Irma Ovalles v. United States (11th Cir. October 2018)
Firearm Offenses/18 U.S.C. § 924(c) – Attempted car-jacking under 18 U.S.C. § 2119 is a “crime of violence” under the elements clause of § 924(c).
18 U.S.C. § 924(c) criminalizes the possession or use of a firearm during the commission of a “crime of violence.” After the Eleventh Circuit, sitting en banc, held that Ms. Ovalles’s conviction under § 924(c) was valid under the residual clause defining “crime of violence,” the panel was tasked with determining whether it was also valid under the “elements clause.”
The elements clause, § 924(c)(3)(A), defines a “crime of violence” as any felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
Therefore, the issue was whether Ms. Ovalles’s attempted car-jacking had an element of using, attempting, or threatening to use physical force and was therefore a predicate “crime of violence.”
While the residual clause at issue in the en banc Ovalles opinion requires a “conduct-based approach” to determine whether an underlying felony is a “crime of violence, underlying offenses under the elements clause of § 924(c) are qualified under the “categorical approach.”
The categorical approach requires a court to look at the statutory elements of the underlying offense in a § 924(c) charge, not the defendant’s actual conduct, and determine whether those statutory elements require a use or threat of violence.
The Court first noted that car-jacking was categorically a “crime of violence” under Eleventh Circuit precedent and rejected Ms. Ovelles’s argument that “intimidation” was insufficient to constitute force or the threat of force.
The Court then concluded that attempted car-jacking under 18 U.S.C. § 2119 was a categorically a crime of violence under the elements clause. The Court explained that attempted car-jacking clearly requires a specific intent to cause death or bodily harm if necessary to steal a vehicle. Just as importantly, an “attempt” requires that a defendant take a substantial step with that specific intent.
Even if attempted car-jacking itself doesn’t have the requisite elements, the Court added that it agreed with Seventh Circuit precedent that automatically qualifies attempted violent crimes as “crimes of violence” under § 924(c). Accordingly, attempted car-jacking is categorically a “crime of violence” going forward.
Appeal from Northern District of Georgia
Per Curiam Opinion by Tjoflat, W. Pryor, and Hull