute requires the use of “force or threat of
4 This case does not present the question of what level of physical force is required against the
property of another to qualify as a crime of violence under Section 924(c)(3)(A), a question on
which the United States takes no position in this appeal. See Hill, 832 F.3d at 142 n.9 (leaving
open the question of Johnson I’s implication on the use-of-force clause in light of the “or
property” phrase of Section 924(c)(3)(A)).
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force.” 42 U.S.C. 3631. In addition, his conviction easily meets the Johnson I standard, should
that level of force be required under Section 924(c)(3)(A). As discussed above, Whittington was
convicted of the statutory elements of using “force or threat of force” that “include[d] the use,
attempted use, or threatened use of a dangerous weapon, explosives, or fire.” 42 U.S.C. 3631. The
applicable aggravating-factor element lists three means, each of which is physical force capable of
causing physical pain or injury—indeed, significant pain or injury. A dangerous weapon is a weapon
that is “inherently dangerous or otherwise used in a manner likely to endanger life or inflict
great bodily harm.” United States v. Smith, 561 F.3d 934, 939 (9th Cir.) (internal quotation marks omitted), cert. denied, 558 U.S. 956 (2009). Explosives can “potentially kill, maim, or injure scores of people.” Graves v. City of Coeur D’Alene, 339 F.3d 828, 843 n.19 (9th Cir. 2003). And “fire is generally dangerous to others.” United States v. Spencer, 724 F.3d 1133, 1141 (9th Cir. 2013), cert. denied, 135 S. Ct. 51 (2014); see also United States v. Pospisil, 186 F.3d 1023, 1031 (8th Cir. 1999) (holding that “the use or attempted use of fire” under Section 3631 qualifies as a crime of violence under Section 924(c)), cert. denied, 529 U.S. 1089 (2000).
Whittington essentially argues that a basic offense under Section 3631, without any aggravating
factor, is not categorically a crime of violence. See Br. 11-15, 17-18. His argument is
inapposite: for the reasons discussed in Argument
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I.A, supra, Section 3631 requires the modified categorical approach, which examines all of the
elements of Whittington’s conviction, including his aggravating-factor element. He also ignores the
plain text of the statute, which criminalizes “force or threat of force.” 42 U.S.C. 3631.
Regardless, a basic offense would fail to satisfy the definition of a crime of violence for the
simple reason that a violation of Section 3631, absent an aggravating factor, is a misdemeanor. See
18 U.S.C. 924(c)(3) (“the term ‘crime of violence’ means an offense that is a felony”).
In short, using “force or threat of force” that “include[s] the use, attempted use, or threatened
use of a dangerous weapon, explosives, or fire” is necessarily the use, attempted use, or
threatened use of physical force capable of causing physical pain or injury. The elements of
Whittington’s felony conviction under Section 3631 therefore qualify as a crime of violence under
the use-of-force clause in Section 924(c)(3)(A).5 The district court thus did not err, much less
plainly err, in instructing the jury that Count 1, “as charged,” constituted a crime of violence.
5 Indeed, all felony violations of Section 3631 satisfy the categorical approach, as each of the
statute’s enumerated aggravating factors necessarily involves the use, attempted use, or threatened
use of physical force capable of causing physical pain or injury. See 42 U.S.C. 3631 (elevating an
offense to a felony only if a “force or threat of force” results in “bodily injury”; “include[s]
the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire”; results in
“death”; or “include[s] kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt
to commit aggravated sexual abuse, or an attempt to kill”).
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See S.E.R. 789. As a result, this Court can and should affirm Whittington’s Count 2 conviction
under the use-of-force clause without having to reach his constitutional challenge to the
risk-of-force clause.
C. Whittington’s Section 3631 Conviction Satisfies The Risk-Of-Force Clause
Section 924(c)’s risk-of-force clause alternately defines a crime of violence as a felony “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.” 18 U.S.C. 924(c)(3)(B). Whittington
does not argue that his Section 3631 conviction fails to satisfy the risk-of-force clause, nor
could he, as discussed below in Argument I.C.2, infra. Instead, he attacks the risk-of-force
clause itself as unconstitutionally vague in light of Johnson v. United States (Johnson II), 135
S. Ct. 2551 (2015). See Br. 10-11, 15-17. Because Whittington’s felony conviction under Section
3631 constitutes a crime of violence under Section 924(c)’s use-of-force clause, this Court need
not, and should not, reach his argument under the risk-of-force clause. Regardless, Whittington is
mistaken.
1. Johnson II Did Not Invalidate The Risk-Of-Force Clause
In Johnson II, the Supreme Court held that the residual clause of the Armed Career Criminal Act
(ACCA), 18 U.S.C. 924(e)(2)(B)(ii), is unconstitutionally vague. See 135 S. Ct. at 2563. The ACCA
is a federal recidivist statute that enhances the mandatory minimum sentence for felons who commit
crimes with
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firearms and who have “three previous convictions * * * for a violent felony or a serious drug
offense.” 18 U.S.C. 924(e)(1). Section 924(e)(2)(B)(ii) defines violent felonies to include an
offense that “is burglary, arson, or extortion, involves the use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C.
924(e)(2)(B)(ii). The four specified offenses are commonly referred to as the enumerated clause.
The rest of the statute—“otherwise involves conduct that presents a serious potential risk of
physical injury to another”—is the residual clause that Johnson II struck down as
unconstitutionally vague.
A near unanimity of circuits has rejected calls to extend Johnson II to strike down Section
924(c)’s risk-of-force clause. The Second, Sixth, Eighth, Eleventh, and D.C. Circuits have held
that the combination of factors that conspired to render the ACCA’s residual clause
void-for-vagueness are all absent from Section 924(c)(3)(B). See United States v. Hill, 832 F.3d
135, 145-150 (2d Cir. 2016); United States v. Taylor, 814 F.3d 340, 375-379 (6th Cir. 2016); United
States v. Prickett, 839 F.3d 697, 698-700 (8th Cir. 2016); Ovalles v. United States, 861 F.3d
1257, 1263-1267 (11th Cir. 2017); United States v. Eshetu, 863 F.3d 946, 954-955 (D.C. Cir. 2017).
But see United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016) (striking down the risk-of-force clause by summarily citing to a decision invalidating a different statute in the immigration context, 18 U.S.C. 16(b)).
- 25 -
This Court has not yet decided what impact, if any, Johnson II has on Section 924(c)’s
risk-of-force clause. This Court’s decision in Dimaya v. Lynch, 803 F.3d 1110, cert. granted, 137
S. Ct. 31 (2016) (argued Oct. 2, 2017), is inapposite. In Dimaya, this Court held that 18 U.S.C.
16(b), as incorporated into the Immigration and Nationality Act’s definition of aggravated felony,
8 U.S.C. 1101(a)(43)(F), is unconstitutionally vague under Johnson II. 803 F.3d at 1120. To be
sure, Section 16(b), the U.S. Code’s general statutory definition for a crime of violence, uses
text identical to Section 924(c)(3)(B) to define a risk of force.
But this Court in Dimaya explicitly limited its holding to the vague operation of Section 16(b) as
incorporated into Section 1101(a)(43)(F). Id. at 1120 n.17.
Dimaya thus did not decide the constitutionality of Section 16(b)’s application to other statutes,
much less the constitutionality of Section 924(c)(3)(B). See ibid. Contrary to Whittington’s bare
assertion (Br. 16), Dimaya does not control here. Cf. United States v. Benally, 843 F.3d 350,
352-354 (9th Cir. 2016) (using the categorical approach to analyze a crime under Section
924(c)(3)(B) without citing or applying Dimaya or Johnson II).
Because this Court has not yet decided whether Johnson II implicates Section 924(c)(3)(B), any
error in this case was not plain, and Whittington’s challenge must fail. See United States v.
Thompson, 82 F.3d 849, 855-856 (9th Cir. 1996) (holding that this Court cannot correct an error
under plain error review
- 26 -
“unless the error is clear under current law”) (quoting United States v. Olano, 507
U.S. 725, 734 (1993)); see also United States v. Ponzo, 853 F.3d 558, 585-586 (1st Cir. 2017)
(rejecting a vagueness challenge to Section 924(c)(3)(B) under plain error review); United States
v. Graham, 824 F.3d 421, 424 n.1 (4th Cir. 2016) (en banc) (same).
Should this Court nevertheless reach the question whether Johnson II renders the risk-of-force
clause unconstitutionally vague, it should join the Second, Sixth, Eighth, Eleventh, and D.C.
Circuits and decline to extend Johnson II or Dimaya to strike down the risk-of-force clause in
Section 924(c)(3)(B). The Supreme Court struck down the ACCA’s residual clause based on a
combination of factors that conspired to render the clause unconstitutionally vague. Johnson II,
135 S. Ct. at 2560 (“Each of the uncertainties in the residual clause may be tolerable in
isolation, but their sum makes a task for us which at best could be only guesswork.”) (internal
quotation marks omitted). As discussed below, each of those factors is absent here. First, the
contemporaneous risk-of-force inquiry under Section 924(c)(3)(B) is narrower than the historical
risk-of-injury inquiry under the ACCA’s residual clause. Second, the risk-of-force inquiry is not
tied to a confusing list of enumerated offenses. And third, the Supreme Court has not repeatedly
failed to craft a workable standard for the risk-of-force inquiry.
- 27 -
Accordingly, this Court should hold that Section 924(c)’s risk-of-force clause is not
unconstitutionally vague under Johnson II.6
a. The risk-of-force inquiry under Section 924(c)(3)(B) is narrower than the risk-of-injury inquiry
under the ACCA’s residual clause
The Supreme Court in Johnson II found problematic the ACCA’s requirement, under Section 924(e)’s
residual clause, that a court assess the potential risk of injury from a previous predicate
offense. See 135 S. Ct. at 2557. Such an inquiry required courts to “go[] beyond evaluating the
chances that the physical acts that make up the crime will injure someone” and, instead, evaluate
the risk for injury even after completion of the offense. Ibid. By requiring a court to consider
post-offense conduct in assessing potential risk, the ACCA created an
6 The Seventh Circuit’s decision in United States v. Cardena holds little persuasive weight. In
Cardena, the Seventh Circuit extended Johnson II to strike down the risk-of-force clause in Section
924(c)(3)(B) by summarily citing to that court’s prior decision invalidating Section 16(b)’s
incorporation into Section 1101(a)(43)(F), without analyzing or even identifying the differences
between the two statutes. See 842 F.3d at 996 (citing United States v. Vivas-Ceja, 808 F.3d 719,
721 (7th Cir. 2015)); see also Ovalles, 861 F.3d at 1267 (criticizing Cardena). Section 16(b), in
the immigration context, operates as a recidivist statute that “requires the federal court to look
back at prior criminal history and evaluate, often under divergent state laws, whether a prior
conviction was an aggravated felony.” Ovalles, 861 F.3d at 1267. Section 924(c)(3)(B), by contrast,
requires a court to make a contemporaneous assessment of the nexus and risk of force between the
firearm offense and a predicate crime of violence. Ibid. This specific assessment is central to
Section 924(c)(3)(B)’s constitutionality, as discussed infra.
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“indetermina[te],” “wide-ranging inquiry” that “denie[d] fair notice to defendants and invite[d]
arbitrary enforcement by judges.” Ibid.
Section 924(c)(3)(B), on the other hand, focuses on the risk of the use of force, not a broader
risk of injury. This distinction is critical. It narrows the inquiry to “more concrete conduct” by
asking whether force might arise “in the course of committing the offense,” rather than asking
whether “actions may produce a potential risk of physical injury in a more tangential or attenuated
way.” Ovalles, 861 F.3d at 1266; see Eshetu, 863 F.3d at 954-955. It also provides “a temporal
restriction on the scope of the risk analysis” by confining a court’s analysis to the offense
itself. Ovalles, 861 F.3d at 1266; see Taylor, 814 F.3d at 377; Eshetu, 863 F.3d at 955. Under the
risk-of-force clause, “the force must be used and the risk must arise in order to effectuate the
crime.” Taylor, 814 F.3d at 377; see Prickett, 839 F.3d at 699 (quoting Taylor). “Determining
whether the offense itself involves force is far easier than puzzling over a crime’s epilogue.”
Eshetu, 863 F.3d at 955. As a result, Section 924(c)’s risk-of-force clause “is both narrower and
easier to construe” than the ACCA’s residual clause. Hill, 832 F.3d at 148.
In addition, unlike the ACCA, Section 924(c)(3)(B) does not identify predicate convictions for the
purpose of a recidivist enhancement. Rather, a crime of violence, if committed with sufficient
nexus to a firearm, is a new offense under
- 29 -
Section 924(c)(3)(B). The statute therefore narrows the type of offenses that might serve as
predicate crimes of violence to those that could be committed with sufficient nexus to a firearm.
Ovalles, 816 F.3d at 1266. This nexus requirement provides context for the categorical inquiry,
which “makes the crime of violence determination more precise,” “sharpen[s] its focus[,] and
make[s] its application more predictable.” Id. at 1265-1266.
b. The risk-of-force inquiry is not tied to a confusing list of enumerated offenses
In Johnson II, the Supreme Court also found challenging the residual clause’s requirement under
Section 924(e) that a court assess potential risk of injury relative to the four enumerated
offenses, each of which varied in its own indeterminate level of risk. See 135 S. Ct. at 2558; 18
U.S.C. 924(e)(2)(B)(ii). “By combining indeterminacy about how to measure the risk posed by a crime
with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the
residual clause produce[d] more unpredictability and arbitrariness than the Due Process Clause
tolerates.” Johnson II, 135 S. Ct. at 2558; see also id. at 2559 (“The inclusion of burglary and
extortion among the enumerated offenses suggests that a crime may qualify under the residual clause
even if the physical injury is remote from the criminal act. But how remote is too remote? Once
again, the residual clause yields no answers.”). The Court explicitly stated that its holding did
not threaten most laws involving the assessment of risk,
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because most laws do not “link[] a phrase such as ‘substantial risk’ to a confusing list of
examples.” Id. at 2561.
Here, the risk-of-force clause in Section 924(c)(3)(B) “contains no mystifying list of offenses and
no indeterminate ‘otherwise’ phraseology.” Hill, 832 F.3d at 146; see Ovalles, 861 F.3d at 1265
(quoting Hill); Eshetu, 863 F.3d at 954. As a result, a court does not have to “analogiz[e] the
level of risk involved in a defendant’s conduct to burglary, arson, extortion, or the use of
explosives.” Taylor, 814 F.3d at 377; see Prickett, 839 F.3d at 700 (quoting Taylor); Eshetu, 863
F.3d at 954. Instead, “a court’s analysis of whether there is a risk of force is confined to the
offense itself.” Taylor, 814 F.3d at 377; see Eshetu, 863 F.3d at 954. The risk-of-force clause
under Section 924(c)(3)(B) therefore involves a more concrete and less attenuated inquiry than the
residual clause under Section 924(e).
c. The Supreme Court has not repeatedly failed to craft a workable standard for the risk-of-force
inquiry
The Supreme Court in Johnson II further found determinative its own “repeated attempts and repeated
failures to craft a principled and objective standard out of the residual clause.” 135 S. Ct. at
2558. The case was the Supreme Court’s “fifth about the meaning of the residual clause,” id. at
2559, and lower courts had “pervasive disagreement about the nature of the inquiry one is supposed
to conduct and the kinds of factors one is supposed to consider,” id. at 2560. The Court
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concluded that “[n]ine years’ experience trying to derive meaning from the residual clause
convinces us that we have embarked upon a failed enterprise.” Id. at 2560.
By contrast, the Supreme Court has never had occasion to resolve a disputed question about the
meaning of Section 924(c)(3)(B), and no broad conflict exists among the lower courts over what
constitutes a crime of violence under it. See Ovalles, 861 F.3d at 1266; Prickett; 839 F.3d at 700;
Hill, 832 F.3d at 148; Taylor, 814 F.3d at 377-378; Eshetu, 863 F.3d at 955. Indeed, as discussed
above, “much of the confusion in the ACCA cases concerned the four enumerated crimes that were
linked to the residual clause,” which are absent from the risk-of-force clause. Taylor, 814 F.3d at
378; see also Prickett, 839 F.3d at 700 (quoting Taylor). No judicial morass over Section
924(c)(3)(B)’s meaning exists to evince a “failed enterprise.”
Moreover, the Court in Johnson II took pains to limit its holding to the ACCA’s residual clause. To
be sure, the Court noted difficulties associated with applying the categorical approach to a
substantial-risk inquiry. See Johnson II, 135 S. Ct. at 2557, 2561; see also Eshetu, 863 F.3d at
955. But the Court found particular fault with the temporal breadth of the ACCA’s injury inquiry
and its link to the four enumerated crimes, neither of which is present here. See id. at 2557-
2558. The Court also explicitly rejected the dissent’s suggestion to “jettison” the categorical
inquiry for all substantial-risk clauses. See id. at 2562; Taylor, 814
- 32 -
F.3d at 378; Eshetu, 863 F.3d at 955. In short, the Court did not strike down the categorical
approach for all substantial-risk clauses. And, for all the reasons discussed above, the
risk-of-force clause in Section 924(c)(3)(B) has none of the uncertainties found intolerable in
toto by the Court in the residual clause.
2. Whittington’s Section 3631 Conviction Naturally Involves A Substantial Risk Of Physical Force
Whittington does not challenge that his Section 3631 conviction qualifies as a crime of violence
under the risk-of-force clause, should the clause survive Johnson II. He thus has waived any
argument to the contrary. See Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d 1146, 1148 (9th Cir. 2016). Regardless, such a claim would have no merit. Whittington’s conviction easily satisfies the risk-of-force clause for the same reasons it satisfies the use-of-force clause. Using the modified categorical approach, Whittington was convicted of the statutory elements of using “force or threat of force” with “the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire.” By their nature, a dangerous weapon, explosives, and fire each entail physical force that is capable of causing physical pain or injury to another person. See Smith, 561 F.3d at 939; Graves, 339 F.3d at 843 n.19; Pospisil, 186 F.3d at 1031. Accordingly, Whittington’s felony conviction under Section 3631 involved, “by its nature,
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* * * substantial risk that physical force * * * may be used in the course of committing the
offense,” in satisfaction of Section 924(c)(3)(B).
II THE DISTRICT COURT PROPERLY SENTENCED WHITTINGTON
Whittington challenges his 180-month sentence, in particular, the district court’s imposition of a
120-month sentence for his Count 2 conviction for using a firearm during a crime of violence. Br.
20-25. He argues that the district court’s “wrongful jury instruction and the wrong resultant
charge and guideline resulted in the prejudicial application of the 120 month enhanced sentence.”
Br. 22. In addition, he argues that “the ten-year mandatory minimum cannot stand” because
“[Section] 3631 is not categorically a crime of violence.” Br. 25. In sum, Whittington argues that
he was improperly convicted of Count 2 and, thus, should not have been sentenced on Count 2.
Whittington is mistaken. The district court committed no error, much less plain error.
As discussed above, Whittington’s Section 3631 felony conviction constituted a crime of violence
under the modified categorical approach. The district court therefore properly instructed the jury
that Count 1 as charged constituted a crime of violence. S.E.R. 789. There is no error, much less
plain error, in the jury’s guilty verdict. See Argument I, supra.
- 34 -
The district court properly sentenced Whittington for his Count 2 conviction for using a firearm
during a crime of violence. As relevant here, Section 924(c) mandates a consecutive minimum term of
imprisonment of ten years “if the firearm is discharged,” 18 U.S.C. 924(c)(1)(A)(iii), or if the
firearm is a “short- barreled shotgun,” 18 U.S.C. 924(c)(1)(B)(i). The jury rendered a special
verdict finding Whittington guilty of both elements. E.R. 12. His sentence on Count 2 was
therefore mandated by federal statute, which the district court properly followed.7
7 To the extent Whittington also attempts to challenge the district court’s offense level
calculations for the first time on appeal (Br. 23), he waived any such challenge for failing to
advance any legal argument in his opening brief. See Independent Towers of Wash. v. Washington, 350
F.3d 925, 929 (9th Cir. 2003). Regardless, such a claim would have no merit. The district court
properly applied the greatest base offense level from Whittington’s applicable offense guidelines,
see U.S. Sentencing Guidelines § 2H1.1(a)(1), and no double counting occurred because Whittington’s
unlawful possession of a sawed-off shotgun was a separate offense from his shooting of the shotgun
at Joe Nuno, see United States v. Valenzuela, 495 F.3d 1127, 1132-1133 (9th Cir. 2007); United
States v. Collins, 109 F.3d 1413, 1419-1420 (9th Cir. 1997).
- 35 -
CONCLUSION
This Court should affirm defendant’s conviction and sentence.
Respectfully submitted,
JOHN M. GORE
Acting Assistant Attorney General
s/ Robert A. Koch
ERIN H. FLYNN
ROBERT A. KOCH
Attorneys
Department of Justice
Civil Rights Division
Appellate Section
Ben Franklin Station
P.O. Box 14403
Washington, D.C. 20044-4403
(202) 305-2302
STATEMENT OF RELATED CASES
The government is aware of the following cases that raise vagueness challenges to 18 U.S.C.
924(c)(3)(B):
United States v. Begay, No. 14-10080 (9th Cir.)
United States v. Gaytan, No. 14-10167 (9th Cir.)
United States v. Andrade, No. 14-10226 (9th Cir.)
United States v. Dominguez, No. 14-10268 (9th Cir.)
United States v. Robertson, No. 15-10351 (9th Cir.)
United States v. Watson, No. 16-15357 (9th Cir.)
CERTIFICATE OF COMPLIANCE
I certify, pursuant to Federal Rule of Appellate Procedure 32(g), that the attached BRIEF FOR THE
UNITED STATES AS APPELLEE:
(1) complies with the length requirements of Federal Rule of Appellate Procedure 32(a)(7) because
it contains 8024 words, excluding the parts of the brief exempted by Federal Rule of Appellate
Procedure 32(f), and
(2) complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the
type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been
prepared in a proportionally spaced typeface using Microsoft Word 2016, in 14-point Times New Roman
font.
s/ Robert A. Koch
ROBERT A. KOCH
Attorney
Dated: October 16, 2017
CERTIFICATE OF SERVICE
I hereby certify that on October 16, 2017, I electronically filed the foregoing BRIEF FOR THE
UNITED STATES AS APPELLEE with the Clerk of the Court for the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system.
I certify that all participants in this case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
s/ Robert A. Koch
ROBERT A. KOCH
Attorney
ADDENDUM
Title 42 - The Public Health and Welfare Chapter 45 - Fair Housing
Subchapter II - Prevention of Intimidation
§ 3631. Violations; penalties
Whoever, whether or not acting under color of law, by force or threat of force willfully injures,
intimidates or interferes with, or attempts to injure, intimidate or interfere with--
(a) any person because of his race, color, religion, sex, handicap (as such term is defined in
section 3602 of this title), familial status (as such term is defined in section 3602 of this
title), or national origin and because he is or has been selling, purchasing, renting, financing,
occupying, or contracting or negotiating for the sale, purchase, rental, financing or occupation of
any dwelling, or applying for or participating in any service, organization, or facility relating
to the business of selling or renting dwellings; or
(b) any person because he is or has been, or in order to intimidate such person or any other person
or any class of persons from--
(1) participating, without discrimination on account of race, color, religion, sex, handicap (as
such term is defined in section 3602 of this title), familial status (as such term is defined in
section 3602 of this title), or national origin, in any of the activities, services, organizations
or facilities described in subsection (a) of this section; or
(2) affording another person or class of persons opportunity or protection so to participate; or
(c) any citizen because he is or has been, or in order to discourage such citizen or any other
citizen from lawfully aiding or encouraging other persons to participate, without discrimination on
account of race, color, religion, sex, handicap (as such term is defined in section 3602 of this
title), familial status (as such term is defined in section 3602 of this title), or national
origin, in any of the activities, services, organizations or facilities described in subsection (a)
of this section, or participating lawfully in speech or peaceful assembly opposing any denial of
the opportunity to so participate--
shall be fined under Title 18 or imprisoned not more than one year, or both; and if bodily injury
results from the acts committed in violation of this section or if such acts include the use,
attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined under
Title 18 or imprisoned not more than ten years, or both; and if death results from the acts
committed in violation of this section or if such acts include kidnapping or an attempt to kidnap,
aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill,
shall be fined under Title 18 or imprisoned for any term of years or for life, or both.
Title 18 - Crimes and Criminal Procedure Part I - Crimes
Chapter 44 - Firearms
§ 924. Penalties
(a) * * *
(b) * * *
(c)
(1)
(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection
or by any other provision of law, any person who, during and in relation to any crime of violence
or drug trafficking crime (including a crime of violence or drug trafficking crime that provides
for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for
which the person may be prosecuted in a court of the United States, uses or carries a firearm, or
who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking crime--
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years;
and
(iii)if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10
years.
(B) If the firearm possessed by a person convicted of a violation of this subsection--
(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person
shall be sentenced to a term of imprisonment of not less than 10 years; or
(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm
muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.
(C) In the case of a second or subsequent conviction under this subsection, the person shall--
(i) be sentenced to a term of imprisonment of not less than 25 years; and
(ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm
silencer or firearm muffler, be sentenced to imprisonment for life.
(D) Notwithstanding any other provision of law--
(i) a court shall not place on probation any person convicted of a violation of this subsection;
and
(ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with
any other term of imprisonment imposed on the person, including any term of imprisonment imposed
for the crime of violence or drug trafficking crime during which the firearm was used, carried, or
possessed.
(2) For purposes of this subsection, the term “drug trafficking crime” means any felony punishable
under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and
Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.
(3) For purposes of this subsection the term “crime of violence” means an offense that is a felony
and--
(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.
(4) For purposes of this subsection, the term “brandish” means, with respect to a firearm, to
display all or part of the firearm, or otherwise make the presence of the firearm known to another
person, in order to intimidate that person, regardless of whether the firearm is directly visible
to that person.
(5) Except to the extent that a greater minimum sentence is otherwise provided under this
subsection, or by any other provision of law, any person who, during and in relation to any crime
of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that
provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or
device) for which the person may be prosecuted in a court of the United States, uses or carries
armor piercing ammunition, or who, in furtherance of any such crime, possesses armor piercing
ammunition, shall, in addition to the punishment provided for such crime of violence or drug
trafficking crime or conviction under this section--
(A) be sentenced to a term of imprisonment of not less than 15 years; and
(B) if death results from the use of such ammunition--
(i) if the killing is murder (as defined in section 1111), be punished by death or sentenced to a
term of imprisonment for any term of years or for life; and
(ii) if the killing is manslaughter (as defined in section 1112), be punished as provided in
section 1112.
(d) * * *
(e)
(1) In the case of a person who violates section 922(g) of this title and has three previous
convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a
serious drug offense, or both, committed on occasions different from one another, such person shall
be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any
other provision of law, the court shall not suspend the sentence of, or grant a probationary
sentence to, such person with respect to the conviction under section 922(g).
(2) As used in this subsection--
(A) the term “serious drug offense” means--
(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled
Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46, for which a
maximum term of imprisonment of ten years or more is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent
to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is
prescribed by law;
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment for such term if committed by an adult,
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; and
(C) the term “conviction” includes a finding that a person has committed an act of juvenile
delinquency involving a violent felony.
(f) * * *
(g) * * *
(h) * * *
(i) * * *
(j) * * *
(k) * * *
(l) * * *
(m) * * *
(n) * * *
(o) * * *
(p) * * *