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United States v. Fultz

United States Court of Appeals, Ninth Circuit

May 10, 2019

United States of America, Plaintiff-Appellee,
v.
Mario Denane Fultz, Defendant-Appellant.

          Argued and Submitted February 6, 2019 Pasadena, California

          Appeal from the United States District Court for the Southern District of California D.C. Nos. 3:16-cv-01558-DMS 3:93-cr-00351-DMS-1 Dana M. Sabraw, District Judge Presiding

          Kara Hartzler (argued), Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant.

          Helen H. Hong (argued), Chief, Appellate Section; Adam L. Braverman, United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

          Before: Ronald M. Gould and Jacqueline H. Nguyen, Circuit Judges, and Algenon L. Marley, [*] District Judge.

          SUMMARY [**]

         28 U.S.C. § 2255

         The panel affirmed the district court's denial of Mario Fultz's motion under 28 U.S.C. § 2255 in which he argued that his sentence was improperly enhanced under 18 U.S.C. § 924(c)(1) on the ground that his underlying offense, Robbery on a Government Reservation in violation of 18 U.S.C. § 2111, was a "crime of violence" under 18 U.S.C. § 924(c)(3).

         The panel held that § 2111 Robbery, even if done by "intimidation" alone, is categorically a "crime of violence" under the elements clause of § 924(c)(3)(A).

          OPINION

          MARBLEY, District Judge:

         In 2016, the Supreme Court decided Johnson v. United States (Johnson II), 135 S.Ct. 2551. In Johnson II, the Court invalidated the "residual clause" of the Armed Career Criminal Act ("ACCA")-18 U.S.C. § 924(e)(2)(B)(ii)-as void for vagueness. Following Johnson II, Defendant-Appellant Mario Fultz filed a second or successive motion to vacate his sentence under 28 U.S.C. § 2255. Fultz argues that his sentence was improperly enhanced under § 924(c)(1). First, he argues that, because the underlying offense, robbery, was not a "crime of violence" under the elements clause of § 924(c)(3)(A), his sentence was enhanced pursuant to the residual clause of § 924(c)(3)(B). Second, he argues that his sentence enhancement under the residual clause is unconstitutional after Johnson II. The district court denied Fultz's § 2255 motion but issued a certificate of appealability, allowing Fultz to appeal its denial order. This appeal was timely filed.

         Between the time this appeal was filed and the time this court began consideration of this case, the Supreme Court granted certiorari in United States v. Davis, 18-431, which was argued April 17, 2019. Davis will address the question of whether the residual clause of §924(c)(3) is unconstitutional. In the interim, this court heard argument on the first certified question: whether the crime of which Fultz was convicted, robbery in violation of 18 U.S.C. § 2111, is a crime of violence under the elements clause.

         We conclude that § 2111 Robbery is a "crime of violence" under the elements clause. Fultz conceded that, if his conviction under § 2111 also satisfies the elements clause of § 924(c)(3)(A), he would be unable to obtain relief ...


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