UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

CRIMINAL NO. 19-CR-00027 (ESH)
TREVONTA BARNES,

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant Trevonta Barnes moves to dismiss Count Two of the indictment, which charges
a violation of 18 U.S.C. § 924(c), by arguing that the alleged predicate crime, federal carjacking in
violation of 18 U.S.C. § 2119, does not qualify as a “crime of violence.” (See Mot. to Dismiss
[ECF 29] at 1.) For the following reasons, the Court will deny Barnes’ motion.

18 U.S.C. § 924(c)(1)(A), which carries a mandatory minimum of at least five years,
encompasses:

[A]ny person who, during and in relation to any crime of violence or drug

trafficking crime (including a crime of violence or drug trafficking crime that

provides for an enhanced punishment if committed by the use of a deadly or

dangerous weapon or device) for which the person may be prosecuted in a court of

the United States, uses or carries a firearm, or who, in furtherance of any such

crime, possesses a firearm....
18 U.S.C. § 924(c)(1)(A) (emphases added). “Crime of violence” is defined in Section 924(c)(3) to
include the following:

[A]n 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.

Id. § 924(c)(3). In its recent case United States v. Davis, 139 8. Ct. 2319 (2019), the Supreme
Court struck down Section 924(c)(3)(B), otherwise known as the “residual clause,” as
unconstitutionally vague. See id. at 2336. Asa result, a would-be predicate offense can only
constitute a “crime of violence” sufficient to satisfy Section 924(c)(3) if it fits within subsection
(A)—it must “ha[ve] 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). This clause is often referred
to as the “force clause,” or the “elements clause.”

To determine whether a prior conviction qualifies as a “crime of violence” under the
elements clause, courts use what is known as the “categorical approach.” Descamps vy. United
States, 370 U.S. 254, 260-61 (2013). The “categorical approach” means that courts look at the
“elements” of the generic offense rather than the particular facts underlying a conviction. Jd. at
261; see also Mathis v. United States, 136 S. Ct. 2243, 2251 (2016) (“How a given defendant
actually perpetrated the crime—what [the Supreme Court has] referred to as the ‘underlying brute
facts or means’ of commission—makes no difference... .” (internal citation omitted)). Because
the Court “examine[s] what the [predicate crime] necessarily involved, not the facts underlying the
case, [it] must presume that the [crime] rested upon nothing more than the least of the acts
criminalized.” Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013) (original alterations and internal
quotation marks omitted).

The Court must therefore determine the least of the acts criminalized under the predicate
statute and ask if such an act “has as an element the use, attempted use, or threatened use of
physical force.” 18 U.S.C. § 924(c)(3)(A). To answer that question, the Court will look to the

definition of the offense. 18 U.S.C. § 2119, which criminalizes carjacking, encompasses

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“[w]hoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has
been transported, shipped, or received in interstate or foreign commerce from the person or
presence of another by force and violence or by intimidation, or attempts to do so.”

Because carjacking can be accomplished “by intimidation,” in addition to “by force and
violence,” Barnes argues that it does not categorically require force. However, every circuit to
consider this question has concluded otherwise and uniformly held that a carjacking committed “by
intimidation” nonetheless involves, at the very least, threatened force. See, e.g., Estell vy. United
States, 924 F.3d 1291, 1293 (8th Cir. 2019); United States v. Jackson, 918 F.3d 467, 486 (6th Cir.
2019); United States v. Cruz-Rivera, 904 F.3d 63, 66 (1st Cir. 2018); United States v. Kundo, 743
F, App’x 201, 203 (10th Cir. 2018); United States v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir.
2017); United States v. Jones, 854 F.3d 737, 740 (Sth Cir. 2017); United States v. Evans, 848 F.3d
242, 247-48 (4th Cir. 2017); In re Smith, 829 F.3d 1276, 1280 (11th Cir. 2016). The Court agrees
with the persuasive reasoning set forth by these circuits. As Chief Judge Howell of this court aptly
observed, intimidation is “conduct reasonably causing fear of bodily harm.” United States v.
Hammond, 354 F. Supp. 3d 28, 50 (D.D.C. 2018). And, “[a] defendant cannot put a reasonable
person in fear of bodily harm without threatening to use ‘force capable of causing physical pain or
injury.” Gutierrez, 876 F.3d at 1257 (quoting Johnson v. United States, 559 U.S. 133, 140
(2010)); see also Jackson, 918 F.3d at 486 (“[I]ntimidation . . . involves the threat to use physical
force.” (internal quotation marks omitted)).

Barnes argues that “we all know that many other types of intimidation (financial,
emotional, etc.) also exist,” and that “intimidation could also occur . . . through a threat of
poisoning.” (See Reply [ECF 56] at 5 (emphases in original).). A defendant must do more than
simply apply “legal imagination to a. . . statute’s language.” Gonzalez v. Duenas-Alvarez, 549 U.S.

183, 193 (2007). He must demonstrate “a realistic probability, not a theoretical possibility,” that
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the statute could be applied to conduct that does not include an element of force. Jd. (emphasis
added). But Barnes points the Court to no such cases and, to paraphrase the Fourth Circuit, “it will
be the rare [carjacker] who commits that offense with poison.” United States v. McNeal, 818 F.3d
141, 156 (4th Cir. 2016).

Barnes next argues that the D.C. Circuit has allowed jurors to make inferences based on
evidence of the end results of a crime from the position of the victim, and as such, section 2119
cannot categorically qualify as a crime of violence because “no direct proof... appears to be
necessary that force or violence was actually ever expressed or acted on.” (Reply at 6; see also
Mot. to Dismiss at 4-5.) However, the cases he cites simply make the unremarkable observation
that the fact that a defendant’s victim died is likely relevant to the question of whether force and
violence were used in commission of the crime. See United States v. Rezaq, 134 F.3d 1121, 1138
(D.C. Cir. 1998); see also United States v. Rivera-Gomez, 67 F.3d 993, 996 (1st Cir. 1995) (“It is
difficult to conceive of a situation in which the death of a victim will not be relevant to the use of
force and violence during the commission of an attempted carjacking.”), overruled on other
grounds by Jones v. United States, 526 U.S. 227 (1999). Presumably, if a carjacking was
accomplished by intimidation only, some other form of proof would be used to demonstrate that
element. Barnes’ invocation of these cases thus merits little consideration.

For reasons discussed above, it is hereby ORDERED that defendant’s motion to dismiss

Count Two (ECF 29) is DENIED.

ie Ae

a” ELLEN S. HUVELLE
United States District Judge

 

 

Date: October 24, 2019
