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United States v. Gutierrez

United States Court of Appeals, Ninth Circuit

December 12, 2017

United States of America, Plaintiff-Appellee,
v.
Samuel Luis Gutierrez, Defendant-Appellant.

          Submitted December 5, 2017 [*] Seattle, Washington

         Appeal from the United States District Court for the Eastern District of Washington Lonny R. Suko, District Judge, Presiding D.C. Nos. 1:16-cv-03112-LRS, 1:14-cr-02094-LRS-1

          Matthew Campbell, Federal Defenders of Eastern Washington & Idaho, Spokane, Washington, for Defendant-Appellant.

          Thomas J. Hanlon, Assistant United States Attorney; Michael C. Ormsby, United States Attorney; Joseph H. Harrington, Acting United States Attorney; United States Attorney's Office, Yakima, Washington; for Plaintiff-Appellee.

          Before: Diarmuid F. O'Scannlain, Richard C. Tallman, and Paul J. Watford, Circuit Judges.

         SUMMARY [**]

         28 U.S.C. § 2255

         Affirming the district court's denial of a motion under 28 U.S.C. § 2255 challenging a conviction under 18 U.S.C. § 924(c)(1)(A)(ii) for brandishing a firearm during a crime of violence, the panel held that the federal offense of carjacking is a "crime of violence" under § 924(c).

          OPINION

          PER CURIAM.

         The sole question presented by this appeal is whether the federal offense of carjacking is a "crime of violence" under 18 U.S.C. § 924(c). We hold that it is.

         The facts underlying this case are simple and not in dispute. Samuel Gutierrez approached a woman in a parking lot, pointed a silver handgun at her, and demanded her keys. The woman complied, and Gutierrez drove off with her car. The police were notified immediately and apprehended Gutierrez after a short chase. Gutierrez was found in possession of the victim's cell phone and a loaded, nickel-plated gun.

         The government charged Gutierrez with three counts: (1) carjacking, in violation of 18 U.S.C. § 2119; (2)brandishing a firearm during a crime of violence (namely, the carjacking charged in count 1), in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and (3) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Pursuant to a plea agreement, Gutierrez pleaded guilty to the second count in exchange for the government's dismissal of the first and third counts. The district court sentenced Gutierrez to 180 months in prison, the sentence to which the parties had stipulated under Federal Rule of Criminal Procedure 11(c)(1)(C).

         Gutierrez did not take a direct appeal, but less than a year after entry of judgment he filed a motion challenging the validity of his conviction under 28 U.S.C. § 2255. Gutierrez argued that his conviction for brandishing a firearm during a crime of violence is invalid because the predicate offense for that charge-carjacking-does not qualify as a crime of violence. The district court denied relief after determining that carjacking is a crime of violence and that Gutierrez's conviction is therefore lawful. On appeal, the government does not raise any procedural barriers to our consideration of Gutierrez's collateral attack, so we proceed straight to the merits.

         As relevant here, § 924(c) punishes any person who uses or carries a firearm "during and in relation to any crime of violence." 18 U.S.C. § 924(c)(1)(A). The term "crime of violence" is defined in § ...


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