Wednesday, December 04, 2019

US v. Burke, No. 17-35446 (12-2-19)(Bea w/Farris & Christen). The 9th affirms the denial of a 2255 petition involving the use of a firearm during a “crime of violence” (COV). The 9th 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 9th’s precedent in US v. Gutierrez, 876 F.3d 1254 (9th Cir. 2017) and US v. Watson, 881 F.3d 782 (9th Cir. 2018) involving robbery both held that intimidation entails the threat of use of physical force and this are COVs. The 9th finds this must apply to armed robbery too.

The decision is here:


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