Case o' The Week: An Intimidating Opinion - Burke and Johnson COV, Armed Robbery Involving Drugs

  The Ninth's Johnson analysis in Gobert Burke concludes federal offense is a C.O.V.

  United States v. Burke, 2019 WL 6462363 (9th Cir. Dec. 2, 2019), decision available here.

Hon. Judge Carlos Bea

Players: Decision by Judge Bea, joined by Judges Farris and Christen. Hard-fought appeal by AFPD David Ness.

Facts: Burke walked into a Wallgreen’s, pointed a gun at an employee, demanded OxyContin, and left with around 900 pills. Id. After a high-speed car chase, Burke was arrested and charged federally.

  He was charged with armed robbery involving controlled substances, in violation of 18 U.S.C. § 2118(c)(1). Id. Riding that first count was a second, § 924(c) charge. Id.

  Burke pleaded guilty, and later filed a § 2255 (habeas) challenging the § 2118(c)(1) conviction as a “crime of violence” basis for the § 924(c) offense.

Issue(s): “The sole question presented by this appeal is whether the offense of armed robbery involving controlled substances described in 18 U.S.C. § 2118(c)(1) is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” Id. at *1. “Burke argues that robbery involving controlled substances ‘by force or violence or by intimidation’ does not constitute a crime of violence. Although such robbery ‘by force or violence’ would undoubtedly constitute a crime of violence, Burke argues that the least violent form of the offense—robbery involving controlled substances through mere ‘intimidation’—does not meet the requirements for a crime of violence.” Id. at *2.

Held: “We hold that it is.” Id. at *1.

 “There is simply no room to find robbery involving controlled substances under § 2118(a) is anything but a crime of violence under § 924(c)(3)(A)’s elements clause following Gutierrez and Watson’s binding precedent. The least violent form of each offense is the taking of something (money, a motor vehicle, or controlled substances) by intimidation, which under Gutierrez and Watson “necessarily entails” at a minimum the “threatened use of violent physical force” to qualify the offenses as crimes of violence under § 924(c)(3) (A)’s elements clause. Gutierrez, 876 F.3d at 1257; Watson, 881 F.3d at 785. Because robbery involving controlled substances ‘by force or violence or by intimidation’ is a crime of violence, so too is armed robbery involving controlled substances, which requires proof of all the elements of unarmed robbery involving controlled substances. See 18 U.S.C. § 2118(c) (1). Armed robbery involving controlled substances under § 2118(c)(1) thus cannot be based on conduct that involves less force than unarmed robbery involving controlled substances. For these reasons, armed robbery involving controlled substances under § 2118(c)(1) qualifies as a crime of violence under § 924(c)(3)(A).” Id. at *3.

Of Note: The Johnson analysis in Judge Bea’s Burke decision may seem similar to the Johnson analysis in Judge Bea’s recent Gobert decision, discussed in last week’s memo. See Gobert Blog Entry here. 

  These two Johnson decisions are indeed similar. 

  Very similar. 

  Actually, a fair chunk of the Johnson analysis in these two decisions are verbatim repetitions. Compare Burke, 2019 WL 6462363 at *2, with Gobert, 2019 WL 6316678 at *2.

   While the defense bar remains excited about the sea change presented by Johnson and Davis, Burke and Gobert suggest that the Ninth may not quite share our enthusiasm.

How to Use: As in Gobert, in Burke the Ninth held that the least dramatic way of committing this offense – robbing for drugs with a gun, by using “intimidation – necessarily involved the threatened use of violent force.

   Appellate folks gnash their teeth, but the opinions merit some trial brainstorming. Are there opportunities for creative jury arguments on whether “intimidation” really was a “threatened use of violent physical force?”

                                               

For Further Reading: On December 5th the Senate GOP tweeted “Big News”: two more Ninth Circuit judges will be confirmed next week.

Ninth Circuit Judicial Nominees VanDyke and Bumatay

See Senate GOP Tweet here. 

Image of the Honorable Judge Carlos Bea from https://twitter.com/CLSFedSoc/status/933028793241006086

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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