MEMORANDUM OPINION AND ORDER
ELLEN
S. HUVELLE UNITED STATES DISTRICT JUDGE
Defendant
Trevonta Barnes moves to dismiss Count Two of the indictment,
which charges a violation of 18 U.S.C. § 924(c), by
arguing that the alleged predicate crime, federal carjacking
in violation of 18 U.S.C. § 2119, does not qualify as a
"crime of violence." (See Mot. to Dismiss
[ECF 29] at 1.) For the following reasons, the Court will
deny Barnes' motion.
18
U.S.C. § 924(c)(1)(A), which carries a mandatory minimum
of at least five years, encompasses:
[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime (including a crime of
violence or drug trafficking crime that provides for an
enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be
prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm ....
18 U.S.C. § 924(c)(1)(A) (emphases added). "Crime
of violence" is defined in Section 924(c)(3) to include
the following:
[A]n 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.
Id. § 924(c)(3). In its recent case United
States v. Davis, 139 S.Ct. 2319 (2019), the Supreme
Court struck down Section 924(c)(3)(B), otherwise known as
the "residual clause," as unconstitutionally vague.
See Id. at 2336. As a result, a would-be predicate
offense can only constitute a "crime of violence"
sufficient to satisfy Section 924(c)(3) if it fits within
subsection (A)-it must "ha[ve] as an element the use,
attempted use, or threatened use of physical force against
the person or property of another." 18 U.S.C. §
924(c)(3)(A). This clause is often referred to as the
"force clause," or the "elements clause."
To
determine whether a prior conviction qualifies as a
"crime of violence" under the elements clause,
courts use what is known as the "categorical
approach." Descamps v. United States, 570 U.S.
254, 260-61 (2013). The "categorical approach"
means that courts look at the "elements" of the
generic offense rather than the particular facts underlying a
conviction. Id. at 261; see also Mathis v.
United States, 136 S.Ct. 2243, 2251 (2016) ("How a
given defendant actually perpetrated the crime-what [the
Supreme Court has] referred to as the 'underlying brute
facts or means' of commission-makes no difference
...." (internal citation omitted)). Because the Court
"examine[s] what the [predicate crime] necessarily
involved, not the facts underlying the case, [it] must
presume that the [crime] rested upon nothing more than the
least of the acts criminalized." Moncrieffe v.
Holder, 569 U.S. 184, 190-91 (2013) (original
alterations and internal quotation marks omitted).
The
Court must therefore determine the least of the acts
criminalized under the predicate statute and ask if such an
act "has as an element the use, attempted use, or
threatened use of physical force." 18 U.S.C. §
924(c)(3)(A). To answer that question, the Court will look to
the definition of the offense. 18 U.S.C. § 2119, which
criminalizes carjacking, encompasses "[w]hoever, 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."
Because
carjacking can be accomplished "by intimidation,"
in addition to "by force and violence," Barnes
argues that it does not categorically require force.
However, every circuit to consider this question has
concluded otherwise and uniformly held that a carjacking
committed "by intimidation" nonetheless involves,
at the very least, threatened force. See, e.g., Estell v.
United States, 924 F.3d 1291, 1293 (8th Cir. 2019);
United States v. Jackson, 918 F.3d 467, 486 (6th
Cir. 2019); United States v. Cruz-Rivera, 904 F.3d
63, 66 (1st Cir. 2018); United States v. Kundo, 743
Fed.Appx. 201, 203 (10th Cir. 2018); United States v.
Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017);
United States v. Jones, 854 F.3d 737, 740 (5th Cir.
2017); United States v. Evans, 848 F.3d 242, 247-48
(4th Cir. 2017); In re Smith, 829 F.3d 1276, 1280
(11th Cir. 2016). The Court agrees with the persuasive
reasoning set forth by these circuits. As Chief Judge Ho well
of this court aptly observed, intimidation is "conduct
reasonably causing fear of bodily harm." United
States v. Hammond, 354 F.Supp.3d 28, 50 (D.D.C. 2018).
And, "[a] defendant cannot put a reasonable person in
fear of bodily harm without threatening to use 'force
capable of causing physical pain or injury."'
Gutierrez, 876 F.3d at 1257 (quoting Johnson v.
United States, 559 U.S. 133, 140 (2010)); see also
Jackson, 918 F.3d at 486 ("[I]ntimidation ...
involves the threat to use physical force." (internal
quotation marks omitted)).
Barnes
argues that "we all know that many
other types of intimidation (financial, emotional,
etc.) also exist," and that "intimidation could
also occur... through a threat of poisoning."
(See Reply [ECF 56] at 5 (emphases in original).). A
defendant must do more than simply apply "legal
imagination to a ... statute's language."
Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193
(2007). He must demonstrate "a realistic
probability, not a theoretical possibility," that
the statute could be applied to conduct that does not include
an element of force. Id. (emphasis added). But
Barnes points the Court to no such cases and, to paraphrase
the Fourth Circuit, "it will be the rare [carjacker] who
commits that offense with poison." United States v.
McNeal, 818 F.3d 141, 156 (4th Cir. 2016).
Barnes
next argues that the D.C. Circuit has allowed jurors to make
inferences based on evidence of the end results of a crime
from the position of the victim, and as such, section 2119
cannot categorically qualify as a crime of violence because
"no direct proof... appears to be necessary that force
or violence was actually ever expressed or acted on."
(Reply at 6; see also Mot. to Dismiss at 4-5.)
However, the cases he cites simply make the unremarkable
observation that the fact that a defendant's victim died
is likely relevant to the question of whether force and
violence were used in commission of the crime. See United
States v. Rezaq,134 F.3d 1121, 1138 (D.C. Cir. 1998);
see also United States v. Rivera-Gomez,67 F.3d 993,
996 (1st Cir. 1995) ("It is difficult to conceive of a
situation in which the death of a victim will not be relevant
to the use of force and violence during the commission of an
attempted carjacking."), overruled on other grounds
by Jones v. ...