United States v. Lecharles Baldon

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10411
Plaintiff-Appellee,
D.C. No.
v. 3:17-cr-00007-
LRH-CBC-1
LECHARLES BALDON,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding

Argued and Submitted November 13, 2019
San Francisco, California

Filed April 21, 2020

Before: Mark J. Bennett and Kenneth K. Lee, Circuit
Judges, and Lawrence L. Piersol, ∗ District Judge.

Opinion by Judge Bennett

∗
The Honorable Lawrence L. Piersol, United States District Judge
for the District of South Dakota, sitting by designation.
2 UNITED STATES V. BALDON

SUMMARY **

Criminal Law

The panel affirmed in part and vacated in part the district
court’s application of the Sentencing Guidelines, and
remanded for resentencing, in a case in which the defendant
argued that the district court erred in finding (1) that his prior
convictions for carjacking under section 215 of the
California Penal Code qualify as crimes of violence under
U.S.S.G. § 4A1.1(e); and (2) that he possessed a firearm
under U.S.S.G. § 2D1.1(b)(1).

The panel held that Solorio-Ruiz v. Sessions, 881 F.3d
733 (9th Cir. 2018)—which held that carjacking under
section 215 is not a crime of violence under 8 U.S.C.
§ 1101(a)(43)(F) because that statute requires only force in
excess of that required to seize the vehicle, however slight
that may be—is irreconcilable with, and no longer good law
following, the Supreme Court’s decision in Stokeling v.
United States, 139 S. Ct. 544 (2019), which clarified that the
requisite “violent force” for a crime of violence is any force
sufficient to overcome a victim’s physical resistance. The
panel held that Nieves-Medrano v. Holder, 590 F.3d 1057
(9th Cir. 2010) (order), which Solorio-Ruiz abrogated, is not
controlling.

The panel nevertheless held that carjacking under section
215 is not a crime of violence under U.S.S.G. § 4A1.1(e).
Because section 215 may be violated through fear of injury

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 UNITED STATES V. BALDON 3

to property alone and therefore criminalizes a broader range
of conduct than the federal definition of “crime of violence,”
the panel held that section 215 is not a categorical match to
the elements clause, U.S.S.G. § 4B1.2(a)(1), or the
enumerated offenses clause, U.S.S.G. § 4B1.2(a)(2). The
panel added that section 215 is not divisible, and that the
modified categorical approach is therefore inapplicable.

Rejecting the defendant’s argument that there was
insufficient evidence that he owned the gun or was aware of
its presence, the panel held that the district court properly
applied a two-level enhancement for possession of a firearm
under U.S.S.G. § 2D1.1(b)(1).

COUNSEL

Justin J. Bustos (argued), Dickinson Wright PLLC, Reno,
Nevada, for Defendant-Appellant.

Nancy M. Olson (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich,
United States Attorney; United States Attorney’s Office, Las
Vegas, Nevada; for Plaintiff-Appellee.
4 UNITED STATES V. BALDON

OPINION

BENNETT, Circuit Judge:

LeCharles Baldon pled guilty to possession with intent
to distribute a controlled substance, in violation of 21 U.S.C.
§ 841(a), and the district court sentenced him to 184 months.
This case presents two issues: first, whether Baldon’s prior
convictions for carjacking under section 215 1 of the
California Penal Code qualify as crimes of violence under
U.S.S.G. § 4A1.1(e), and second, whether the district court
erred in finding that Baldon possessed a firearm under
U.S.S.G. § 2D1.1(b)(1). We hold that section 215 is not a
categorical crime of violence, and thus the district court
erred in calculating Baldon’s sentence. But the district court
did not err in finding that Baldon possessed a firearm.

I.

In 2016, the FBI received information that Baldon was
dealing methamphetamine and heroin in Reno, Nevada. The
FBI and the DEA set up four controlled buys in late 2016,
utilizing an informant. 2 Federal agents saw that Baldon
accessed a storage unit before his first meeting with the
informant. The agents contacted the storage company and
learned that the unit was rented to Angelique Baker. On
January 3, 2017, a manager of the storage company told the
agents that Baldon had come to the office and paid to extend
the lease. Agents conducted a sweep of storage units with a

1
All “section” references are to the California Penal Code.
2
The dates of these buys were November 18, December 1,
December 6, and December 20.
 UNITED STATES V. BALDON 5

drug dog, and the dog alerted on the unit Baldon had
accessed.

On January 17, 2017, agents arrested Baldon and
executed a search warrant on his residence and the storage
unit. At Baldon’s residence, agents found
methamphetamine, cocaine, two scales, and packaging
material, as well as 9-millimeter ammunition matching the
caliber of the weapon found in the storage unit. 3 The agents
found a backpack containing methamphetamine, heroin, and
a loaded gun in the storage unit.

The government charged Baldon with various
methamphetamine and heroin offenses and being a felon in
possession of a firearm. Baldon pled guilty to one count of
possession with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C)

The district court calculated a total offense level of 31
and a criminal history category V (based on 11 criminal
history points), resulting in a 168 to 210 month guideline
range. The district court’s sentencing calculation included
two criminal history points under U.S.S.G. § 4A1.1(e) for
Baldon’s prior carjacking convictions and a two-point
enhancement for the possession of a firearm under U.S.S.G.
§ 2D1.1(b)(1). The district court agreed with the government
and applied the “modified categorical approach” (looking at
the charging documents) to determine whether Baldon’s
prior carjacking convictions were crimes of violence under
U.S.S.G. § 4A1.1(e). The district court sentenced Baldon to

3
The government noted this to the district court at sentencing.
Baldon did not contest this fact before the district court.
6 UNITED STATES V. BALDON

184 months. We have jurisdiction under 18 U.S.C. § 3742(a)
and 18 U.S.C. § 1291.

II.

We review de novo a district court’s determination that
“a prior conviction qualifies as a crime of violence.” United
States v. Perez, 932 F.3d 782, 784 (9th Cir. 2019) (citing
United States v. Rivera-Muniz, 854 F.3d 1047, 1048–49 (9th
Cir. 2017)). We apply the categorical approach set forth in
Taylor v. United States, 495 U.S. 575 (1990), to determine
whether a state conviction qualifies as a crime of violence
under U.S.S.G. § 4A1.1(e). See id. “Under the categorical
approach, we compare the elements of each offense with the
federal definition of ‘crime of violence’ to determine
whether the [state] offense criminalizes a broader range of
conduct than the federal definition captures.” United States
v. Edling, 895 F.3d 1153, 1155 (9th Cir. 2018). If the state
offense proscribes conduct beyond the federal definition, it
will not qualify as a crime of violence. See United States v.
Bankston, 901 F.3d 1100, 1102–03 (9th Cir. 2018).

However, even if the offense is not a categorical match,
we may use the modified categorical approach if the state
statute is divisible, i.e., if it sets out one or more elements of
the offense in the alternative. Id. at 1103 n.2; see also Perez,
932 F.3d at 785 n.1. “If ‘a defendant was convicted of
violating a divisible statute,’ a court may employ the
modified categorical approach, for which it must ‘identify,
from among several alternatives, the crime of conviction so
that the court may compare it to the generic offense.’”
United States v. Brown, 879 F.3d 1043, 1047 n.1 (9th Cir.
2018) (quoting Descamps v. United States, 570 U.S. 254,
263–64 (2013)).
 UNITED STATES V. BALDON 7

A.

Before applying the categorical approach, we must first
decide whether we are bound by Solorio-Ruiz v. Sessions,
881 F.3d 733 (9th Cir. 2018), where we held that section 215
is not a crime of violence under 8 U.S.C. § 1101(a)(43)(F) 4.
The government argues that Solorio-Ruiz is clearly
irreconcilable with the Supreme Court’s decision in
Stokeling v. United States, 139 S. Ct. 544 (2019). We agree.

A three-judge panel is bound by prior circuit decisions
unless the decision is “‘clearly irreconcilable’ with a
subsequent Supreme Court decision.” United States v.
Shelby, 939 F.3d 975, 978 (9th Cir. 2019) (quoting Close v.
Sotheby’s Inc., 894 F.3d 1061, 1072–73 (9th Cir. 2018)).
“The issues decided by the higher court need not be
identical,” only that the Supreme Court “undercut the theory
or reasoning underlying the prior circuit precedent in such a
way that the cases are clearly irreconcilable.” Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). “The
clearly irreconcilable requirement is a high standard,” and as
long as we “can apply our prior circuit precedent without

4
8 U.S.C. § 1101(a)(43)(F) defines “crime of violence” by cross-
referencing the definition provided in 18 U.S.C. § 16. Section 16 defines
“crime of violence” as:

(a) an offense that has as an element the use, attempted
use, or threatened use of physical force against the
person or property of another, or

(b) any other offense that is a felony and 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.

18 U.S.C. § 16.
8 UNITED STATES V. BALDON

running afoul of the intervening authority[,] [we] must do
so.” Sotheby’s, 894 F.3d at 1073 (internal quotation marks
omitted) (quoting United States v. Robertson, 875 F.3d 1281,
1291 (9th Cir. 2017), vacated on other grounds, 139 S. Ct.
1543 (2019)).

In Solorio-Ruiz, we relied on Johnson v. United States,
559 U.S. 133 (2010), to conclude that carjacking under
section 215 was not a crime of violence because section 215
“does not require the violent force that Johnson demands of
a crime of violence” and “requires only force in excess of
that required to seize the vehicle, however slight that may
be.” 881 F.3d at 737 (internal quotation marks omitted). We
interpreted Johnson to require “that the physical force that a
crime of violence entails” must be “violent force—that is,
force capable of causing physical pain or injury to another
person.” Id. at 736. We looked to California cases
interpreting section 215 and found that the statute does not
require the use of violent force because “California
carjacking ‘requires only force in excess of that required to
seize the vehicle,’ however slight that may be.” Id. at 737
(quoting People v. Hudson, 217 Cal. Rptr. 3d 775, 782 (Ct.
App. 2017)). We relied on Hudson’s facts to conclude that
the force inherent in driving the stolen vehicle can be
“enough to sustain a carjacking conviction, whenever the
victim puts up the slightest resistance.” Id. (emphasis added)
(citing Hudson, 217 Cal. Rptr. 3d at 782).

Last year the Supreme Court revisited Johnson in
Stokeling. The Court explained that at common law the terms
“violence” and “force” were used interchangeably, and that
“[t]he common law also did not distinguish between
gradations of ‘violence.’ If an act physically overcame a
victim’s resistance, ‘however slight’ that resistance might
be, it necessarily constituted violence.” Stokeling, 139 S. Ct.
 UNITED STATES V. BALDON 9

at 550. This understanding of “physical force” aligns with
Johnson because “the force necessary to overcome a
victim’s physical resistance is inherently ‘violent’ in the
sense contemplated by Johnson, and ‘suggest[s] a degree of
power that would not be satisfied by the merest touching.’”
Id. at 552–53 (quoting Johnson, 559 U.S. at 139).

This clarification of “violent force” (any force sufficient
to overcome a victim’s physical resistance) is “clearly
irreconcilable” with our reasoning in Solorio-Ruiz. Our
opinion rested on the analytical distinction between
substantial and minimal force. This distinction no longer
exists. See Ward v. United States, 936 F.3d 914, 919 (9th
Cir. 2019). As a result, Solorio-Ruiz’s holding is no longer
good law.

Baldon argues, however, that Solorio-Ruiz is not “clearly
irreconcilable” with Stokeling, relying on the Court’s
clarification that under Florida law a defendant is not guilty
of robbery when he “merely snatches money from the
victim’s hand” or steals a gold chain and the victim feels
defendant’s fingers on her skin. See Stokeling, 139 S. Ct.
at 555.

We have recently clarified that “Stokeling made clear
that force involved in snatchings, where there is no
resistance, is not sufficient to fall under the [statutory] force
clause.” Ward, 936 F.3d at 919 n.4 (emphasis added). But
Baldon cites no authority showing, and we have found none,
that carjacking can be accomplished by force with no
resistance from the victim. Rather, California courts have
held that “a perpetrator accomplishes the taking of a motor
vehicle by means of force, as defined under section 215,
when the perpetrator drives the vehicle while a victim holds
on or otherwise physically attempts to prevent the theft.”
People v. Lopez, 214 Cal. Rptr. 3d 618, 623 (Ct. App. 2017)
10 UNITED STATES V. BALDON

(emphasis added); accord Hudson, 217 Cal. Rptr. 3d at 779. 5
Thus, we may no longer rely on Solorio-Ruiz.

B.

We have one final question to resolve before we proceed
to determine whether carjacking is categorically a crime of
violence: Does Nieves-Medrano v. Holder, 590 F.3d 1057
(9th Cir. 2010) (order), the case that Solorio-Ruiz abrogated,
now control our decision? We conclude that it does not for
two reasons. First, the holding of Nieves-Medrano rested
mainly on our decision in United States v. Becerril-Lopez,
541 F.3d 881, 893 (9th Cir. 2008), in which we held that
robbery under section 211 was a crime of violence under
U.S.S.G. § 2L1.2. See 590 F.3d at 1057–58. We recently
abrogated Becerril-Lopez after holding that section 211
robbery was no longer a categorical crime of violence. See
Bankston, 901 F.3d at 1102. Second, our legal conclusion in
Nieves-Medrano rested on a crime of violence definition

5
Baldon cites one California robbery case, People v. Lescallett,
176 Cal. Rptr. 687 (Ct. App. 1981), that may support his contention that
robbery in California may be accomplished with no resistance by the
victim. This is insufficient to cast doubt on the clear authority in Hudson
and Lopez that tells us that physical resistance is required for carjacking
based on force.

The non-California robbery cases Baldon relies on are similarly
distinguishable because they focus on statutes that require no resistance
from the victim. See United States v. Bong, 913 F.3d 1252 (10th Cir.
2019) (holding that Kansas robbery statute could be accomplished by
mere snatching of the purse “without any resistance by or injury to the
victim”); United States v. Strickland, 860 F.3d 1224 (9th Cir. 2017)
(finding Oregon third degree robbery statute could be accomplished by
purse snatching). We affirmed the vitality of Strickland after Stokeling
on this distinction in United States v. Shelby, 939 F.3d 975, 979 (9th Cir.
2019).
 UNITED STATES V. BALDON 11

broader than the one applicable here in U.S.S.G. § 4B1.2(a).
See Becerril-Lopez, 541 F.3d at 889. Thus, Nieves-Medrano
is relevant but not controlling.

III.

Having resolved these preliminary questions, we now
consider whether section 215 carjacking is a categorical
crime of violence under U.S.S.G. § 4A1.1(e). We conclude
it is not.

A.

Section 4A1.1(e) borrows the definition of “crime of
violence” from U.S.S.G. § 4B1.2(a). See U.S.S.G.
§ 4A1.2(p).

U.S.S.G § 4B1.2(a) states:

(a) The term “crime of violence” means any
offense under federal or state law, punishable
by imprisonment for a term exceeding one
year, that—

(1) has as an element the use, attempted use,
or threatened use of physical force against the
person of another, or

(2) is murder, voluntary manslaughter,
kidnapping, aggravated assault, a forcible sex
offense, robbery, arson, extortion, or the use
or unlawful possession of a firearm described
in 26 U.S.C. § 5845(a) or explosive material
as defined in 18 U.S.C. § 841(c).
12 UNITED STATES V. BALDON

The government argues that section 215 is a categorical
crime of violence under both subsections (a)(1) and (a)(2).
Subsection (a)(1) is commonly known as the “elements” or
“force” clause, and subsection (a)(2) is often called the
“enumerated offenses” clause. 6 See Bankston, 901 F.3d at
1106 n.4; Edling, 895 F.3d at 1155. Baldon argues that the
government waived these arguments because it failed to
raise them before the district court.

“Generally, we do not entertain arguments on appeal that
were not presented or developed before the district court.”
Tibble v. Edison Int’l, 843 F.3d 1187, 1193 (9th Cir. 2016)
(en banc) (alteration and internal quotation marks omitted).
But we have discretion to consider waived issues in three
circumstances: “in the ‘exceptional’ case in which review is
necessary to prevent a miscarriage of justice or to preserve
the integrity of the judicial process,” “when a new issue
arises while appeal is pending because of a change in the
law,” and “when the issue presented is purely one of law and
either does not depend on the factual record developed
below, or the pertinent record has been fully developed.”
Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir. 1985).

We exercise our discretion to consider the government’s
argument that section 215 is a categorical crime of violence
under the elements clause in § 4B1.2(a)(1) because there was
a “change in the law.” Id. The Supreme Court decided
Stokeling while Baldon’s appeal was pending. We also
exercise our discretion to consider the government’s

6
The Court’s recent decision in Shular v. United States, 140 S. Ct.
779 (2020) does not affect our analysis. There, the Court addressed why
the elements clause analysis, id. at 786, and the enumerated offenses
clause analysis, id. at 785–86, for statutes like the one here, are not
impacted by its opinion in Shular.
 UNITED STATES V. BALDON 13

argument that section 215 is a crime of violence under the
enumerated offenses clause in § 4B1.2(a)(2) because it “is
purely one of law and . . . does not depend on the factual
record developed below.” Id. We do so because as explained
below, both analyses turn on the same question: Can a
section 215 conviction be based on fear of injury to property
alone?

B.

Because the categorical approach requires us to compare
the federal definition of “crime of violence” with the
elements of the state offense, our analysis begins by
comparing the applicable federal definition and section 215.
See Edling, 895 F.3d at 1155.

Section 215 will qualify as a crime of violence under
§ 4B1.2 if it is a categorical match to either the elements
clause (subsection (a)(1)) or the enumerated offenses clause
(subsection (a)(2)). See id.

In determining whether section 215 is a categorical
match, we consider the statute’s text, and “we may [also]
consider the interpretation of the statute provided by state
courts.” Perez, 932 F.3d at 785.

Section 215’s text criminalizes:

the felonious taking of a motor vehicle in the
possession of another, from his or her person
or immediate presence, or from the person or
immediate presence of a passenger of the
motor vehicle, against his or her will and with
the intent to either permanently or
temporarily deprive the person in possession
14 UNITED STATES V. BALDON

of the motor vehicle of his or her possession,
accomplished by means of force or fear.

Cal. Pen. Code § 215(a). Baldon argues that section 215 may
be violated through fear of injury to property alone, without
any fear of injury to a person, and therefore, the statute
“criminalizes a broader range of conduct than the federal
definition captures.” Edling, 895 F.3d at 1155. We agree.

1.

We turn first to the elements clause. Section 215 does not
textually limit “fear” to fear against the person of another,
unlike § 4B1.2(a)(1). The California Legislature “created the
crime of carjacking in 1993.” People v. Lopez, 79 P.3d 548,
551 (Cal. 2003). The statute “is a direct offshoot of robbery”
and its statutory language “tracks the language in the robbery
statute.” Id. at 553. As relevant here, “[b]oth are
accomplished by means of force or fear.” Id. (internal
quotation marks omitted). Section 212 defines “fear” as used
in the robbery statute (section 211) to include fear of injury
to the property as well as the person. Cal. Pen. Code § 212.
The government acknowledges that California courts
construe section 215 alongside the robbery statute but argues
that the carjacking statute does not import the statutory
definition of fear. However, California’s model jury
instructions are to the contrary. 7 The carjacking instructions
incorporate the statutory robbery definition of fear into the
carjacking definition of fear. See People v. Gomez, 121 Cal.
Rptr. 3d 475, 485 n.6 (Ct. App. 2011) (noting that the jury
“was instructed, in accordance with CALCRIM No. 1650,

7
California courts routinely cite model jury instructions
authoritatively to interpret state statutes. See, e.g., People v. Montalvo,
248 Cal. Rptr. 3d 708, 728 n.12 (Ct. App. 2019).
 UNITED STATES V. BALDON 15

that fear for the purposes of the carjacking count, ‘means
fear of injury to the person, himself or herself or injury to the
person’s family or property.’” (emphasis added)
disapproved on other grounds by People v. Elizade, 351 P.3d
1010 (2015)).

The government argues that Baldon has not established
a “realistic probability” that a section 215 violation would be
based on or include fear of injury to property. See Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (requiring a
“realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the
generic definition of a crime”). To show a “realistic
probability” that California would apply section 215 to
include conduct outside the scope of § 4B1.2(a)(1) Baldon
has two paths. He can first “point to his own case or other
cases in which the state courts in fact did apply the statute in
the special (nongeneric) manner for which he argues.” Id.
Or, “if a state statute explicitly defines a crime more broadly
than the generic definition, no ‘legal imagination’ is required
to hold that a realistic probability exists . . . .’” Chavez-Solis
v. Lynch, 803 F.3d 1004, 1009 (9th Cir. 2015) (quoting
United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007)
(en banc) abrogated on other grounds by United States v.
Stitt, 139 S. Ct. 2007 (2018)). “The [defendant] may simply
‘rely on the statutory language to establish the statute as
overly inclusive.’” Id. at 1010 (quoting United States v.
Vidal, 504 F.3d 1072, 1082 (9th Cir. 2007) (en banc)).

Baldon succeeds on both paths. First, no “legal
imagination” is required because section 215 explicitly
defines carjacking more broadly than § 4B1.2(a)(1) by not
limiting fear only to persons. Second, Baldon also points to
at least one case in which the California Court of Appeal
upheld a carjacking conviction based in part on fear of injury
16 UNITED STATES V. BALDON

to property. See People v. Lopez, No. F053928, 2008 WL
5103231, at *8 (Cal. Ct. App. Dec. 5, 2008) (unpublished)
(finding sufficient evidence of “force or fear” because one
of the reasonable inferences the jury could have made was
“that [the victim] was concerned for the fate of his vehicle”).

The government, however, states that no published
California carjacking case has ever cited the statutory
definition of fear under the robbery statute. But, we can rely,
and have previously relied, on unpublished California cases
to show that the state has applied the statute in a non-generic
manner. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 876
n.3 (9th Cir. 2008); see also Castillo-Cruz v. Holder,
581 F.3d 1154, 1161 n.9 (9th Cir. 2009). And, importantly,
the jury instructions routinely used by California courts
include fear of injury to property. It would be one thing if
the fear of injury to property element were simply invented
by creative defense lawyers. It is quite another when that
element is part of the standard California jury instructions
that are perhaps given in every case. The government also
argues that the common thread weaving the carjacking cases
together is threats of force against the victim. 8 But that
argument misconstrues the focus of our analysis. Under the
categorical approach we pay particular attention to cases
“that examine the outer contours of the conduct
criminalized.” United States v. Strickland, 860 F.3d 1224,

8
The government also briefly argues that the legislature enacted the
statute because of the “serious potential for harm to the victim . . . .”
People v. Antoine, 56 Cal Rptr. 2d 530, 534 (Ct. App. 1996) (citing
legislative committee reports). But “[s]ection 215’s ‘actual language
prevails, not the [legislative] committee’s report.’” People v. Johnson,
343 P.3d 808, 827 (Cal. 2015) (quoting Martinez v. Regents of Univ. of
California, 241 P.3d 855, 865 (Cal. 2010)) (finding that “immediate
presence” in section 215 had the same meaning as in section 211 and
could include a victim being carjacked while baking in the kitchen).
 UNITED STATES V. BALDON 17

1226 (9th Cir. 2017) (emphasis added). This is necessary
because “we must presume that the conviction rested upon
[nothing] more than the least of th[e] acts criminalized.”
Moncrieffe v. Holder, 569 U.S. 184, 190–191 (2013). Here,
the least of the acts criminalized, as shown by the jury
instructions, is carjacking accomplished by fear of injury to
property. 9 Thus, section 215 is not a categorical match to the
elements clause of § 4B1.2(a).

2.

We find that the government’s enumerated offenses
clause argument fails for the same reason: section 215 is not
a categorical match because it encompasses fear of injury to
property.

The government’s argument is based on our decision in
United States v. Velasquez-Bosque, 601 F.3d 955 (9th Cir.
2010), where we held that section 215 is a categorical crime
of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because
carjacking was a match to the combination of generic
robbery and generic extortion under the enumerated offenses
clause. Id. at 959. 10 Our analysis was “largely controlled by

9
The government also relies on United States v. Ramos, 312 F.
App’x 852 (9th Cir. 2009), to support its elements clause argument. That
non-precedential decision relied on United States v. Becerril-Lopez,
541 F.3d 881 (9th Cir. 2008) abrogated by United States v. Bankston,
901 F.3d 1100 (9th Cir. 2018). But our holding in Becerril-Lopez
depended on the enumerated offenses clause analysis. 541 F.3d at 891–
92. We explicitly noted in Becerril-Lopez that California robbery was
not a match for generic robbery under the elements clause of the
Sentencing Guidelines. Id. at 891.
10
We defined general robbery as “aggravated larceny, containing at
least the elements of misappropriation of property under circumstances
involving immediate danger to the person,” and generic extortion as
18 UNITED STATES V. BALDON

our decision in United States v. Becerril-Lopez,” where after
comparing the common elements of sections 215 and 211 we
found that “[t]o the extent that the elements in section 211
are identical to those in section 215, Becerril-Lopez requires
us to reach the conclusion that section 215 is also a crime of
violence because it criminalizes the same or less conduct as
the combination of generic robbery and generic extortion.”
Id. at 958–59. But Becerril-Lopez is no longer good law. See
Bankston, 901 F.3d at 1104 (holding that section 211
robbery is “no longer a categorical match to a combination
of Guidelines-described robbery and extortion” because the
Guidelines’ new extortion definition “does not criminalize
extortion committed by threats to property”).

We find the logic of Bankston equally applicable to
section 215. As we explained in Bankston, the definition of
“generic extortion” changed after the 2016 amendments to
the Sentencing Guidelines, and it no longer includes fear of
injury to property. Id. at 1103–04. Carjacking is thus no
longer a categorical match for generic robbery and extortion.
Velasquez-Bosque’s holding to the contrary is no longer
good law.

This leaves us only to decide whether carjacking
qualifies as a crime of violence under the modified
categorical approach (which, as discussed above, requires a
divisible statute). Here, however, the government does not
contest Baldon’s argument that section 215 is indivisible and
thus concedes the point. See United States v. Peterson,
902 F.3d 1016, 1021 n.2 (9th Cir. 2018). But even if the
government had argued that section 215 is divisible and that

“obtaining something of value from another with his consent induced by
the wrongful use of force, fear, or threats.” Velasquez-Bosque, 601 F.3d
at 958, 959.
 UNITED STATES V. BALDON 19

the district court was correct in applying the modified
categorical approach, we would disagree. See United States
v. Dixon, 805 F.3d 1193, 1198–99 (9th Cir. 2015).

A divisible statute “must contain ‘multiple, alternative
elements of functionally separate crimes.’” Id. at 1198
(quoting Rendon v. Holder, 764 F.3d 1077, 1085 (9th Cir.
2014)). Thus, in Dixon we held that section 211 was not
divisible, even though it was disjunctively worded, because
the phrases were “alternative means, not alternative
elements.” Id. So too here. Section 215 contains several
disjunctively worded phrases such as “force or fear,”
“person or immediate presence,” and “permanently or
temporarily.” Cal. Pen. Code § 215. California model jury
instructions for section 215, like those for section 211, see
Dixon, 805 F.3d at 1198, show that these disjunctively
worded phrases are in fact alternative means, not elements.
See Criminal Jury Instructions § 1650 (Jud. Conf. of Cal.
2019). For example, jurors need not agree on whether
defendant “used force or fear”—“a jury can return a guilty
verdict even if some jurors believe the defendant used force
and others believe the defendant used fear.” Id. Thus, section
215, like section 211, is indivisible. Accordingly, the
modified categorical approach is inapplicable. See Brown,
879 F.3d at 1047 n.1.

The district court thus erred in determining Baldon’s
criminal history points and category.

IV.

Baldon next challenges the calculation of his base
offense level based on a two-point enhancement for
possession of a firearm under U.S.S.G. § 2D1.1(b)(1). He
argues there was insufficient evidence that he owned the gun
or was aware of its presence. We disagree.
20 UNITED STATES V. BALDON

A.

We review a district court’s factual finding that U.S.S.G.
§ 2D1.1(b) applies for clear error. United States v. Boykin,
785 F.3d 1352, 1364 (9th Cir. 2015). “Clear error requires a
‘definite and firm conviction that a mistake’ occurred.”
United States v. Gardenhire, 784 F.3d 1277, 1280 (9th Cir.
2015) (quoting United States v. Hinkson, 585 F.3d 1247,
1260 (9th Cir. 2009) (en banc)).

B.

Under U.S.S.G. § 2D1.1(b)(1), the district court must
apply a two-point enhancement if the court finds that “a
dangerous weapon (including a firearm) was possessed”
during the offense. This enhancement “reflects the increased
danger of violence when drug traffickers possess weapons.”
U.S.S.G. § 2D1.1, comment. (n.11). “The government ‘must
prove possession by a preponderance of the evidence before
the court can apply the two-level increase under
§ 2D1.1(b)(1).’” Boykin, 785 F.3d at 1364 (quoting United
States v. Cazares, 121 F.3d 1241, 1244 (9th Cir. 1997)).
Then, “once the government demonstrates that a defendant
possessed a dangerous weapon, . . . the burden of proof is on
the defendant to prove that it is ‘clearly improbable’ that he
possessed a weapon in connection with the offense.” United
States v. Nelson, 222 F.3d 545, 549 (9th Cir. 2000) (citing
United States v. Restrepo, 884 F.2d 1294, 1296 (9th Cir.
1989); U.S.S.G. § 2D1.1(b)(1), comment. (n.3)).

C.

There is no dispute that the firearm was present in the
storage unit in the backpack with Baldon’s drugs. The
contested question is whether Baldon constructively
possessed the firearm. Constructive possession requires “the
 UNITED STATES V. BALDON 21

government [to] prove ‘a sufficient connection between the
defendant and the [item] to support the inference that the
defendant exercised dominion and control over [the item].’”
United States v. Terry, 911 F.2d 272, 278 (9th Cir. 1990)
(quoting United States v. Disla, 805 F.2d 1340, 1350 (9th
Cir. 1986)). This is a case-specific inquiry—we ask, looking
at the circumstances of each case, whether there is “such a
nexus or relationship between the defendant and the [item]
that it is reasonable to treat the extent of the defendant’s
dominion and control as if it were actual possession.” Terry,
911 F.2d at 278 (internal quotation marks omitted) (quoting
United States v. Cousins, 427 F.2d 382, 384 (9th Cir. 1970)).

Here, the government introduced evidence that Baldon
entered the storage unit, stored his drugs in the unit, and paid
cash in person to extend the lease. The government also
stated that the gun was in the same backpack as the drugs,
and ammunition matching the firearm was found in his
residence 11 contemporaneously with the search of the
storage unit. Based on the evidence presented, we find that
the district court did not clearly err in finding by a
preponderance of the evidence that Baldon possessed the
firearm found in the storage unit. 12

Baldon, relying on a line of cases beginning with United
States v. Kelso, 942 F.2d 680 (9th Cir. 1991), argues that this

11
The ammunition match is additional evidence. But, there is more
than enough evidence in the record, without the ammunition match, to
support the district court’s implicit finding that Baldon constructively
possessed the gun.
12
While admittedly the record could be clearer, at oral argument and
in the briefs Baldon conceded that the district court did make a finding.
See Oral Argument at 18:35–18:50, Baldon v. United States, No. 18-
10411 (9th Cir. Nov. 13, 2019).
22 UNITED STATES V. BALDON

evidence was insufficient to infer constructive possession.
We disagree.

In Kelso we held that mere access to a weapon was
insufficient evidence of dominion or control. Id. at 682.
There, the defendant was a passenger in a car that contained
drugs and a loaded weapon in a bag behind the driver’s seat.
Id. The defendant and the driver/owner of the car admitted
they knew about the drugs, but each argued that it was the
other’s drugs, and both denied knowledge of the gun. Id. at
681.

In Cazares, we extended our holding in Kelso to homes
and held that mere access to weapons in a room not occupied
by the defendant could not establish “possession or
dominion.” 121 F.3d at 1245–46. Defendant was living in an
apartment with at least three other people and was found to
have possessed firearms located in one of the bedrooms. We
explained that possession cannot be determined by “pure
speculation” and concluded that merely being one of several
residents in an apartment that contained firearms was not
enough to support a finding of constructive possession. 13 Id.
at 1245.

In United States v. Highsmith, we found that evidence
that defendant had access to and sold drugs from his cohort’s
bedroom did not impute knowledge to him about a firearm
in the bedroom. 268 F.3d 1141, 1142 (9th Cir. 2001).

Kelso, Cazares, and Highsmith reflect our long history
of “carefully preserv[ing] the requirement that the

13
We specifically noted that the government did not “even prove
that the guns were found in the bedroom occupied by [defendant].”
Cazares, 121 F.3d at 1245.
 UNITED STATES V. BALDON 23

government demonstrate sufficient indicia of dominion and
control to support the inference of constructive possession.”
United States v. Disla, 805 F.2d 1340, 1351 (9th Cir. 1986).
The government cannot rely only on evidence of “mere
proximity” to the contraband, “mere presence on the
property where it is located, or mere association, without
more, with the person who does control the [contraband] or
the property . . . .” Id. But this is not a case of mere presence
or proximity, and thus this case is not governed by Kelso.

Baldon is not a mere passenger in a car, a roommate in a
house where guns are found, or a roommate dealing drugs
from a cohort’s bedroom. The government proved that
Baldon used the storage unit and that he had dominion and
control—he stored his drugs in the backpack where the gun
was found, in the unit he paid for. 14 And unlike in Highsmith,
ammunition matching the type of gun in the storage unit was
contemporaneously found in Baldon’s residence. Most
importantly, in Kelso, the defendant denied owning the drugs
and there was another person physically present at the time
of the arrest—creating the equally likely background
inference that the gun was the driver’s rather than the
defendant’s. Here though, Baldon admitted it was his drugs
and does not argue that Angelique Baker physically accessed
the unit; only that there was a possibility. That is not Kelso,
Cazares, or Highsmith.

14
The Presentence Investigation Report states that it was Baldon’s
storage unit. Because Baldon did not affirmatively contest this portion
of the report, the district court could have relied on this statement alone
in finding that Baldon possessed the firearm. See Fed. R. Crim. P.
32(i)(3)(A).
24 UNITED STATES V. BALDON

V.

Because we conclude that the district court incorrectly
calculated Baldon’s criminal history by improperly
including two points for his prior carjacking convictions, we
vacate and remand for resentencing. 15

AFFIRMED in part, VACATED in part and
REMANDED.

15
Because we remand based on a procedural error, we decline to
consider Baldon’s argument that the sentence was substantively
unreasonable. See United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir.
2006) (“If there was material error in the Guidelines calculation, we will
remand for resentencing, without reaching the question of whether the
sentence as a whole is reasonable.”).