Submitted December 5, 2017 [*] Seattle, Washington
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.
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.
U.S.C. § 2255
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 §
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.
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.
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).
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.
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 § ...