US v. Burke, No. 17-35446 (12-2-19)(Bea w/Farris & Christen). The 9^th affirms the denial of a 2255 petition involving the use of a firearm during a “crime of violence” (COV). The 9^th holds that armed robbery involving a controlled substance under 18 U.S.C. § 2118(c)(1) is a COV under 924(c)(3)(A)’s elements clause. Because the lesser offense of robbery involving controlled substances “by force or violence or by intimidation” is a COV under 924(c)(3)(A)’s elements clause, so too is armed robbery involving controlled substances.  The 9^th’s precedent in US v. Gutierrez, 876 F.3d 1254 (9^th Cir. 2017) and US v. Watson, 881 F.3d 782 (9^th Cir. 2018) involving robbery both held that intimidation entails the threat of use of physical force and this are COVs. The 9^th finds this must apply to armed robbery too.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/02/17-35446.pdf