                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                  No. 17-56002
          Plaintiff-Appellee,
                                             D.C. Nos.
                v.                      3:16-cv-01558-DMS
                                       3:93-cr-00351-DMS-1
 MARIO DENANE FULTZ,
       Defendant-Appellant.
                                              OPINION

        Appeal from the United States District Court
          for the Southern District of California
         Dana M. Sabraw, District Judge Presiding

          Argued and Submitted February 6, 2019
                   Pasadena, California

                      Filed May 10, 2019

  Before: Ronald M. Gould and Jacqueline H. Nguyen,
 Circuit Judges, and Algenon L. Marbley, * District Judge.

                  Opinion by Judge Marbley



    *
      Honorable Algenon L. Marbley, District Judge for the United
States District Court for the Southern District of Ohio, sitting by
designation.
2                   UNITED STATES V. FULTZ

                          SUMMARY **


                         28 U.S.C. § 2255

    The panel affirmed the district court’s denial of Mario
Fultz’s motion under 28 U.S.C. § 2255 in which he argued
that his sentence was improperly enhanced under 18 U.S.C.
§ 924(c)(1) on the ground that his underlying offense,
Robbery on a Government Reservation in violation of
18 U.S.C. § 2111, was a “crime of violence” under 18 U.S.C.
§ 924(c)(3).

    The panel held that § 2111 Robbery, even if done by
“intimidation” alone, is categorically a “crime of violence”
under the elements clause of § 924(c)(3)(A).


                            COUNSEL

Kara Hartzler (argued), Federal Defenders of San Diego
Inc., San Diego, California, for Defendant-Appellant.

Helen H. Hong (argued), Chief, Appellate Section; Adam L.
Braverman, United States Attorney; United States
Attorney’s Office, San Diego, California; 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. FULTZ                     3

                         OPINION

MARBLEY, District Judge:

    In 2016, the Supreme Court decided Johnson v. United
States (Johnson II), 135 S. Ct. 2551. In Johnson II, the Court
invalidated the “residual clause” of the Armed Career
Criminal Act (“ACCA”)—18 U.S.C. § 924(e)(2)(B)(ii)—as
void for vagueness. Following Johnson II, Defendant-
Appellant Mario Fultz filed a second or successive motion
to vacate his sentence under 28 U.S.C. § 2255. Fultz argues
that his sentence was improperly enhanced under
§ 924(c)(1). First, he argues that, because the underlying
offense, robbery, was not a “crime of violence” under the
elements clause of § 924(c)(3)(A), his sentence was
enhanced pursuant to the residual clause of § 924(c)(3)(B).
Second, he argues that his sentence enhancement under the
residual clause is unconstitutional after Johnson II. The
district court denied Fultz’s § 2255 motion but issued a
certificate of appealability, allowing Fultz to appeal its
denial order. This appeal was timely filed.

    Between the time this appeal was filed and the time this
court began consideration of this case, the Supreme Court
granted certiorari in United States v. Davis, 18-431, which
was argued April 17, 2019. Davis will address the question
of whether the residual clause of §924(c)(3) is
unconstitutional. In the interim, this court heard argument on
the first certified question: whether the crime of which Fultz
was convicted, robbery in violation of 18 U.S.C. § 2111, is
a crime of violence under the elements clause.

    We conclude that § 2111 Robbery is a “crime of
violence” under the elements clause. Fultz conceded that, if
his conviction under § 2111 also satisfies the elements
clause of § 924(c)(3)(A), he would be unable to obtain relief
4                UNITED STATES V. FULTZ

under Johnson II. Accordingly, the district court is
AFFIRMED.

                        Background

    The facts of this case are not in dispute. In August 1992
and January 1993, Defendant-Appellant Mario Fultz robbed
an exchange on Camp Pendleton Military Base, near San
Diego, California. Mr. Fultz was charged with two counts of
Robbery on a Government Reservation, in violation of 18
U.S.C. § 2111, and two counts of Using and Carrying a
Firearm During and in Relation to a Crime of Violence, in
violation of 18 U.S.C. § 924(c)(1). In total, Fultz stole
approximately $123,500. In 1994, after a jury trial, he was
convicted on all four counts. During the robberies, Fultz
carried, but did not fire, a pistol. He was sentenced to
consecutive mandatory minimum of 60 months’ custody for
the first firearm violation, and a consecutive mandatory
minimum of twenty years’ custody for the second firearm
violation. Although Fultz had no prior criminal history, he
was sentenced to more than thirty years for the two robbery
offenses.

    Fultz appealed both his conviction and his sentence, but
this court affirmed. United States v. Fultz, 60 F.3d 835 (9th
Cir. 1995) (unpublished). Fultz also alleged his trial counsel
was ineffective and filed several pro se § 2255 motions, all
of which were denied.

    In June 2015, the Supreme Court decided Johnson v.
United States, 135 S. Ct. 2551 (2015). Johnson II held that
the “residual clause” of ACCA, 18 U.S.C. § 924(e)(2)(B)(ii),
was void for vagueness. The next year, the Supreme Court
said Johnson II was a substantive rule change, and so was
retroactive. Welch v. United States, 136 S. Ct. 1257 (2016).
                     UNITED STATES V. FULTZ                             5

     Fultz filed this § 2255 motion within one year of Johnson
II. This Court granted Fultz’s application to file a second or
successive § 2255 motion. In July 2017, the district court
denied Fultz’s § 2255 motion, reasoning that § 2111
Robbery is a crime of violence under the elements clause,
and, in any event, Johnson II did not render § 924(c)(3)(B)
void for vagueness. However, the district court granted Fultz
a certificate of appealability. This appeal followed.

            Jurisdiction and Standard of Review

    We have jurisdiction under 28 U.S.C. § 2253. We review
de novo the district court’s denial of a § 2255 motion. United
States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014).

                              Discussion

    The question presented is whether Robbery on a
Government Reservation, 18 U.S.C. § 2111, is an elements
clause “crime of violence,” that is, whether it is an offense
that “has as an element the use, attempted use, or threatened
use of physical force” under 18 U.S.C. § 924(c)(3)(A). We
hold today that § 2111 Robbery is a “crime of violence”
under the elements clause.

    In Johnson I, the Supreme Court considered whether
battery in Florida was categorically a crime involving the
“use, attempted use, or threatened use of physical force.”
Johnson v. United States, 559 U.S. 133 (2010). 1 The Court
held that the phrase “physical force” requires “violent
    1
       Although the Court was interpreting a provision of the ACCA,
§ 924(e)(2)(B)(i), the operative language—“use, attempted use, or
threatened use of physical force”—is identical to the portion of the
statute at issue, § 924(c)(3)(A). This clause in both statutes is referred
to interchangeably as the “elements clause” or the “force clause.”
6                UNITED STATES V. FULTZ

force—that is, force capable of causing physical pain or
injury to another person.” Johnson I, 559 U.S. at 140.

    The relevant language of § 2111 criminalizes robbery
done “by force and violence, or by intimidation.” 18 U.S.C.
§ 2111. We use the “categorical approach” to determine
whether a crime qualifies as a predicate offense under
§ 924(c)(3). See Taylor v. United States, 495 U.S. 575
(2000). This approach requires the Court to “assess[]
whether a crime qualifies as a violent felony ‘in terms of how
the law defines the offense and not in terms of how an
individual offender might have committed it on a particular
occasion.’” Johnson II, 135 S. Ct. at 2557 (quoting Begay v.
United States, 553 U.S. 137, 141 (2008)). Under the
categorical approach, courts must ask whether the conviction
could stand if it rested upon the “least of the acts
criminalized.” Moncrieffe v. Holder, 569 U.S. 184, 190–91
(2013) (quoting Johnson I, 559 U.S. at 137) (alteration
omitted). If the least of the acts criminalized by § 2111
would be a crime of violence under § 924(c)(3)(A), then
§ 2111 Robbery is categorically a crime of violence under
the elements clause.

    We have previously held that 18 U.S.C. § 2119—
carjacking—qualifies as a crime of violence under the
elements clause following Johnson I. United States v.
Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017). Section
2119 has the same force language—“by force and violence
or by intimidation”—as does § 2111 Robbery. This
conclusion also echoes our earlier decision that § 2113 Bank
Robbery is a crime of violence, United States v. Selfa,
918 F.2d 749, 751–52 (9th Cir. 1990), although Selfa was
decided before Johnson I.

    In Gutierrez, we discussed Selfa and concluded that
“[b]ank robbery by intimidation thus requires at least an
                 UNITED STATES V. FULTZ                     7

implicit threat to use the type of violent physical force
necessary to meet the Johnson standard.” Gutierrez, 876
F.3d at 1257. And because § 2113 Bank Robbery and § 2119
Carjacking are criminalized using the same language, there
is “no reason to interpret the term ‘intimidation’ in the
federal carjacking statute any differently.” Id.

    We employed the same reasoning in United States v.
Watson, 881 F.3d 782 (9th Cir. 2018) (per curiam), in which
this court concluded that, even after Johnson I, § 2113 Bank
Robbery is a “crime of violence under the force clause.” Id.
at 784. In Watson, after determining that the categorical
approach applies, we rejected the defendants’ argument that
bank robbery by intimidation alone did not meet the
requirements for a “crime of violence.” Id. at 785. In doing
so, we discussed and relied on Gutierrez, concluding that
even bank robbery by intimidation involved “the type of
violent physical force necessary to meet the Johnson [I]
standard.” Id. at 785 (quoting Gutierrez, 876 F.3d at 1257).

    So too here. Because § 2111 uses the same force
language as § 2113 (Selfa; Watson) and § 2119 (Gutierrez),
the controlling cases on this question have led us to conclude
that § 2111 Robbery, even if done by “intimidation” alone,
is categorically a “crime of violence” for the purposes of
§ 924(c)(3)(A).

    Fultz relies on United States v. Goldtooth, arguing that
Goldtooth shows that a defendant can be convicted under
§ 2111 even when he uses only de minimis force and that this
level of force is insufficient under Johnson I to qualify as a
“crime of violence.” See United States v. Goldtooth, 754
F.3d 763 (9th Cir. 2014). This argument, made by drawing
conclusions from what the Goldtooth court did not say, is
precluded by Gutierrez.
8                UNITED STATES V. FULTZ

    In Goldtooth, two defendants were convicted of § 2111
Robbery for “snatch[ing]” tobacco from two teenagers.
Goldtooth, 754 F.3d at 766. The defendants carried baseball
bats and knives but did not use these weapons on the
teenagers. Id. The defendants patted down the teenagers, as
if looking for weapons, and asked whether the teens had
money or wallets on them. Id. At one point, one of the
defendants “nudged” a teenager with the bat “to hurry him
up.” Id. After some back-and-forth, the defendants suddenly
“snatched” the tobacco from the teenagers and fled. Id. “No
verbal threats were ever made; [the teenagers] were not
physically harmed.” Id. A jury convicted the defendants of
two counts, one for the robbery of the tobacco and the second
for the attempted robbery of the money and wallet. The
defendants were convicted on an “aiding and abetting”
theory, whereby the government could satisfy its burden
without having to prove “which person had actually carried
out the robbery and which person or persons had aided and
abetted.” Id. at 768.

    On appeal, the defendants’ convictions were vacated
because of insufficient evidence. Id. at 765. The Ninth
Circuit concluded that, as to the robbery of the tobacco, the
government lacked evidence that either defendant had the
specific intent to aid and abet the robbery because they did
not have advance knowledge that the robbery was going to
take place. Id. at 768–69. The federal government failed to
show that the defendants “had drawn up plans or had
discussions prior to the taking.” Id. at 769. In addition, the
prosecution had presented insufficient evidence to sustain a
conviction on the second count for attempted robbery of the
wallet because attempted robbery also required specific
intent, which the government was unable to prove. Id. at 770.
                     UNITED STATES V. FULTZ                               9

    But the crux of Goldtooth, according to Fultz, is what the
Ninth Circuit does not say. Although the panel reversed and
remanded for entry of judgment of acquittal on both counts,
it did so on the basis that the evidence was insufficient to
sustain the specific intent elements of the crimes—not
because § 2111 Robbery could not be accomplished by a
mere “snatch” or with such de minimis use of force. Fultz
urges this panel to follow Goldtooth’s assumption that such
minimal force can accomplish a § 2111 Robbery. If this were
the rule, then there would be evidence that § 2111 Robbery
and § 2119 Carjacking are interpreted differently by courts.
This would also support the conclusion that § 2111 Robbery
would not be a “crime of violence” under the elements clause
because Johnson I and subsequent cases indicate that a
“snatch” is insufficient to qualify as “violent physical
force.” 2

    This reading of Goldtooth is precluded by Gutierrez and
Watson. Fultz is correct that the Goldtooth court did not say
it was vacating the convictions because the “snatching” was
insufficient to sustain § 2111 Robbery. But we cannot infer

    2
       The Supreme Court recently suggested this continues to be its
approach to these questions in Stokeling v. United States, No. 17-5554
(U.S. Jan. 15, 2019). Stokeling was convicted of robbery in Florida and
argued that the Florida robbery statute did not qualify as a “crime of
violence” under §924(e)(2)(B)(i)—the elements clause at issue in
Johnson I. The relevant Florida robbery statute criminalizes “the use of
force, violence, assault, or putting in fear.” Slip op. at 2. The Supreme
Court held that the “elements clause encompasses robbery offenses that
require the criminal to overcome the victim’s resistance.” Slip op. at 3.
Although Stokeling involves Florida robbery and not § 2111 Robbery,
the language defining the offense is similar. The Supreme Court’s
conclusion first reaffirms that the categorical approach is the correct one,
slip op. at 3, and reaffirms that the level of force defined by Florida
robbery qualifies as a “crime of violence” under the ACCA elements
clause at § 924(e)(2)(B)(i).
10                UNITED STATES V. FULTZ

a conclusion one way or the other from the silence in
Goldtooth when Gutierrez and Watson are on point.

    At oral argument, Fultz made a further argument in an
attempt to distinguish the language of § 2119 Carjacking and
§ 2111 Robbery. Fultz noted that § 2119 Carjacking has an
intent element—“whoever, with the intent to cause death or
serious bodily harm”—that § 2111 Robbery does not. This
observation is correct, but does not persuade us that the force
clauses in these statutes have different meanings. Section
2113 Bank Robbery, discussed in Selfa, lacks a specified
intent “to cause death or serious bodily harm,” and thus
resembles Section 2111 Robbery. Although Selfa was
decided before Johnson I, the Gutierrez court relied on both
Selfa and Johnson I when it held that § 2119 Carjacking is a
crime of violence. Relying on the manner of execution and
not any specified intent, it explained that “[b]ank robbery by
intimidation thus requires at least an implicit threat to use the
type of violent physical force necessary to meet the Johnson
standard.” Gutierrez, 876 F.3d at 1257. The reasoning in
Gutierrez illustrates that we consider Selfa to be consistent
with Johnson I and have continued to interpret the force
clause in the same way. And in Watson, decided after
Johnson I, we also dismissed an argument that bank robbery
by intimidation lacks the mens rea to meet the threshold set
forth in Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). Watson,
881 F.3d at 784. Watson held that, because § 2113 Bank
Robbery by intimidation cannot be done by mere negligence,
it does meet the mens rea threshold. Id. Accordingly, the
language difference in these statutes does not affect our
understanding of the force clause of § 2111 Robbery, which
we find meets the Johnson I standard to be an elements
clause “crime of violence.”
                 UNITED STATES V. FULTZ                   11

    With this precedent, we decline to change course today.
There is not a compelling reason at this time to read “by
force and violence or by intimidation” differently in § 2111
Robbery and in § 2119 Carjacking. Because § 2119
Carjacking and § 2113 Bank Robbery, by means of
“intimidation,” qualifies as a “crime of violence” under the
elements clause after Johnson I, so too does § 2111 Robbery.

                        Conclusion

    Robbery in violation of 18 U.S.C. § 2111 is a “crime of
violence” under the elements clause of § 924(c)(3)(A).
Accordingly, Fultz is ineligible for relief under Johnson II,
and the district court is affirmed.

   AFFIRMED.
