                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 24 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CHAUNCEY L. WILLIAMS,                           No.    17-35279

                Petitioner-Appellant,           D.C. Nos.    3:16-cv-05559-BHS
                                                             3:11-cr-05505-BHS-1
 v.

UNITED STATES OF AMERICA,                       MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Benjamin H. Settle, District Judge, Presiding

                    Argued and Submitted December 10, 2019
                              Seattle, Washington

Before: McKEOWN and CHRISTEN, Circuit Judges, and HARPOOL,** District
Judge.

      Chauncey Williams appeals the district court’s denial of his habeas petition

under 28 U.S.C. § 2255, in which he sought to vacate his 18 U.S.C.

§ 924(c)(1)(A)(ii) conviction for possession of a firearm in furtherance of a crime



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
of violence. The parties are familiar with the facts, so we need not repeat them

here. We have jurisdiction under 28 U.S.C. § 2253, and we deny the petition.

      We review de novo the denial of a § 2255 motion. United States v. Chacon-

Palomares, 208 F.3d 1157, 1158 (9th Cir. 2000). The burden is on Williams to

establish, by a preponderance of the evidence, that his “sentence was imposed in

violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a).

      Williams argues his conviction under 18 U.S.C. § 924(c) is unconstitutional

after Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated the

residual clause of the Armed Career Criminal Act as unconstitutionally vague.

Even assuming, without deciding, that Williams can overcome the procedural

hurdles implicated by United States v. Blackstone, 903 F.3d 1020, 1026-28

(9th Cir. 2018), Williams’s petition fails on its merits.

      The question is whether Williams’s armed postal robbery conviction under

18 U.S.C. § 2114(a) was categorized as a crime of violence under the residual

clause or the elements clause of § 924(c)(3). To assist in this inquiry, we apply a

modified categorical approach. “The modified categorical approach allows courts

to look beyond the statutory text to a limited set of documents to determine the

elements of the . . . offense of which the defendant was convicted when some

alternative elements of the . . . crime would match the federal, generic crime, and

other alternative elements would not.” Rendon v. Holder, 764 F.3d 1077, 1083 (9th


                                           2
Cir. 2014). We may apply the modified categorical approach only where a statute

has a divisible structure. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). A

statute is divisible when it contains “multiple, alternative elements of functionally

separate crimes,” as opposed to alternative means of committing the same crime.

Rendon, 764 F.3d at 1084-85. The divisibility of a statute can generally be

determined on its face. Mathis, 136 S. Ct. at 2256.

      The parties agree § 2114(a) is divisible into a standard offense and an

aggravated offense under Mathis. We conclude the aggravated offense of §

2114(a) is further divisible into three specific aggravated offenses: wounding a

person having custody of United States mail, money, or other property of the

United States; placing that person’s life in jeopardy by use of a dangerous weapon;

and committing the crime after a prior

§ 2114(a) conviction. 18 U.S.C. § 2114(a).

      Because the statute is divisible, we turn to the Shepard documents to

determine the specific offense of Williams’s conviction. See generally United

States v. Shelby, 939 F.3d 975, 980 (9th Cir. 2019). The jury instructions make

clear Williams was convicted under the “life in jeopardy” subclause because

“while committing the robbery, [Williams] jeopardized the life of the person

described in the indictment by using a dangerous weapon.”

      We next consider whether that subclause qualifies as a crime of violence


                                          3
under the elements clause of § 924(c)(3). Under the elements clause, a “crime of

violence” is defined as a felony that “has as an element the use, attempted use, or

threatened use of physical force against the person or property of another.” 18

U.S.C. § 924(c)(3)(A).

      Physical force, as it appears in the similarly-worded elements clause of the

Armed Career Criminal Act, means “violent physical force—‘that is, force capable

of causing physical pain or injury to another person.’” United States v. Gutierrez,

876 F.3d 1254, 1256 (9th Cir. 2017) (quoting Curtis Johnson v. United States, 559

U.S. 133, 140 (2010)). The force required for common law robbery meets this

definition. Stokeling v. United States, 139 S. Ct. 544, 551 (2019). At common law,

“[i]f an act physically overcame a victim’s resistance, ‘however slight’ that

resistance might be, it necessarily constituted violence,” and hence amounted to

robbery. Id. at 550 (citation omitted).

      Armed postal robbery as committed under the life in jeopardy subclause is a

crime of violence. The subclause expressly requires the use of a dangerous weapon

that “puts [the victim’s] life in jeopardy.” § 2114(a). We have recognized that

“[p]utting life in jeopardy . . . requires a holdup involving the use of a dangerous

weapon actually so used during the robbery that the life of the person being robbed

is placed in an objective state of danger.” United States v. Coulter, 474 F.2d 1004,

1005 (9th Cir. 1973) (internal quotation omitted). Using a firearm or other deadly


                                          4
weapon to place a victim’s life in danger during a robbery involves a threatened

use of physical force within the meaning of Curtis Johnson.

      Because Williams’s conviction under § 2114(a) constitutes a crime of

violence under the elements clause of § 924(c)(3), both Johnson and United States

v. Davis, 139 S. Ct. 2319 (2019), are inapplicable to Williams’s conviction and do

not provide a remedy.

      PETITION DENIED.




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