                       FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                      No. 17-35446
           Plaintiff-Appellee,
                                                 D.C. Nos.
                  v.                       9:16-cv-00082-DWM
                                           9:13-cr-00017-DWM
 MICHAEL SCOTT BURKE,
        Defendant-Appellant.                      OPINION

         Appeal from the United States District Court
                 for the District of Montana
         Donald W. Molloy, District Judge, Presiding

                  Submitted October 22, 2019 *
                      Portland, Oregon

                       Filed December 2, 2019

          Before: Jerome Farris, Carlos T. Bea, and
              Morgan Christen, Circuit Judges.

                       Opinion by Judge Bea




    *
      The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                   UNITED STATES V. BURKE

                          SUMMARY **


                         28 U.S.C. § 2255

    Affirming the district court’s denial of a 28 U.S.C.
§ 2255 motion challenging the validity of a conviction for
use of a firearm during a crime of violence in violation of
18 U.S.C. § 924(c)(1)(A), the panel held that armed robbery
involving controlled substances described in 18 U.S.C.
§ 2118(c)(1) is a crime of violence under 18 U.S.C.
§ 924(c)(3)(A).


                            COUNSEL

Anthony R. Gallagher, Federal Defender; David F. Ness,
Assistant Federal Defender; Federal Defenders of Montana,
Great Falls, Montana; for Defendant-Appellant.

Kurt G. Alme, United States Attorney; Timothy A. Tatarka,
Assistant United States Attorney; United States Attorney’s
Office, Billings, Montana; for Plaintiff-Appellee.




    **
       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. BURKE                      3

                         OPINION

BEA, Circuit Judge:

    The sole question presented by this appeal is whether the
offense of armed robbery involving controlled substances
described in 18 U.S.C. § 2118(c)(1) is a crime of violence
under 18 U.S.C. § 924(c)(3)(A). We hold that it is.

    The facts underlying this case are straightforward and
not in dispute. Michael Burke walked into a Walgreen’s
Pharmacy, pointed a gun at an employee, and demanded all
of the pharmacy’s OxyContin. The employee complied, and
Burke left the pharmacy with close to 900 pills. A
responding officer later spotted Burke in a vehicle, at which
point Burke led the police on a high-speed chase, eventually
abandoned his car, and fled on foot. Hours later, police
caught up with Burke and arrested him.

    The government charged Burke with two counts:
(1) armed robbery involving controlled substances, in
violation of 18 U.S.C. § 2118(c)(1); and (2) use of a firearm
during a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A). Burke pleaded guilty to both offenses. The
district court sentenced Burke to consecutive terms of
37 months on Count One and 84 months on Count Two, to
be followed by concurrent five-year terms of supervised
release.

    Burke did not directly appeal his sentence, but later filed
a motion challenging the validity of his § 924(c)(1)(A)
conviction under 28 U.S.C. § 2255. Burke argued that his
conviction for use of a firearm during a crime of violence is
unlawful because the predicate offense for that charge—
armed robbery involving controlled substances—no longer
qualifies as a crime of violence. The district court denied
4                UNITED STATES V. BURKE

relief but granted a certificate of appealability. On appeal,
the government does not raise any procedural barriers to our
consideration of Burke’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 § 924(c)(3) as an 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.

Subparagraph (A) is known as the “elements clause,” while
subparagraph (B) is known as the “residual clause.”
Although the Supreme Court recently declared the residual
clause unconstitutionally vague, see United States v. Davis,
139 S. Ct. 2319, 2336 (2019), that is of no consequence to
this appeal because robbery involving controlled substances
under 18 U.S.C. § 2118(c)(1) is a crime of violence under
the elements clause.

    The Supreme Court has held that to qualify as a “crime
of violence” under the elements clause, the offense must
have as an element the use, attempted use, or threatened use
of “violent [physical] force—that is, force capable of causing
physical pain or injury to another person.” Johnson v.
                 UNITED STATES V. BURKE                   5

United States, 559 U.S. 133, 140 (2010); Davis, 139 S. Ct.
at 2325–26 (applying Johnson to § 924(c)). The question
thus is whether the offense defined in the robbery involving
controlled substances statute meets that standard. Under the
categorical approach used to make that determination, see
Mathis v. United States, 136 S. Ct. 2243, 2248 (2016), the
more specific question is whether the least serious form of
the offense meets the Johnson standard, see Moncrieffe v.
Holder, 569 U.S. 184, 190–91 (2013). If it does, robbery
involving controlled substances qualifies categorically as a
crime of violence.

   The federal robbery involving controlled substances
provision provides, in relevant part:

       Whoever takes or attempts to take from the
       person or presence of another by force or
       violence or by intimidation any material or
       compound containing any quantity of a
       controlled substance belonging to or in the
       care, custody, control, or possession of a
       person registered with the Drug Enforcement
       Administration under section 302 of the
       Controlled Substances Act (21 U.S.C. 822)
       shall [be punished according to law].

18 U.S.C. § 2118(a). Burke argues that robbery involving
controlled substances “by force or violence or by
intimidation” does not constitute a crime of violence.
Although such robbery “by force or violence” would
undoubtedly constitute a crime of violence, Burke argues
that the least violent form of the offense—robbery involving
controlled substances through mere “intimidation”—does
not meet the requirements for a crime of violence.
6                UNITED STATES V. BURKE

    Burke contends that robbery involving controlled
substances by intimidation does not necessarily require the
use or threatened use of violent force against another as
required under Johnson. But we have addressed this precise
assertion twice before and rejected it both times. First, in
United States v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir.
2017), we held that carjacking under 18 U.S.C. § 2119—
which is a parallel provision to § 2118(a) and has an element
that the defendant committed the crime “by force and
violence or by intimidation”—was a crime of violence under
§ 924(c)(3)(A)’s elements clause. Gutierrez held that
carjacking by “intimidation,” as the least violent form of the
offense, necessarily requires that the defendant take the
property “in such a way that would put an ordinary,
reasonable person in fear of bodily harm” and that a
“defendant cannot put a reasonable person in fear of bodily
harm without threatening to use force capable of causing
physical pain or injury.” Id. at 1257 (citation and internal
quotation marks omitted). Carjacking by intimidation thus
involves the requisite “threatened use of violent physical
force” that qualifies the offense as a crime of violence under
§ 924(c)(3)(A)’s elements clause. Id.

    Next, in United States v. Watson, 881 F.3d 782, 785–86
(9th Cir. 2018), we applied Gutierrez’s logic to hold that
bank robbery under 18 U.S.C. § 2113(a)—which is again a
parallel provision to § 2118(a) and has a “force and violence,
or by intimidation” element—was a crime of violence under
§ 924(c)(3)(A)’s elements clause. Watson held that just like
carjacking by intimidation in Gutierrez, bank robbery by
intimidation under § 2113(a), as the least violent form of the
offense, necessarily “requires at least an implicit threat” to
use violent physical force and thus involves the requisite
“threatened use of violent physical force” to qualify the
                 UNITED STATES V. BURKE                    7

offense as a crime of violence under § 924(c)(3)(A)’s
elements clause. Id. at 785.

    There is simply no room to find robbery involving
controlled substances under § 2118(a) is anything but a
crime of violence under § 924(c)(3)(A)’s elements clause
following Gutierrez and Watson’s binding precedent. The
least violent form of each offense is the taking of something
(money, a motor vehicle, or controlled substances) by
intimidation, which under Gutierrez and Watson
“necessarily entails” at a minimum the “threatened use of
violent physical force” to qualify the offenses as crimes of
violence under § 924(c)(3)(A)’s elements clause. Gutierrez,
876 F.3d at 1257; Watson, 881 F.3d at 785.

    Because robbery involving controlled substances “by
force or violence or by intimidation” is a crime of violence,
so too is armed robbery involving controlled substances,
which requires proof of all the elements of unarmed robbery
involving controlled substances.           See 18 U.S.C.
§ 2118(c)(1).      Armed robbery involving controlled
substances under § 2118(c)(1) thus cannot be based on
conduct that involves less force than unarmed robbery
involving controlled substances. For these reasons, armed
robbery involving controlled substances under § 2118(c)(1)
qualifies as a crime of violence under § 924(c)(3)(A).

   AFFIRMED.
