                       FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                      No. 17-35970
          Plaintiff-Appellee,
                                                 D.C. Nos.
                  v.                       4:16-cv-00075-BMM
                                          4:14-cr-00063-BMM-1
 KYLE JOEANIEL GOBERT,
        Defendant-Appellant.                      OPINION

         Appeal from the United States District Court
                 for the District of Montana
          Brian M. Morris, District Judge, Presiding

                  Submitted October 22, 2019 *
                      Portland, Oregon

                       Filed November 26, 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. GOBERT

                          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
discharging a firearm during a crime of violence in violation
of 18 U.S.C. § 924(c)(1)(A), the panel held that assault with
a dangerous weapon described in 18 U.S.C. § 113(a)(3) is a
crime of violence under 18 U.S.C. § 924(c)(3)(A).


                            COUNSEL

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

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


                            OPINION

BEA, Circuit Judge:

    The sole question presented by this appeal is whether the
offense of assault with a dangerous weapon described in



    **
       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. GOBERT                            3

18 U.S.C. § 113(a)(3) 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. Kyle Joeaniel Gobert was driving around
Blackfeet Indian Reservation with two friends, drinking and
using methamphetamine. The trio passed a parked truck
occupied by a group of males. The parked truck’s lights
flashed, which prompted Gobert to turn around and return to
the truck. Gobert parked his car and got out to relieve
himself, at which point the group of males began yelling
threats at Gobert and one of his companions. Feeling
threatened, Gobert went to the back of his car, gave verbal
commands to the male group to back up, retrieved an AR-15
from his trunk, and fired several shots in the males’
direction. Several bullets hit the truck, one shattered the
back windshield, another struck a truck occupant in the foot.
Gobert later admitted to law enforcement that he fired the
AR-15.

    The government charged Gobert with three counts:
(1) assault resulting in serious bodily injury, in violation of
18 U.S.C. §§ 1153(a) 1 and 113(a)(6); (2) assault with a
dangerous weapon, in violation of 18 U.S.C. §§ 1153(a) and
113(a)(3); and (3) discharge of a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A). Gobert
pleaded guilty to Count Three, in exchange for which the
government moved to dismiss Counts One and Two. In

    1
      Section 1153(a) provides that “[a]ny Indian who commits” certain
offenses within the Indian country is “subject to the same law and
penalties as all other persons committing any of the [enumerated]
offenses, within the exclusive jurisdiction of the United States.” Felony
assault under 18 U.S.C. § 113 is specifically enumerated, meaning that
§ 1153(a) provides a mechanism to prosecute Gobert for felony assault.
Section 1153(a) is irrelevant to this appeal.
4                UNITED STATES V. GOBERT

pleading guilty to Count Three, Gobert admitted to the
commission of both assault offenses identified in Counts
One and Two, which served as the predicate offenses for
Count Three. As requested, the district court dismissed
Counts One and Two. As to Count Three, the district court
sentenced Gobert to a term of 60 months in prison, to be
followed by a three-year term of supervised release.

    Gobert 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. Gobert argued that his
conviction for discharge of a firearm during a crime of
violence is unlawful because the predicate offenses for that
charge—the assault offenses identified in Counts One and
Two—no longer qualify as crimes of violence. The district
court denied relief but granted a certificate of appealability.
On appeal, the government does not raise any procedural
barriers to our consideration of Gobert’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.
                    UNITED STATES V. GOBERT                              5

    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 assault with a dangerous weapon under
18 U.S.C. § 113(a)(3) is a crime of violence under the
elements clause. 2

    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, 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 assault with a
dangerous weapon 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, assault with
a dangerous weapon qualifies categorically as a crime of
violence.

   The federal assault with a dangerous weapon statute
provides, in relevant part:


    2
      Both Counts One and Two served as predicate crimes of violence
for Gobert’s § 924(c) conviction. In turn, his § 924(c) conviction is
lawful so long as either the offense identified in Count One or the offense
identified in Count Two qualifies as a crime of violence. Here we
conclude that assault with a dangerous weapon as identified in Count
Two qualifies as a crime of violence.
6                   UNITED STATES V. GOBERT

         Whoever . . . is guilty of . . . [a]ssault with a
         dangerous weapon, with intent to do bodily
         harm [shall be punished according to law].

18 U.S.C. § 113(a)(3). Gobert argues that “[a]ssault with a
dangerous weapon” does not constitute a crime of violence.
Specifically, Gobert contends that the least violent form of
such an assault offense would be the mere intentional use of
a display of force that reasonably causes a victim to fear
immediate bodily injury.

    Gobert contends that using a display of force with a
dangerous weapon that reasonably causes a victim to fear
immediate bodily injury 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. Juvenile Female, 566 F.3d 943, 948 (9th Cir. 2009), we
held that assault with a dangerous weapon under a statute
worded similarly to § 113(a)(3) 3 was a crime of violence
under the elements clause of 18 U.S.C. § 16(a), which is
identical to § 924(c)(3)(A)’s elements clause. We there held
that a defendant charged with “assault with a deadly or a
dangerous weapon, must have always threatened the use of
physical force.” Id. at 948 (emphasis added) (quotation
marks and brackets omitted).

   Next, in United States v. Calvillo-Palacios, 860 F.3d
1285, 1289–93 (9th Cir. 2017), we held that a Texas statute
penalizing intentionally and knowingly threatening another

    3
     Compare 18 U.S.C. § 111(b) (providing a penalty enhancement for
an assault involving “a deadly or dangerous weapon” or resulting in
“bodily injury”), with 18 U.S.C. § 113(a)(3) (proscribing “[a]ssault with
a dangerous weapon, with intent to do bodily harm”).
                 UNITED STATES V. GOBERT                     7

with imminent bodily injury with the use of a deadly weapon
during the commission of an assault was a crime of violence
under the elements clause of Federal Sentencing Guidelines
§ 2L1.2(b)(1)(A)(ii), which again is identical to
§ 924(c)(3)(A)’s elements clause. Calvillo-Palacios stated
in no uncertain terms that “threat and assault statutes
necessarily involve” the requisite threat or use of physical
force to constitute a crime of violence under an elements
clause identical to the one at issue in this case. Id. at 1290
(emphasis added).

    There is simply no room to find assault with a dangerous
weapon under § 113(a)(3) anything but a crime of violence
under § 924(c)(3)(A)’s elements clause following Juvenile
Female and Calvillo-Palacios’s binding precedent. The
least violent form of each offense is the threat to use violent
physical force through the use of a dangerous weapon that
reasonably caused a victim to fear immediate bodily injury,
which under Juvenile Female and Calvillo-Palacios
necessarily entails at least the “threatened use of violent
physical force” to qualify the offenses as crimes of violence
under § 924(c)(3)(A)’s elements clause. See Calvillo-
Palacios, 860 F.3d at 1290; Juvenile Female, 566 F.3d
at 948.

   AFFIRMED.
