US v. Jamaal Evan

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:15-cr-00057-H-1. [1000015606]. [16-4094]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4094

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMAAL EUGENE EVANS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Malcolm J. Howard,
Senior District Judge. (5:15-cr-00057-H-1)

Argued:

December 9, 2016

Decided:

February 2, 2017

Before TRAXLER, SHEDD, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Traxler and Judge Shedd joined.

ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.
Phillip
Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
ON BRIEF: Thomas P. McNamara,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant.
John Stuart Bruce,
United States Attorney, Jennifer P. May-Parker, Kristine L.
Fritz, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider the familiar question whether a
particular offense constitutes a “crime of violence” within the
meaning

of

18

U.S.C.

§ 924(c).

Under

the

terms

of

Section

924(c), a person convicted of a qualifying crime of violence in
which

a

firearm

is

discharged

is

subject

to

a

consecutive,

mandatory sentence of not less than 10 years’ imprisonment.

18

U.S.C. § 924(c)(1)(A)(iii).
The crime that we presently examine is the federal offense
of carjacking, in violation 18 U.S.C. § 2119 (the carjacking
statute).

The

subject

a

to

district

consecutive

court
term

held
of

that

the

imprisonment

defendant
under

was

Section

924(c), because his conviction under the carjacking statute was
categorically a crime of violence.

Upon our review, we agree

with the district court that the carjacking statute qualifies as
a crime of violence under Section 924(c), because the carjacking
statute “has as an element the use, attempted use, or threatened
use

of

another.”

physical

force

against

the

18 U.S.C. § 924(c)(3)(A).

person

or

property

of

Accordingly, we affirm the

district court’s judgment.
I.
In July 2013, defendant Jamaal Evans was a passenger in a
car owned and driven by his friend, Amani Duke.

2

During the

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course of the outing, Evans asked Duke to drive into a vacant
parking lot, purportedly to meet Evans’ cousin.

In the parking

lot, Evans brandished a pistol, and ordered Duke out of the car.
Evans attempted to steal Duke’s wallet and shot Duke in each
leg.

Immediately thereafter, Evans drove away in Duke’s car.

After Evans departed, Duke crawled to a nearby road where he
ultimately

received

assistance,

and

was

transported

to

a

hospital for emergency medical treatment.
A

federal

grand

jury

charged

Evans

with

carjacking

resulting in serious bodily injury, in violation of 18 U.S.C.
§ 2119(2),

and

using

a

carjacking,

a

crime

of

924(c)(1)(A).

firearm

during

violence,

in

and

in

relation

violation

of

to

a

Section

The indictment also included two counts of Hobbs

Act robbery, in violation of 18 U.S.C. § 1951(b), and two counts
of using a firearm during and in relation to Hobbs Act robbery,
in violation of Section 924(c)(1)(A).
Evans

filed

a

motion

to

dismiss

under

Federal

Rule

of

Criminal Procedure 12(b)(3)(B), arguing that the three counts in
the indictment alleging violations of Section 924(c)(1)(A) did
not state an offense because neither Hobbs Act robbery nor the
carjacking statute qualified as “crimes of violence” within the
meaning of Section 924(c).

After a hearing, the district court

denied the motion, ruling that Hobbs Act robbery and federal

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carjacking both categorically qualified as crimes of violence
for purposes of Section 924(c).
After the district court denied Evans’ motion to dismiss,
Evans and the government entered into a plea agreement.

Evans

agreed to plead guilty to one count of Hobbs Act robbery, one
count under the carjacking statute, and one count of discharging
a firearm during a carjacking, in exchange for the government
dismissing

the

other

three

counts.

The

plea

agreement

also

preserved Evans’ right to appeal the district court’s ruling
that the federal offense of carjacking qualified as a crime of
violence under Section 924(c).
The
sentenced

district
him

imprisonment

on

to

court
serve

the

accepted

Evans’

concurrent

robbery

and

guilty

sentences

carjacking

of

plea,
96

counts,

and

months’
and

120

months’ imprisonment under Section 924(c), to run consecutively
with the other two offenses, for a total term of 216 months’
imprisonment.
judgment

solely

Evans
with

now

appeals

respect

to

from
his

the

district

conviction

and

court’s
sentence

imposed under Section 924(c). 1

1

Evans does not appeal his convictions or sentences for the
Hobbs Act robbery and the carjacking offenses.
4

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II.
Although Evans was convicted under subsection (2) of the
carjacking statute because he caused bodily injury to Duke, we
consider on appeal the more general offense described in the
carjacking statute that does not require conduct resulting in
serious

bodily

injury.

See

18

U.S.C.

§ 2119(1).

If

that

lesser-included crime qualifies as a crime of violence within
the meaning of Section 924(c), then the aggravated offense under
subsection

(2)

of

the

carjacking

qualifies as a crime of violence.

statute

necessarily

also

See United States v. McNeal,

818 F.3d 141, 157 (4th Cir. 2016).

Thus, the sole issue that

we consider here is whether carjacking punishable under Section
2119(1) qualifies as a crime of violence within the meaning of
Section

924(c).

To

make

that

determination,

we

examine

the

definition of crime of violence set forth in Section 924(c)(3),
and compare that definition to the elements of the carjacking
statute.
A.
Section 924(c) prescribes criminal penalties for anyone who
discharges a firearm “during and in relation to any crime of
violence.”

18 U.S.C. § 924(c)(1)(A)(iii).

The determination

whether a particular criminal offense qualifies as a crime of
violence under Section 924(c) presents a legal question, which
we review de novo.

McNeal, 818 F.3d at 151.
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Section 924(c)(3) defines “crime of violence” as any felony
that either:
(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.
18 U.S.C. § 924(c)(3).
subparagraph
consider
qualifies

(A),

whether
as

a

Thus, we look first to the language of

commonly
a

known

conviction

crime

statutory definition. 2

of

as

the

under

violence

“force

the

under

clause,”

carjacking

that

portion

to

statute
of

the

See United States v. Fuertes, 805 F.3d

485, 498 (4th Cir. 2015).
As used in subparagraph (A), the statutory phrase “physical
force” requires the use of “violent force,” which necessarily
“connotes a substantial degree of force.”

See Johnson v. United

States, 559 U.S. 133, 140 (2010) (interpreting the definition of
“violent

felony”

in

the

force

clause

of

the

Armed

Career

Criminal Act (ACCA)); Leocal v. Ashcroft, 543 U.S. 1, 11 (2004)
(interpreting the definition of crime of violence in 18 U.S.C.
§ 16 as suggesting “a category of violent, active crimes”).
2

In

Because we hold that federal carjacking qualifies as a
crime of violence under the force clause, we need not decide in
this case whether subparagraph (B) remains valid in light of the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct.
2551 (2015).
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order

to

force

employed

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qualify

as

must

“violent
be

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physical

“capable

injury to another person.”

of

force,”

causing

the

degree

physical

pain

of
or

Johnson, 559 U.S. at 140; see also

United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016).
Because the force clause of Section 924(c)(3) encompasses
only crimes that have “as an element the use, attempted use, or
threatened
(emphasis

use

of

physical

added),

we

apply

force,”
the

18

U.S.C.

§ 924(c)(3)(A)

elements-based

categorical

approach articulated by the Supreme Court to decide whether the
carjacking

statute

satisfies

this

statutory

definition.

Descamps v. United States, 133 S. Ct. 2276, 2283 (2013).

See
Under

the categorical approach, we analyze only the elements of the
offense in question, rather than the specific means by which the
defendant committed the crime.

United States v. Price, 777 F.3d

700, 704–05 (4th Cir. 2015).

Accordingly, we must determine

whether

crimes

committed

under

the

carjacking

statute

necessarily require the use, attempted use, or threatened use of
violent physical force.

See 18 U.S.C. § 924(c)(3)(A); Gardner,

823 F.3d at 803.
B.
We turn to consider the language of the carjacking statute,
which provides that:
Whoever, with the intent to cause death or serious
bodily harm[,] takes a motor vehicle that has been
transported, shipped, or received in interstate or
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foreign commerce from the person or presence of
another by force and violence or by intimidation, or
attempts to do so, shall—
(1) be fined under this title or imprisoned not
more than 15 years, or both,
(2) if serious bodily injury . . . results, be
fined under this title or imprisoned not more
than 25 years, or both, and
(3) if death results, be fined under this title
or imprisoned for any number of years up to life,
or both, or sentenced to death. 3
18 U.S.C. § 2119.
Evans contends that because this offense can be committed
“by intimidation,” the offense does not necessarily include as
an element “the use, attempted use, or threatened use of force”
required

by

Section

924(c)(3).

Evans

argues

that

the

term

“intimidation” commonly is defined as “putting in fear of bodily
harm,” which would include a threat to poison another.

Thus,

relying on our decision in United States v. Torres-Miguel, 701
F.3d 165 (4th Cir. 2012), Evans argues that a defendant may be
convicted under the carjacking statute for taking a vehicle by
threatening to poison another, without the “use, attempted use,
or threatened use of violent physical force.”

3

Section 2119 establishes three separate carjacking
offenses in its three subsections. See Jones v. United States,
526 U.S. 227, 235–36, 252 (1999). However, because our analysis
focuses on the element of using “force and violence” or
“intimidation,” which element is common to all three versions of
the crime, our conclusions apply equally to all three carjacking
offenses.
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In

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response,

the

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government

argues

that

the

term

“intimidation,” as used in the statutory phrase “by force and
violence or by intimidation,” denotes a threat to use violent
force.

Therefore, in the government’s view, the employment of

intimidation

to

commit

the

federal

crime

of

carjacking

is

encompassed within the “use, attempted use, or threatened use of
physical

force”

commission

of

a

required
crime

under

of

Section

violence.

924(c)(3)(A)

We

agree

with

for
the

government’s interpretation of the statute.
Our analysis whether the federal crime of carjacking is a
crime of violence for purposes of Section 924(c) is governed
directly by our recent decision in McNeal, 818 F.3d 141.

There,

we considered the question whether the federal crime of bank
robbery was a “crime of violence” as defined by the force clause
of

Section

punishment

924(c)(3),
under

thereby

Section

subjecting

924(c)

commission of bank robbery.

for

using

the
a

defendant

firearm

in

to
the

See id. at 151–57.

The bank robbery statute at issue in McNeal contained the
required
force

and

element

that

violence,

or

the
by

property

in

question

intimidation.”

18

be

taken

U.S.C.

“by

§ 2113.

This phrase in the federal bank robbery statute is substantively
identical
consider

to

the

here.

specific
Compare

phrase
18

in

U.S.C.

Section
§ 2113

2119

(“by

that

force

we
and

violence, or by intimidation”), with id. § 2119 (“by force and
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violence or by intimidation”).

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We held in McNeal that the term

“intimidation,” as used in the federal bank robbery statute,
required

the

therefore,
qualified

threatened

use

of

physical

federal

crime

of

bank

the
as

a

crime

Section 924(c)(3).

of

violence

force,

robbery

under

the

and

that,

categorically

force

clause

of

McNeal, 818 F.3d at 153; see also United

States v. Wagstaff, 865 F.2d 626, 627 (4th Cir. 1989) (defining
“intimidation”

to

require

“a

threat

of

bodily

on

the

harm

from

the

defendant’s acts”) (citation omitted).
Our

decision

in

holdings employed

by

McNeal
two

of

relied
our

sister

“straightforward”

circuits,

which

have

concluded that the crime of carjacking under Section 2119 is a
crime

of

violence.

McNeal,

818

F.3d

at

153

(citing

United

States v. Moore, 43 F.3d 568, 572–73 (11th Cir. 1994); United
States v. Mohammed, 27 F.3d 815, 819 (2d Cir. 1994)).

In Moore,

the Eleventh Circuit held that “carjacking is always and without
exception a crime of violence,” 43 F.3d at 573, and in Mohammed,
the Second Circuit held that “it is clear that a violation of
. . . the carjacking statute[] is a crime of violence,” 27 F.3d
at 819.
We

are

not

aware

of

any

case

in

which

a

court

has

interpreted the term “intimidation” in the carjacking statute as
meaning anything other than a threat of violent force.

See,

e.g., In re Smith, 829 F.3d 1276, 1280 (11th Cir. 2016) (holding
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that

“intimidation”

necessarily
Nor

Filed: 02/02/2017

do

we

statute
different

means

the

threatened

discern

for

in

any

viewing

meaning

of

in

term

our

identical term in McNeal.

federal

use

basis

the

from

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carjacking

violent

the

text

physical

of

the

“intimidation”

construction

of

statute

carjacking

as

the

force).

having

a

substantively

The act of taking a motor vehicle “by

force and violence” requires the use of violent physical force,
and the act of taking a motor vehicle “by intimidation” requires
the threatened use of such force.

See Smith, 829 F.3d at 1280.

Our conclusion is not altered by our decision in TorresMiguel.

There, we observed that “a crime may result in death or

serious injury without involving use of physical force,” and
held that the California statute at issue was therefore not a
“crime of violence.”
statute

at

issue

701 F.3d at 168-69.

in

Torres-Miguel,

the

However, unlike the
carjacking

statute

includes the statutory element of “by force and violence or by
intimidation.”
term

18 U.S.C. § 2119.

“intimidation”

violent force.

used

in

this

And, as we have held, the
context

See McNeal, 818 F.3d at 156.

means

a

threat

of

We therefore hold

that the term “intimidation,” as used in the phrase “by force
and

violence

necessarily

or

by

includes

intimidation”
a

threat

11

of

in

the

violent

carjacking
force

statute,

within

the

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meaning of the “force clause” of Section 924(c)(3). 4
818

F.3d

at

153;

see

also

Wagstaff,

865

See McNeal,

F.2d

at

628.

Accordingly, Evans’ crime of conviction, carjacking resulting in
bodily injury in violation of Section 2119(2), is categorically
a crime of violence under the force clause of Section 924(c)(3),
and we affirm his conviction and sentence under Section 924(c).
III.
For these reasons, we affirm the district court’s judgment.

AFFIRMED

4

We disagree with Evans’ contention that we should not
follow our reasoning in McNeal because that analysis relies on
out-of-circuit cases predating the Supreme Court’s 2010 opinion
in Johnson, which limited the definition of “violent force” in
ACCA’s force clause to violent physical force. See Johnson, 559
U.S. at 140. We observe that the Eleventh Circuit recently has
reiterated that its holding in Moore remains valid after
Johnson, and that carjacking in violation of 18 U.S.C. § 2119
qualifies as a crime of violence under the force clause.
See
Smith, 829 F.3d at 1280 (citing Moore, 43 F.3d at 572–73). The
Sixth Circuit, Eighth Circuit, and Eleventh Circuit also have
followed our reasoning in McNeal, concluding that federal bank
robbery qualifies as a “crime of violence.”
Holder v. United
States, 836 F.3d 891, 892 (8th Cir. 2016) (force clause of
§ 924(c)(3)(A)); In re Sams, 830 F.3d 1234, 1239 (11th Cir.
2016) (force clause of § 924(c)(3)(A)); United States v.
McBride, 826 F.3d 293, 296 (6th Cir. 2016) (force clause of
career offender guideline at U.S.S.G. § 4B1.2).
12