Irma Ovalles v. United States

Case: 17-10172 Date Filed: 10/09/2018 Page: 1 of 15

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 17-10172
Non-Argument Calendar
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D.C. Docket Nos. 1:16-cv-02392-TWT; 1:10-cr-00305-TWT-RGV-1

IRMA OVALLES,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

(October 9, 2018)

Before TJOFLAT, WILLIAM PRYOR and HULL, Circuit Judges.

PER CURIAM:
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The en banc Court remanded this appeal to the panel for further proceedings.

Ovalles v. United States, ___ F.3d ____, 2018 WL 4830079, at *18 (11th Cir. Oct.

4, 2018) (Ovalles II). In 2017, our initial panel opinion affirmed the district court’s

denial of Irma Ovalles’s 28 U.S.C. § 2255 motion to vacate her 18 U.S.C. § 924(c)

conviction and sentence for using and carrying a firearm during a crime of

violence, namely, attempted carjacking. Ovalles v. United States, 861 F.3d 1257,

1267-69 (11th Cir. 2017) (Ovalles I). The panel opinion held that Ovalles’s

attempted carjacking conviction qualified as a crime of violence under both

§ 924(c)(3)(B)’s residual clause and § 924(c)(3)(A)’s elements clause. Id.

After Sessions v. Dimaya, 584 U.S. ___, 138 S. Ct. 1204 (2018), this Court

vacated the panel opinion and took the case en banc. The Court en banc then held

that: (1) § 924(c)(3)(B)’s residual clause is not unconstitutionally vague; (2) we

determine whether a predicate offense qualifies under that residual clause by using

a conduct-based approach; and (3) given the admitted conduct, Ovalles’s attempted

carjacking conviction qualifies under § 924(c)(3)(B)’s residual clause. Ovalles,

___ F.3d at ____, 2018 WL 4830079, at *1-2, 11-18.

The en banc Ovalles II decision remanded this appeal to the panel to decide

all other issues. We now do so by reinstating our ruling in Ovalles I insofar as it

held that Ovalles’s attempted carjacking conviction qualifies as a crime of violence

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under § 924(c)(3)(A)’s elements clause. We summarize what Ovalles I said and

include additional analysis along the way.

I. BACKGROUND

In a 2010 written plea agreement, Ovalles pled guilty to six crimes: (1) a

Hobbs Act robbery; (2) three carjackings; (3) an attempted carjacking; and (4)

using and carrying a firearm during that attempted carjacking. 1 At the plea

hearing, the government’s factual proffer, which Ovalles admitted, detailed how

Ovalles and others committed at gunpoint a robbery, three carjackings, and an

attempted carjacking between December 12, 2008 and December 14, 2008.

Only the attempted carjacking and the firearm crime during that carjacking

are relevant to this appeal. As to those counts, the presentence investigation report

(“PSI”) reported, as did the government’s factual proffer, that on December 14,

2008, Ovalles and other gang members stopped a minivan by displaying firearms.

The robbers ordered the driver and his daughter out of the vehicle. One robber hit

the daughter with a baseball bat. They took the victims’ money and cell phones at

gunpoint. As the victims ran away, one robber fired several rounds from an AK-47

rifle in their direction. When a bystander fired back at the robbers, they fled in a

1
The parties dispute whether Ovalles’s appeal of the denial of her § 2255 motion is barred
by the limited appeal waiver in her plea agreement. Because Ovalles’s appeal lacks merit in any
event, we need not reach the appeal waiver issue.

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pick-up truck. Our en banc opinion recounts Ovalles’s crimes in more detail.

Ovalles II, ___ F.3d at ___; 2018 WL 4830079, at *2-3.

The PSI grouped the robbery, the three carjackings, and the attempted

carjacking, yielding an advisory guidelines range of 108 to 135 months’

imprisonment. As to the § 924(c) firearm crime, Ovalles’s advisory guidelines

sentence was a consecutive ten years’ imprisonment, the statutory minimum.

Without objection, the district court adopted the PSI’s facts and guidelines

calculations. The district court imposed 108-month concurrent sentences on

Ovalles’s robbery, three carjackings, and attempted carjacking and a 120-month

consecutive sentence on her § 924(c) firearm crime. Ovalles did not appeal.

In 2016, Ovalles pro se filed her § 2255 motion to vacate her § 924(c)

conviction and sentence. After the court appointed counsel, Ovalles filed an

amended § 2255 motion, which the district court denied. Ovalles timely appealed.

II. DISCUSSION

Section 924(c) provides for a mandatory consecutive sentence for any

defendant who uses or carries a firearm during a crime of violence. 18 U.S.C.

§ 924(c)(1). “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.

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Id. § 924(c)(3)(A), (B). We refer to § 924(c)(3)(A) as the “elements clause.”

We apply the categorical approach to decide whether a predicate conviction

satisfies the elements-clause definition. See, e.g., United States v. McGuire, 706

F.3d 1333, 1336 (11th Cir. 2013). In doing so, we must presume that the

conviction rested upon nothing more than the least of the acts criminalized and

then determine whether even those acts qualify as crimes of violence. See

Moncrieffe v. Holder, 569 U.S. 184, 190-91, 133 S. Ct. 1678, 1684 (2013). We

look only to the statutory elements of Ovalles’s attempted carjacking conviction,

not to the particular facts underlying that conviction. See Descamps v. United

States, 570 U.S. 254, 260-61, 133 S. Ct. 2276, 2283 (2013). We thus turn to the

carjacking statute.

The carjacking statute, 18 U.S.C. § 2119, provides in relevant part:

Whoever, with the intent to cause death or serious bodily harm takes a
motor vehicle that has been transported, shipped, or received in
interstate or foreign commerce from the person or presence of another
by force and violence or by intimidation, or attempts to do so, shall--
(1) be fined under this title or imprisoned not more than 15 years, or
both.

18 U.S.C. § 2119(1). The § 2119 statute itself prohibits both the taking of the

vehicle and the attempt to do so. See id.

To convict a defendant of carjacking, the government must prove that the

defendant: (1) with the intent to cause death or serious bodily harm; (2) took, or

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attempted to take, a motor vehicle; (3) that had been transported, shipped, or

received in interstate or foreign commerce; (4) from the person or presence of

another; (5) by force and violence or intimidation. United States v. Diaz, 248 F.3d

1065, 1096 (11th Cir. 2001). The intent element of the carjacking offense is

satisfied if “at the moment the defendant demanded or took control of the driver’s

automobile the defendant possessed the intent to seriously harm or kill the driver if

necessary to steal the car.” Holloway v. United States, 526 U.S. 1, 12, 119 S. Ct.

966, 972 (1999). The defendant’s intent is judged objectively from the actor’s

visible conduct and what the victim might reasonably conclude. United States v.

Fulford, 267 F.3d 1241, 1244 (11th Cir. 2001).

This Court already has held that a § 2119 carjacking offense meets the

requirements of § 924(c)(3)(A)’s elements clause. In re Smith, 829 F.3d 1276,

1280 (11th Cir. 2016); United States v. Moore, 43 F.3d 568, 572-73 (11th Cir.

1994) (“The term ‘crime of violence’ as Congress defined it in 18 U.S.C.

§ 924(c)(3) clearly includes carjacking. ‘Tak[ing] or attempt[ing] to take by force

and violence or by intimidation,’ 18 U.S.C. § 2119, encompasses ‘the use,

attempted use, or threatened use of physical force . . . .’ 18 U.S.C.

§ 924(c)(3)(A).”). As this Court explained, “an element requiring that one take or

attempt to take by force and violence or by intimidation, which is what the federal

carjacking statute does, satisfies the force clause of § 924(c), which requires the

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use, attempted use, or threatened use of physical force.” In re Smith, 829 F.3d at

1280 (footnote omitted). In so holding, the In re Smith panel followed our prior

precedent in Moore. Id.

A. Carjacking is Categorically a Crime of Violence

Ovalles’s first contention on appeal is that our precedent is erroneous.

Although bound by that precedent, we explain why Moore and In re Smith are

correctly decided. Our inquiry under the categorical approach asks not only

whether carjacking “by force and violence” qualifies, which it patently does, but

also whether the taking of a vehicle from a person “by intimidation” qualifies, too.

The term “by intimidation” in the carjacking statute cannot be read in

isolation, but must be considered along with the requisite intent, which means the

intimidating act was conducted “with the intent to cause death or serious bodily

harm.” 18 U.S.C. § 2119(1). Given that required specialized intent, the

carjacker’s intimidating conduct must be to say or do something that makes an

ordinary person in the victim’s position fear serious bodily injury or death. See

United States v. Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005) (stating bank

robbery “by intimidation” occurs when an ordinary person in the victim’s position

reasonably could infer a threat of bodily harm from the defendant’s acts); 11th Cir.

Pattern Jury Instruction (Criminal) O78 (instructing that to take “by intimidation”

for purposes of federal carjacking is “to say or do something that would make an

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ordinary person fear bodily harm”). Simply put, § 2119’s proscribed conduct

where the defendant must take the car from a person by intimidation—that is, by

conduct that would make an ordinary person fear bodily harm—and do so with the

intent to kill or cause serious bodily injury necessarily entails at least threatened or

attempted force and qualifies under § 924(c)(3)(A).

Three other circuits have concluded that federal carjacking “by intimidation”

requires at least a threat to use violent force and categorically qualifies as a crime

of violence under § 924(c)(3)(A)’s elements clause. See United States v.

Gutierrez, 876 F.3d 1254, 1255-57 (9th Cir. 2017), cert. denied, ___ U.S. ___, 138

S. Ct. 1602 (2018); United States v. Jones, 854 F.3d 737, 740-41 & n.2 (5th Cir.),

cert. denied, ___ U.S. ___, 138 S. Ct. 242 (2017); United States v. Evans, 848 F.3d

242, 246-48 (4th Cir.), cert. denied, ___ U.S. ___, 137 S. Ct. 2253 (2017). The

Ninth Circuit explained that intimidation as used in § 2119 requires that the

defendant take the motor vehicle in such a way “that would put an ordinary,

reasonable person in fear of bodily harm, which necessarily entails at least the

threatened use of violent physical force.” Gutierrez, 876 F.3d at 1257.

In concluding carjacking by intimidation is a violent crime, circuits have

relied on decisions interpreting the analogous federal bank robbery statute, which

proscribes bank robbery “by force and violence, or by intimidation.” See 18

U.S.C. § 2113(a); Guitierrez, 876 F.3d at 1257; Jones, 854 F.3d at 740; Evans, 848

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F.3d at 246-47. Seven circuits, including this Court, have held that federal bank

robbery “by intimidation” has as an element the threatened use of physical force

and categorically qualifies under § 924(c)(3)(A). See United States v. Johnson,

899 F.3d 191, 203-04 (3d Cir. 2018); United States v. Watson, 881 F.3d 782, 784-

85 (9th Cir.), cert. denied, 2018 WL 3223705 (U.S. Oct. 1, 2018); Hunter v. United

States, 873 F.3d 388, 390 (1st Cir. 2017); United States v. Williams, 864 F.3d 826,

827, 830 (7th Cir.), cert. denied, 138 S. Ct. 272 (2017); United States v. Armour,

840 F.3d 904, 908-09 (7th Cir. 2016); United States v. McBride, 826 F.3d 293, 296

(6th Cir. 2016), cert. denied, 137 S. Ct. 830 (2017); United States v. McNeal, 818

F.3d 141, 152-54 (4th Cir. 2016), cert. denied, 138 S. Ct. 272 (2017); United States

v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000); see also In re Sams, 830 F.3d

1234, 1239 (11th Cir. 2016) (following the Fourth Circuit’s McNeal and the Ninth

Circuit’s Wright and holding federal bank robbery qualifies under § 924(c)(3)(A)).

In short, Moore and In re Smith correctly held that a § 2119 carjacking

offense categorically qualifies under § 924(c)(3)(A)’s elements clause.

B. Attempted Carjacking is Categorically a Crime of Violence

Even so, Ovalles’s next argument is that her conviction cannot qualify

because it was for only attempted carjacking. However, this Court already has

concluded that attempted crimes of violence may also categorically qualify under

§ 924(c)(3)(A). Specifically, in McGuire, the § 924(c) defendant’s predicate

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conviction was for “attempting” to set fire to, damage, destroy, disable, or wreck

an aircraft, in violation of 18 U.S.C. § 32(a)(1). McGuire, 706 F.3d at 1335. This

Court held that even the least culpable act under § 32(a)(1)—such as “attempting”

to disable an aircraft by deflating its tires on the ground—categorically qualified

under § 924(c)(3)(A). Id. at 1336-38. We reasoned that “attempting to disable an

aircraft” is itself an act of force in the meaningful sense,” stressing that it is an

“‘active crime’ done ‘intentionally’ against the property of another, with extreme

and manifest indifference to the owner of that property and the wellbeing of the

passengers.” Id. at 1337.2 Here, attempted carjacking is not only an active crime

but it must be done intentionally against a person with intent to seriously injure or

kill if necessary to steal the car.

Importantly, federal law, which governs an attempt of a federal crime,

demonstrates why attempted carjacking qualifies under the elements clause. To be

convicted of an “attempt” of a federal offense, a defendant must: (1) have the

specific intent to engage in the criminal conduct she is charged with attempting;

and (2) have taken a substantial step toward the commission of the offense that

strongly corroborates her criminal intent. United States v. Jockisch, 857 F.3d

2
McGuire held the defendant’s attempt to disable an aircraft categorically qualified under
both the residual and elements clauses. 706 F.3d at 1336-38. Our en banc Ovalles II decision
overruled McGuire only to the extent it required the application of the categorical approach to
the residual clause determination. Ovalles II, ___ F.3d at ___, 2018 WL 4830079, at *2, 17.
McGuire’s alternative holding that the attempt crime categorically qualified under the elements
clause remains undisturbed.

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1122, 1129 (11th Cir. 2017); United States v. Yost, 479 F.3d 815, 819 (11th Cir.

2007). In other words, a federal attempt offense requires that the defendant have

the specific intent to commit each element of the completed federal offense. In

addition, for attempted carjacking, the government must also prove that the

defendant attempted to take the vehicle from a person with intent to seriously

injure or kill the person if necessary to steal the car. That required violent intent

element remains the same whether the taking was attempted or completed.

Further, under federal law, attempted carjacking requires not mere

preparation, but a substantial step toward taking the car by intimidation that

corroborates that specific criminal intent. “A substantial step can be shown when

the defendant’s objective acts mark h[er] conduct as criminal and, as a whole,

‘strongly corroborate the required culpability.’” Yost, 479 F.3d at 819 (quoting

United States v. Murrell, 368 F.3d 1283, 1288 (11th Cir. 2004)). To constitute an

attempt under federal law, the defendant must do more than merely plan or prepare

for the crime; he or she must perform objectively culpable and unequivocal acts

toward accomplishing the crime. See United States v. Ballinger, 395 F.3d 1218,

1238 n.8 (11th Cir. 2008) (en banc); United States v. McDowell, 705 F.2d 426,

427-28 (11th Cir. 1983).

We can conceive of no plausible means by which a defendant could commit

attempted carjacking absent a threatened or attempted use of force against a

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person. Applying the categorical approach, we consider “the plausible

applications” of the carjacking statute, not mere “theoretical” possibilities of how a

carjacking may occur. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127

S. Ct. 815, 822 (2007) (requiring “a realistic probability, not a theoretical

possibility, that the State would apply its statute to conduct that falls outside” the

standard).

Even assuming that the substantial step itself in an attempted carjacking

offense falls short of actual or threatened violence, we also conclude that because a

completed carjacking qualifies as a crime of violence, an attempt to commit that

violent offense constitutes a crime of violence too. In reaching this alternative and

independent ground for affirmance, we agree with, and adopt, the Seventh

Circuit’s approach to attempted violent crimes. Hill v. United States, 877 F.3d

717, 718-19 (7th Cir. 2017) (examining Illinois law and holding murder qualifies

as a violent felony under § 924(e)’s elements clause and therefore attempted

murder does too), cert. denied, 2018 WL 4334874 (U.S. Oct. 9, 2018);3 Armour,

840 F.3d at 908-09 & n.3 (examining federal law and holding that aiding and

abetting attempted armed bank robbery qualifies as a crime of violence under

§ 924(c)(3)(A)); Morris v. United States, 827 F.3d 696, 698-99 (7th Cir. 2016)

(Hamilton, J., concurring).

3
Section 924(e) is the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e).

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In Hill, the Seventh Circuit explained that “[w]hen a substantive offense

would be a violent felony under § 924(e) and similar statutes, an attempt to commit

that offense also is a violent felony.” See Hill, 877 F.3d at 719. Hill argued that

his attempted murder conviction did not qualify because the substantial step

required to commit attempt under Illinois law may not itself involve the use,

attempted use, or threatened use of physical force. Id. (citing as examples buying a

gun or giving a hit man a car key after drawing up assassination plans).

Rejecting Hill’s argument, the Seventh Circuit acknowledged that in attempt

crimes the substantial step itself may not be actual or threatened force. Id.

Nonetheless, if an element of the crime (murder), if completed, involves actual or

threatened force and is therefore a violent crime, it follows that an attempt to

commit that violent crime is itself a violent crime. Id. at 719-20. The Seventh

Circuit reasoned that: (1) a defendant must intend to commit every element of the

completed crime in order to be guilty of attempt; and (2) thus, “an attempt to

commit a crime should be treated as an attempt to commit every element of that

crime.” Id. The Seventh Circuit explained that “[w]hen the intent element of the

attempt offense includes intent to commit violence against the person of

another . . . it makes sense to say that the attempt crime itself includes violence as

an element.” Id.; see also Morris, 827 F.3d at 698-99 (Hamilton, J., concurring)

(“Even though the substantial step(s) may have fallen short of actual or threatened

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physical force, the criminal has, by definition, attempted to use or threaten physical

force because he has attempted to commit a crime that would be violent if

completed.”).

“Given the statutory specification [in § 924(e)(2)(B)(i)] that an element of

attempted force operates the same as an element of completed force, and the rule

that conviction of attempt requires proof of intent to commit all elements of the

completed crime,” the Seventh Circuit concluded that when an offense, if

completed, qualifies under the ACCA’s elements clause, an attempt to commit that

same offense also is a violent felony. See Hill, 877 F.3d at 719.

Analogously here, it makes no difference that Ovalles was convicted of only

attempted carjacking. The federal attempt law requires that Ovalles intended to

commit every element of a completed carjacking, including taking the vehicle from

another person by force and violence or by intimidation and fully intending to

cause death or bodily harm to that person if necessary to steal the vehicle. Similar

to Hill’s analysis, Ovalles has by definition attempted to use or threaten force

because she attempted to commit a crime that would be violent if completed.

Thus, under Hill’s analysis, given § 924(c)’s elements clause equates an attempted

force with actual or threatened force, and given that an attempt conviction requires

an intent to commit all elements of the completed crime, attempted carjacking

qualifies as a crime of violence under § 924(c)(3)(A) as well.

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III. CONCLUSION

As an independent and alternative ground for affirmance of the denial of

Ovalles’s § 2255 motion, we hold that Ovalles’s attempted carjacking conviction

categorically qualifies as a crime of violence under § 924(c)(3)(A)’s elements

clause. We therefore affirm Ovalles’s § 924(c) conviction.

AFFIRMED.

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