United States v. Paul Parnell

                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 14-30208
           Plaintiff-Appellee,
                                          D.C. No.
              v.                   1:13-cr-00030-BLW-1

PAUL EDWARD PARNELL,
        Defendant-Appellant.               OPINION


      Appeal from the United States District Court
                for the District of Idaho
    B. Lynn Winmill, Chief District Judge, Presiding

               Argued and Submitted
          March 10, 2016—Portland, Oregon

                   Filed April 12, 2016

     Before: Raymond C. Fisher, Marsha S. Berzon
          and Paul J. Watford, Circuit Judges.

              Opinion by Judge Fisher;
            Concurrence by Judge Watford
2                  UNITED STATES V. PARNELL

                           SUMMARY*


                          Criminal Law

    Vacating a sentence and remanding for resentencing, the
panel held that armed robbery under Massachusetts law does
not have “as an element the use, attempted use, or threatened
use of physical force against the person of another,” and
therefore, under the categorical approach, does not qualify as
a predicate violent felony under the Armed Career Criminal
Act’s force clause.

   The panel affirmed the defendant’s conviction in a
concurrently filed memorandum disposition.

    Concurring, Judge Watford wrote that the court’s
conclusion is compelled by two oddities of Massachusetts
law: that Massachusetts has abandoned the traditional
common-law definition of robbery requiring use of violence
or intimidation; and that for armed robbery, the weapon need
not play any role in the offense and the victim need not be
aware of the weapon’s existence.


                            COUNSEL

Robert K. Schwarz (argued) and Melissa Winberg, Federal
Defender Services of Idaho, Boise, Idaho, for Defendant-
Appellant.


  *
    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. PARNELL                            3

Wendy J. Olson, United States Attorney, Christian S.
Nafzger, Assistant United States Attorney, and Joshua D.
Hurwit (argued), District of Idaho, Boise, Idaho, for Plaintiff-
Appellee.


                             OPINION

FISHER, Circuit Judge:

     Paul Edward Parnell was found guilty of unlawful
possession of a firearm in violation of 

18 U.S.C. § 922

(g)(1).1
The government sought an enhanced penalty under the
Armed Career Criminal Act (ACCA), 

18 U.S.C. § 924

(e),
which provides that a person who violates § 922(g) and who
“has three previous convictions” for a “violent felony” shall
be imprisoned for a minimum of 15 years and a maximum of
life. 

18 U.S.C. § 924

(e). A “violent felony” is defined as
“any crime punishable by imprisonment for a term exceeding
one year” that “(i) has as an element the use, attempted use,
or threatened use of physical force against the person of
another; or (ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 

Id.

§ 924(e)(2)(B) (emphasis added). Under § 924(e)(2)(B)(i),
known as the force clause, “the phrase ‘physical force’ means
violent force – that is, force capable of causing physical pain


  1
    See 

18 U.S.C. § 922

(g)(1) (“It shall be unlawful for any person . . .
who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to ship or transport in
interstate or foreign commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or ammunition which has
been shipped or transported in interstate or foreign commerce.”).
4               UNITED STATES V. PARNELL

or injury to another person.” Johnson v. United States,

559 U.S. 133, 140

 (2010).

    The district court concluded Parnell qualifies as an armed
career criminal based in part on his 1990 conviction for
armed robbery. See 

Mass. Gen. Laws Ann. ch. 265, § 17

.
Parnell argues this offense does not have “as an element the
use, attempted use, or threatened use of physical force against
the person of another.” We agree.

                       DISCUSSION

     We review de novo a district court’s conclusion that a
prior conviction is a predicate offense under ACCA. See
United States v. Snyder, 

643 F.3d 694, 696

 (9th Cir. 2011).
“To determine whether a prior conviction qualifies as a
violent felony under 

18 U.S.C. § 924

(e), we apply the
‘categorical approach’ outlined by the Supreme Court in
Taylor v. United States, 

495 U.S. 575

 (1990).” United States
v. Jennings, 

515 F.3d 980, 987

 (9th Cir. 2008). “Under that
approach, we initially evaluate whether a defendant’s prior
conviction corresponds to an offense enumerated as a violent
felony in § 924(e)(2) by examining only ‘the fact of
conviction and the statutory definition of the prior offense.’”
Id. (quoting Taylor, 

495 U.S. at 602

). “Where the statute of
conviction is overinclusive, criminalizing some conduct that
would qualify as a predicate offense and other conduct that
would not, Taylor authorizes courts to ‘go beyond the mere
fact of conviction in a narrow range of cases where a jury was
actually required to find all the elements of the enumerated
offense.’” 

Id.

 (alteration omitted) (quoting Taylor, 

495 U.S. at 602

). “In such cases, we employ the ‘modified categorical
approach’ and examine the charging paper and jury
instructions to determine whether the defendant was
                    UNITED STATES V. PARNELL                                5

necessarily convicted of an offense corresponding to one
listed in § 924(e)(2).” Id. Only in the case of a divisible
statute, however, does the modified categorical approach
apply. See Ramirez v. Lynch, 

810 F.3d 1127, 1131

 (9th Cir.
2016) (citing Descamps v. United States, 

133 S. Ct. 2276

,
2283–85 (2013)). Here, we hold Parnell’s conviction for
armed robbery does not qualify as a violent felony under the
categorical approach.

    For an individual to be convicted of armed robbery under
Massachusetts law, 

Mass. Gen. Laws Ann. ch. 265, § 17

, the
jury must find the defendant (1) committed a robbery
(2) while in possession of a weapon. See King v.
MacEachern, 

665 F.3d 247, 253

 (1st Cir. 2011) (citing
Commonwealth v. Tevlin, 

741 N.E.2d 827, 833

 (Mass.
2001)).2

    To satisfy the first element, a robbery can be committed
in one of two ways: (1) “by force and violence” (i.e., the
actual force prong) or (2) “by assault and putting in fear” (i.e.,
the constructive force prong). 

Mass. Gen. Laws Ann. ch. 265, § 19

(b).3 Under either prong, “the degree of force is


 2
   See 

Mass. Gen. Laws Ann. ch. 265, § 17

 (“Whoever, being armed with
a dangerous weapon, assaults another and robs, steals or takes from his
person money or other property which may be the subject of larceny shall
be punished by imprisonment in the state prison for life or for any term of
years . . . .”).
     3
    See 

Mass. Gen. Laws Ann. ch. 265, § 19

(b) (“Whoever, not being
armed with a dangerous weapon, by force and violence, or by assault and
putting in fear, robs, steals or takes from the person of another, or from his
immediate control, money or other property which may be the subject of
larceny, shall be punished by imprisonment in the state prison for life or
for any term of years.”).
6               UNITED STATES V. PARNELL

immaterial so long as it is sufficient to obtain the victim’s
property ‘against his will.’” Commonwealth v. Jones,

283 N.E.2d 840, 843

 (Mass. 1972) (quoting 

Mass. Gen. Laws Ann. ch. 277, § 39

). “[S]o long as the victim is aware of the
application of force which relieves him of his property . . . ,
the requisite degree of force is present to make the crime
robbery.” 

Id.

 at 844–45. The offense need not involve
resistance by the victim. See 

id. at 844

 (recognizing but
declining to follow the majority rule, under which “snatching
does not involve sufficient force to constitute robbery, unless
the victim resists the taking or sustains physical injury, or
unless the article taken is so attached to the victim’s clothing
as to afford resistance”). Under the actual force prong,
moreover, it is not necessary that the victim be placed in fear.
See 

id. at 843

; Commonwealth v. Brown, 

318 N.E.2d 486, 487

(Mass. App. Ct. 1974).

    To satisfy the second element of armed robbery, the
defendant must possess a dangerous weapon during the
commission of the offense. The weapon, however, need not
be “fired, employed to effectuate the robbery, used in a
threatening manner, or even generally or openly displayed.”
King, 

665 F.3d at 253

. Nor need the victim be aware of the
weapon’s presence. See Commonwealth v. Goldman,

367 N.E.2d 1181, 1182

 (Mass. App. Ct. 1977).

    We agree with Parnell that the force required by the actual
force prong of robbery under Massachusetts law does not
satisfy the requirement of physical force under
§ 924(e)(2)(B)(i) – “force capable of causing physical pain or
injury to another person.” Johnson, 

559 U.S. at 140

.
Because the “degree of force is immaterial,” Jones,

283 N.E.2d at 843

 (emphasis added), accord Commonwealth
v. Joyner, 

4 N.E.3d 282, 293

 (Mass. 2014), any force,
                   UNITED STATES V. PARNELL                            7

however slight, will satisfy this prong so long as the victim is
aware of it. Such force is insufficient under Johnson.

     Purse snatching cases upon which Parnell relies
demonstrate the Massachusetts statute does apply to minimal,
nonviolent force. In Jones, 

283 N.E.2d at 842

, for example,
the defendant simply grabbed the victim’s pocketbook from
her arm. The victim explained: “I really couldn’t tell you
what he did. All I knew he was standing there. Next thing I
knew, I felt something off my arm. I realized my bag was
gone.” 

Id.

 The court held this testimony proved sufficient
force to satisfy the statute, because “[s]natching necessarily
involves the exercise of some actual force.” 

Id. at 845

(emphasis added). The court held “where, as here, the actual
force used is sufficient to produce awareness, although the
action may be so swift as to leave the victim momentarily in
a dazed condition, the requisite degree of force is present to
make the crime robbery.” 

Id.

 (emphasis added). Similarly,
in Brown, 

318 N.E.2d at 487

, the defendant was convicted of
robbery where he merely snatched a small purse the victim
was holding in her hand, touching neither her hand nor her
body. The court held “the pulling of a purse from a victim’s
hand constituted sufficient force to satisfy the ‘by force and
violence’ alternative of the statutory definition” of robbery.
Id.4

    Under our case law applying Johnson, this level of force
– the snatching of a purse from a victim’s hand – does not


  4
    Jones and Brown also show there exists a realistic probability, not
merely a theoretical possibility, that Massachusetts would apply its
robbery and armed robbery statutes to conduct falling outside ACCA’s
violent felony definition. See Ramirez, 

810 F.3d at 1131

 (citing Gonzales
v. Duenas-Alvarez, 

549 U.S. 183, 193

 (2007)).
8                UNITED STATES V. PARNELL

constitute force “capable of causing physical pain or injury to
another person.” Johnson, 

559 U.S. at 140

. In United States
v. Dominguez-Maroyoqui, 

748 F.3d 918, 921

 (9th Cir. 2014),
for example, we held the crime of assaulting a federal officer
was not a crime of violence under Johnson because it reached
conduct such as chasing a prosecutor down the street and
bumping into him, walking up to a prosecutor and jolting her
arm and shoulder, grabbing a wildlife agent’s jacket or
spitting in a mail carrier’s face. Similarly, in United States v.
Flores-Cordero, 

723 F.3d 1085

, 1087–88 (9th Cir. 2013) (as
amended), we held Arizona’s crime of resisting arrest was not
a crime of violence under Johnson because it reached conduct
such as a “minor scuffle” in which a defendant kicked at
officers who were attempting to place her in handcuffs. If the
level of force in Dominguez-Maroyoqui and Flores-Cordero
was not capable of causing physical pain or injury, then
neither is the snatching of a purse from a victim’s hand.

    At oral argument, the government contended the armed
robbery offense nonetheless satisfies the force clause because
it encompasses a willingness to inflict bodily injury on a
resisting victim if necessary. See Jones, 

283 N.E. 2d at 844

.
The Massachusetts cases do not require proof of a willingness
to use such force. But even if they did, the force clause
requires the actual, attempted or threatened use of physical
force, see 

18 U.S.C. § 924

(e)(2)(B)(i), not a mere
uncommunicated willingness or readiness to use such force.
A willingness to use violent force is not the same as a threat
to do so. The latter requires some outward expression or
indication of an intention to inflict pain, harm or punishment.
See Threat and Threaten, Webster’s Third New International
Dictionary 2382 (2002); Threat and Threaten, Am. Heritage
Dictionary of the English Language 1813 (5th ed. 2011);
                UNITED STATES V. PARNELL                     9

Threat, Black’s Law Dictionary (10th ed. 2014). The former
does not.

    For similar reasons, we are not persuaded a simple
snatching necessarily entails an implied threat to use violent
force to overcome a victim’s potential resistance. Although
some snatchers are prepared to use violent force to overcome
resistance, others are not. Notably, a defendant can be
convicted of robbery in Massachusetts even if the victim is
not placed in fear. See Jones, 

283 N.E.2d at 843

; Brown,

318 N.E.2d at 487

; 14A Mass. Prac., Summary of Basic Law
§ 7:217 (5th ed. 2015). If every robbery involved an implied
threat of violent force, every victim would be placed in fear.
This, obviously, is not the case under Massachusetts law.

     By its very nature, of course, armed robbery is a serious
and dangerous crime. The possession of a dangerous weapon
may indicate a robber’s willingness to use that weapon if
necessary to accomplish the criminal undertaking. See
Goldman, 

367 N.E.2d at 1182

. The mere fact an individual
is armed, however, does not mean he or she has used the
weapon, or threatened to use it, in any way. See United
States v. Werle, No. 14-30189, 

2016 WL 828132, at *5

 (9th
Cir. Mar. 3, 2016). As noted, the Massachusetts statute does
not require a weapon be used or displayed, or even that the
victim be aware of it. See King, 

665 F.3d at 253

; Goldman,
367 N.E.2d at1182. There is a material difference between
the presence of a weapon, which produces a risk of violent
force, and the actual or threatened use of such force. Only the
latter falls within ACCA’s force clause. Offenses presenting
only a risk of violence fall within ACCA’s residual clause,
see 

18 U.S.C. § 924

(e)(2)(B)(ii) (defining a violent felony to
include an offense that “otherwise involves conduct that
presents a serious potential risk of physical injury to
10              UNITED STATES V. PARNELL

another”), which, as the government concedes, does not apply
here. See Johnson v. United States, 

135 S. Ct. 2551, 2563

(2015) (holding the residual clause is unconstitutionally
vague and, hence, imposing an increased sentence under the
residual clause violates the Constitution’s guarantee of due
process). Nor can we presume an implied threat to use a
weapon from a defendant’s mere possession of it. As we
explained in Werle, 

2016 WL 828132, at *5

, “a defendant
could be convicted of felony riot if there was a knife in his
pocket or a gun within his reach but he did not use or threaten
to use physical force. This would not qualify as a crime of
violence under the ACCA.” The mere possession of a
weapon, therefore, does not bring Massachusetts’ armed
robbery statute within ACCA’s force clause.

    We acknowledge the First Circuit’s holding in United
States v. Luna, 

649 F.3d 91

 (1st Cir. 2011). Addressing the
same Massachusetts armed robbery statute at issue here, Luna
held the statute satisfied the force clause because the
defendant had “provided no reason for us to conclude that the
type of force involved in armed robbery is not ‘violent force
– that is, force capable of causing physical pain or injury,’
and we see no reason to do so.” 

Id.

 at 108–09 (citation
omitted) (quoting Johnson, 

559 U.S. at 140

). Luna, however,
does not carry significant persuasive weight. The court’s
discussion of the Johnson issue consists of only a single
sentence, provides no reasoning and makes no mention of the
Massachusetts case law deeming the degree of force
immaterial to a conviction for armed robbery.

    We are instead persuaded by the First Circuit’s more
thorough and well-reasoned analysis in United States v.
Castro-Vazquez, 

802 F.3d 28

 (1st Cir. 2015). The defendant
there had a prior conviction under Puerto Rico’s robbery
                UNITED STATES V. PARNELL                   11

statute, which criminalizes a person’s “unlawfully taking
personal property belonging to another in the immediate
presence of said person and against his/her will by means of
violence or intimidation.” 

Id. at 37

 (alteration omitted)
(quoting 

P.R. Laws Ann. tit. 33, § 4826

) (internal quotation
marks omitted). Assuming “violence is defined under Puerto
Rico law to include the slightest use of force,” the First
Circuit held “the prior offense would fall short of the . . .
requirement that the offense include an element of ‘physical
force,’ which is defined as ‘violent force – that is, force
capable of causing physical pain or injury to another
person.’” 

Id.

 Castro-Vazquez is analogous to this case and
persuasive. See also United States v. Dunlap, No. 1:14-CR-
00406-AA, 

2016 WL 591757, at *5

, ___ F. Supp. 3d ___, ___
(D. Or. Feb. 12, 2016) (holding a conviction for robbery
under Oregon Revised Statutes § 164.395(1), which “requires
only minimal force,” does not satisfy Johnson, 

559 U.S. 133

).

    In sum, because the degree of force required to commit
armed robbery in Massachusetts is immaterial so long as the
victim is aware of it, Massachusetts’ armed robbery statute
does not have “as an element the use, attempted use, or
threatened use of physical force against the person of
another.” 

18 U.S.C. § 924

(e)(2)(B)(i). Under the categorical
approach, therefore, a conviction under the Massachusetts
statute does not qualify as a violent felony under ACCA’s
force clause. The government does not argue Parnell’s
conviction falls under § 924(e)(2)(B)(ii) or that the modified
categorical approach applies. Accordingly, we hold Parnell’s
1990 armed robbery conviction does not qualify as a
predicate conviction for purposes of a sentencing
enhancement under ACCA.
12                 UNITED STATES V. PARNELL

    Given that neither this conviction nor Parnell’s 1989
conviction for assault and battery by dangerous weapon
qualifies as a violent felony, the district court erred by
sentencing Parnell as an armed career offender under
§ 924(e).5 We therefore vacate Parnell’s sentence and
remand for resentencing. Because we vacate Parnell’s
sentence on this ground, we need not address his contention
regarding the government’s improper argument at sentencing.

                          CONCLUSION

    For the reasons stated in a concurrently filed
memorandum disposition, we affirm Parnell’s conviction.
For the reasons stated here, we vacate Parnell’s sentence and
remand for resentencing.

  AFFIRMED IN PART; VACATED IN PART;
REMANDED.




  5
    Parnell argues, and the government does not dispute, that his 1989
conviction for assault and battery by dangerous weapon (ABDW), see
Mass. Gen. Laws Ann. ch. 265, § 15A, does not qualify as a violent
felony. Under Massachusetts law, an ABDW conviction may be
predicated on a reckless act causing physical or bodily injury to another.
See Commonwealth v. Burno, 

487 N.E.2d 1366

, 1368–69 (Mass. 1986);
see also United States v. Fish, 

758 F.3d 1, 10

 (1st Cir. 2014); United
States v. Hart, 

674 F.3d 33

, 41–43 & nn.7–8 (1st Cir. 2012). We have
held, however, that the ACCA’s force clause reaches only offenses
requiring the intentional use of force. See United States v. Dixon,

805 F.3d 1193, 1197

 (9th Cir. 2015); United States v. Lawrence, 

627 F.3d 1281, 1284

 (9th Cir. 2010). The district court therefore erred by relying
on Parnell’s ABDW conviction as an ACCA predicate.
                 UNITED STATES V. PARNELL                     13

WATFORD, Circuit Judge, concurring:

     I join the court’s opinion in full, although I confess I was
initially inclined to affirm the sentence. The notion that
robbery is not a “violent felony,” as that term is defined in the
Armed Career Criminal Act (ACCA), strikes me as
counterintuitive to say the least. Holding that armed robbery
doesn’t qualify as a violent felony seems even more absurd.
But, as the court’s opinion persuasively explains, that
conclusion is compelled by two oddities of Massachusetts
law.

    The first is that Massachusetts has abandoned the
traditional common-law definition of robbery. To distinguish
robbery from larceny, the common law required more than
just stealing property from the person of another. To commit
robbery, the defendant also had to use violence or
intimidation to coerce the victim into parting with his
property. See 3 Wayne R. LaFave, Substantive Criminal Law
§ 20.3, at 173, 181–89 (2d ed. 2003). In Massachusetts,
however, a defendant may be convicted of robbery without
using violence or intimidation of any sort.              See
Commonwealth v. Jones, 

283 N.E.2d 840

, 843–45 (Mass.
1972). It’s enough, for example, if the defendant sneaks up
behind the victim and snatches a purse from her hand without
so much as touching the victim or doing anything to put her
in fear beforehand. Commonwealth v. Brown, 

318 N.E.2d 486, 487

 (Mass. App. Ct. 1974).

    The second oddity is this: In Massachusetts, armed
robbery consists of robbery (as defined above) while in
possession of a dangerous weapon. The weapon need not
play any role in the offense, as is often required in other
States, and the victim need not even be aware of the weapon’s
14              UNITED STATES V. PARNELL

existence. See, e.g., Commonwealth v. Rogers, 

945 N.E.2d 295

, 301 n.6 (Mass. 2011); Commonwealth v. Goldman,

367 N.E.2d 1181, 1182

 (Mass. App. Ct. 1977). Thus, the
same purse-snatcher described above is guilty of armed
robbery under Massachusetts law so long as he has a gun
concealed on his person—even if the victim never learns of
the gun’s presence, and even if the gun plays no role in
facilitating the crime. So again, strange as it may seem, in
Massachusetts a defendant can be found guilty of armed
robbery without using or threatening to use any violence
whatsoever.

    The conduct encompassed by Massachusetts’ armed
robbery statute surely falls within the scope of the ACCA’s
so-called residual clause, 

18 U.S.C. § 924

(e)(2)(B)(ii). But
that clause is no longer valid. Johnson v. United States,

135 S. Ct. 2551

 (2015). To qualify now as a violent felony,
armed robbery must have as an element the use, attempted
use, or threatened use of violent physical force. 

18 U.S.C. § 924

(e)(2)(B)(i). That is not the case under Massachusetts
law, so Parnell’s prior armed robbery conviction cannot serve
as the basis for an enhanced sentence under the ACCA.