United States v. Lecharles Baldon

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10411

Plaintiff-Appellee,

D.C. No.

v. 3:17-cr-00007-

LRH-CBC-1

LECHARLES BALDON,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted November 13, 2019

San Francisco, California

Filed April 21, 2020

Before: Mark J. Bennett and Kenneth K. Lee, Circuit

Judges, and Lawrence L. Piersol, ∗ District Judge.

Opinion by Judge Bennett

∗

The Honorable Lawrence L. Piersol, United States District Judge

for the District of South Dakota, sitting by designation.

2 UNITED STATES V. BALDON

SUMMARY **

Criminal Law

The panel affirmed in part and vacated in part the district

court’s application of the Sentencing Guidelines, and

remanded for resentencing, in a case in which the defendant

argued that the district court erred in finding (1) that his prior

convictions for carjacking under section 215 of the

California Penal Code qualify as crimes of violence under

U.S.S.G. § 4A1.1(e); and (2) that he possessed a firearm

under U.S.S.G. § 2D1.1(b)(1).

The panel held that Solorio-Ruiz v. Sessions, 881 F.3d

733 (9th Cir. 2018)—which held that carjacking under

section 215 is not a crime of violence under 8 U.S.C.

§ 1101(a)(43)(F) because that statute requires only force in

excess of that required to seize the vehicle, however slight

that may be—is irreconcilable with, and no longer good law

following, the Supreme Court’s decision in Stokeling v.

United States, 139 S. Ct. 544 (2019), which clarified that the

requisite “violent force” for a crime of violence is any force

sufficient to overcome a victim’s physical resistance. The

panel held that Nieves-Medrano v. Holder, 590 F.3d 1057

(9th Cir. 2010) (order), which Solorio-Ruiz abrogated, is not

controlling.

The panel nevertheless held that carjacking under section

215 is not a crime of violence under U.S.S.G. § 4A1.1(e).

Because section 215 may be violated through fear of injury

**

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. BALDON 3

to property alone and therefore criminalizes a broader range

of conduct than the federal definition of “crime of violence,”

the panel held that section 215 is not a categorical match to

the elements clause, U.S.S.G. § 4B1.2(a)(1), or the

enumerated offenses clause, U.S.S.G. § 4B1.2(a)(2). The

panel added that section 215 is not divisible, and that the

modified categorical approach is therefore inapplicable.

Rejecting the defendant’s argument that there was

insufficient evidence that he owned the gun or was aware of

its presence, the panel held that the district court properly

applied a two-level enhancement for possession of a firearm

under U.S.S.G. § 2D1.1(b)(1).

COUNSEL

Justin J. Bustos (argued), Dickinson Wright PLLC, Reno,

Nevada, for Defendant-Appellant.

Nancy M. Olson (argued), Assistant United States Attorney;

Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich,

United States Attorney; United States Attorney’s Office, Las

Vegas, Nevada; for Plaintiff-Appellee.

4 UNITED STATES V. BALDON

OPINION

BENNETT, Circuit Judge:

LeCharles Baldon pled guilty to possession with intent

to distribute a controlled substance, in violation of 21 U.S.C.

§ 841(a), and the district court sentenced him to 184 months.

This case presents two issues: first, whether Baldon’s prior

convictions for carjacking under section 215 1 of the

California Penal Code qualify as crimes of violence under

U.S.S.G. § 4A1.1(e), and second, whether the district court

erred in finding that Baldon possessed a firearm under

U.S.S.G. § 2D1.1(b)(1). We hold that section 215 is not a

categorical crime of violence, and thus the district court

erred in calculating Baldon’s sentence. But the district court

did not err in finding that Baldon possessed a firearm.

I.

In 2016, the FBI received information that Baldon was

dealing methamphetamine and heroin in Reno, Nevada. The

FBI and the DEA set up four controlled buys in late 2016,

utilizing an informant. 2 Federal agents saw that Baldon

accessed a storage unit before his first meeting with the

informant. The agents contacted the storage company and

learned that the unit was rented to Angelique Baker. On

January 3, 2017, a manager of the storage company told the

agents that Baldon had come to the office and paid to extend

the lease. Agents conducted a sweep of storage units with a

1

All “section” references are to the California Penal Code.

2

The dates of these buys were November 18, December 1,

December 6, and December 20.

UNITED STATES V. BALDON 5

drug dog, and the dog alerted on the unit Baldon had

accessed.

On January 17, 2017, agents arrested Baldon and

executed a search warrant on his residence and the storage

unit. At Baldon’s residence, agents found

methamphetamine, cocaine, two scales, and packaging

material, as well as 9-millimeter ammunition matching the

caliber of the weapon found in the storage unit. 3 The agents

found a backpack containing methamphetamine, heroin, and

a loaded gun in the storage unit.

The government charged Baldon with various

methamphetamine and heroin offenses and being a felon in

possession of a firearm. Baldon pled guilty to one count of

possession with intent to distribute methamphetamine, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C)

The district court calculated a total offense level of 31

and a criminal history category V (based on 11 criminal

history points), resulting in a 168 to 210 month guideline

range. The district court’s sentencing calculation included

two criminal history points under U.S.S.G. § 4A1.1(e) for

Baldon’s prior carjacking convictions and a two-point

enhancement for the possession of a firearm under U.S.S.G.

§ 2D1.1(b)(1). The district court agreed with the government

and applied the “modified categorical approach” (looking at

the charging documents) to determine whether Baldon’s

prior carjacking convictions were crimes of violence under

U.S.S.G. § 4A1.1(e). The district court sentenced Baldon to

3

The government noted this to the district court at sentencing.

Baldon did not contest this fact before the district court.

6 UNITED STATES V. BALDON

184 months. We have jurisdiction under 18 U.S.C. § 3742(a)

and 18 U.S.C. § 1291.

II.

We review de novo a district court’s determination that

“a prior conviction qualifies as a crime of violence.” United

States v. Perez, 932 F.3d 782, 784 (9th Cir. 2019) (citing

United States v. Rivera-Muniz, 854 F.3d 1047, 1048–49 (9th

Cir. 2017)). We apply the categorical approach set forth in

Taylor v. United States, 495 U.S. 575 (1990), to determine

whether a state conviction qualifies as a crime of violence

under U.S.S.G. § 4A1.1(e). See id. “Under the categorical

approach, we compare the elements of each offense with the

federal definition of ‘crime of violence’ to determine

whether the [state] offense criminalizes a broader range of

conduct than the federal definition captures.” United States

v. Edling, 895 F.3d 1153, 1155 (9th Cir. 2018). If the state

offense proscribes conduct beyond the federal definition, it

will not qualify as a crime of violence. See United States v.

Bankston, 901 F.3d 1100, 1102–03 (9th Cir. 2018).

However, even if the offense is not a categorical match,

we may use the modified categorical approach if the state

statute is divisible, i.e., if it sets out one or more elements of

the offense in the alternative. Id. at 1103 n.2; see also Perez,

932 F.3d at 785 n.1. “If ‘a defendant was convicted of

violating a divisible statute,’ a court may employ the

modified categorical approach, for which it must ‘identify,

from among several alternatives, the crime of conviction so

that the court may compare it to the generic offense.’”

United States v. Brown, 879 F.3d 1043, 1047 n.1 (9th Cir.

2018) (quoting Descamps v. United States, 570 U.S. 254,

263–64 (2013)).

UNITED STATES V. BALDON 7

A.

Before applying the categorical approach, we must first

decide whether we are bound by Solorio-Ruiz v. Sessions,

881 F.3d 733 (9th Cir. 2018), where we held that section 215

is not a crime of violence under 8 U.S.C. § 1101(a)(43)(F) 4.

The government argues that Solorio-Ruiz is clearly

irreconcilable with the Supreme Court’s decision in

Stokeling v. United States, 139 S. Ct. 544 (2019). We agree.

A three-judge panel is bound by prior circuit decisions

unless the decision is “‘clearly irreconcilable’ with a

subsequent Supreme Court decision.” United States v.

Shelby, 939 F.3d 975, 978 (9th Cir. 2019) (quoting Close v.

Sotheby’s Inc., 894 F.3d 1061, 1072–73 (9th Cir. 2018)).

“The issues decided by the higher court need not be

identical,” only that the Supreme Court “undercut the theory

or reasoning underlying the prior circuit precedent in such a

way that the cases are clearly irreconcilable.” Miller v.

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). “The

clearly irreconcilable requirement is a high standard,” and as

long as we “can apply our prior circuit precedent without

4

8 U.S.C. § 1101(a)(43)(F) defines “crime of violence” by cross-

referencing the definition provided in 18 U.S.C. § 16. Section 16 defines

“crime of violence” as:

(a) an offense that has as an element the use, attempted

use, or threatened use of physical force against the

person or property of another, or

(b) any other offense that is a felony and 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.

18 U.S.C. § 16.

8 UNITED STATES V. BALDON

running afoul of the intervening authority[,] [we] must do

so.” Sotheby’s, 894 F.3d at 1073 (internal quotation marks

omitted) (quoting United States v. Robertson, 875 F.3d 1281,

1291 (9th Cir. 2017), vacated on other grounds, 139 S. Ct.

1543 (2019)).

In Solorio-Ruiz, we relied on Johnson v. United States,

559 U.S. 133 (2010), to conclude that carjacking under

section 215 was not a crime of violence because section 215

“does not require the violent force that Johnson demands of

a crime of violence” and “requires only force in excess of

that required to seize the vehicle, however slight that may

be.” 881 F.3d at 737 (internal quotation marks omitted). We

interpreted Johnson to require “that the physical force that a

crime of violence entails” must be “violent force—that is,

force capable of causing physical pain or injury to another

person.” Id. at 736. We looked to California cases

interpreting section 215 and found that the statute does not

require the use of violent force because “California

carjacking ‘requires only force in excess of that required to

seize the vehicle,’ however slight that may be.” Id. at 737

(quoting People v. Hudson, 217 Cal. Rptr. 3d 775, 782 (Ct.

App. 2017)). We relied on Hudson’s facts to conclude that

the force inherent in driving the stolen vehicle can be

“enough to sustain a carjacking conviction, whenever the

victim puts up the slightest resistance.” Id. (emphasis added)

(citing Hudson, 217 Cal. Rptr. 3d at 782).

Last year the Supreme Court revisited Johnson in

Stokeling. The Court explained that at common law the terms

“violence” and “force” were used interchangeably, and that

“[t]he common law also did not distinguish between

gradations of ‘violence.’ If an act physically overcame a

victim’s resistance, ‘however slight’ that resistance might

be, it necessarily constituted violence.” Stokeling, 139 S. Ct.

UNITED STATES V. BALDON 9

at 550. This understanding of “physical force” aligns with

Johnson because “the force necessary to overcome a

victim’s physical resistance is inherently ‘violent’ in the

sense contemplated by Johnson, and ‘suggest[s] a degree of

power that would not be satisfied by the merest touching.’”

Id. at 552–53 (quoting Johnson, 559 U.S. at 139).

This clarification of “violent force” (any force sufficient

to overcome a victim’s physical resistance) is “clearly

irreconcilable” with our reasoning in Solorio-Ruiz. Our

opinion rested on the analytical distinction between

substantial and minimal force. This distinction no longer

exists. See Ward v. United States, 936 F.3d 914, 919 (9th

Cir. 2019). As a result, Solorio-Ruiz’s holding is no longer

good law.

Baldon argues, however, that Solorio-Ruiz is not “clearly

irreconcilable” with Stokeling, relying on the Court’s

clarification that under Florida law a defendant is not guilty

of robbery when he “merely snatches money from the

victim’s hand” or steals a gold chain and the victim feels

defendant’s fingers on her skin. See Stokeling, 139 S. Ct.

at 555.

We have recently clarified that “Stokeling made clear

that force involved in snatchings, where there is no

resistance, is not sufficient to fall under the [statutory] force

clause.” Ward, 936 F.3d at 919 n.4 (emphasis added). But

Baldon cites no authority showing, and we have found none,

that carjacking can be accomplished by force with no

resistance from the victim. Rather, California courts have

held that “a perpetrator accomplishes the taking of a motor

vehicle by means of force, as defined under section 215,

when the perpetrator drives the vehicle while a victim holds

on or otherwise physically attempts to prevent the theft.”

People v. Lopez, 214 Cal. Rptr. 3d 618, 623 (Ct. App. 2017)

10 UNITED STATES V. BALDON

(emphasis added); accord Hudson, 217 Cal. Rptr. 3d at 779. 5

Thus, we may no longer rely on Solorio-Ruiz.

B.

We have one final question to resolve before we proceed

to determine whether carjacking is categorically a crime of

violence: Does Nieves-Medrano v. Holder, 590 F.3d 1057

(9th Cir. 2010) (order), the case that Solorio-Ruiz abrogated,

now control our decision? We conclude that it does not for

two reasons. First, the holding of Nieves-Medrano rested

mainly on our decision in United States v. Becerril-Lopez,

541 F.3d 881, 893 (9th Cir. 2008), in which we held that

robbery under section 211 was a crime of violence under

U.S.S.G. § 2L1.2. See 590 F.3d at 1057–58. We recently

abrogated Becerril-Lopez after holding that section 211

robbery was no longer a categorical crime of violence. See

Bankston, 901 F.3d at 1102. Second, our legal conclusion in

Nieves-Medrano rested on a crime of violence definition

5

Baldon cites one California robbery case, People v. Lescallett,

176 Cal. Rptr. 687 (Ct. App. 1981), that may support his contention that

robbery in California may be accomplished with no resistance by the

victim. This is insufficient to cast doubt on the clear authority in Hudson

and Lopez that tells us that physical resistance is required for carjacking

based on force.

The non-California robbery cases Baldon relies on are similarly

distinguishable because they focus on statutes that require no resistance

from the victim. See United States v. Bong, 913 F.3d 1252 (10th Cir.

2019) (holding that Kansas robbery statute could be accomplished by

mere snatching of the purse “without any resistance by or injury to the

victim”); United States v. Strickland, 860 F.3d 1224 (9th Cir. 2017)

(finding Oregon third degree robbery statute could be accomplished by

purse snatching). We affirmed the vitality of Strickland after Stokeling

on this distinction in United States v. Shelby, 939 F.3d 975, 979 (9th Cir.

2019).

UNITED STATES V. BALDON 11

broader than the one applicable here in U.S.S.G. § 4B1.2(a).

See Becerril-Lopez, 541 F.3d at 889. Thus, Nieves-Medrano

is relevant but not controlling.

III.

Having resolved these preliminary questions, we now

consider whether section 215 carjacking is a categorical

crime of violence under U.S.S.G. § 4A1.1(e). We conclude

it is not.

A.

Section 4A1.1(e) borrows the definition of “crime of

violence” from U.S.S.G. § 4B1.2(a). See U.S.S.G.

§ 4A1.2(p).

U.S.S.G § 4B1.2(a) states:

(a) The term “crime of violence” means any

offense under federal or state law, punishable

by imprisonment for a term exceeding one

year, that—

(1) has as an element the use, attempted use,

or threatened use of physical force against the

person of another, or

(2) is murder, voluntary manslaughter,

kidnapping, aggravated assault, a forcible sex

offense, robbery, arson, extortion, or the use

or unlawful possession of a firearm described

in 26 U.S.C. § 5845(a) or explosive material

as defined in 18 U.S.C. § 841(c).

12 UNITED STATES V. BALDON

The government argues that section 215 is a categorical

crime of violence under both subsections (a)(1) and (a)(2).

Subsection (a)(1) is commonly known as the “elements” or

“force” clause, and subsection (a)(2) is often called the

“enumerated offenses” clause. 6 See Bankston, 901 F.3d at

1106 n.4; Edling, 895 F.3d at 1155. Baldon argues that the

government waived these arguments because it failed to

raise them before the district court.

“Generally, we do not entertain arguments on appeal that

were not presented or developed before the district court.”

Tibble v. Edison Int’l, 843 F.3d 1187, 1193 (9th Cir. 2016)

(en banc) (alteration and internal quotation marks omitted).

But we have discretion to consider waived issues in three

circumstances: “in the ‘exceptional’ case in which review is

necessary to prevent a miscarriage of justice or to preserve

the integrity of the judicial process,” “when a new issue

arises while appeal is pending because of a change in the

law,” and “when the issue presented is purely one of law and

either does not depend on the factual record developed

below, or the pertinent record has been fully developed.”

Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir. 1985).

We exercise our discretion to consider the government’s

argument that section 215 is a categorical crime of violence

under the elements clause in § 4B1.2(a)(1) because there was

a “change in the law.” Id. The Supreme Court decided

Stokeling while Baldon’s appeal was pending. We also

exercise our discretion to consider the government’s

6

The Court’s recent decision in Shular v. United States, 140 S. Ct.

779 (2020) does not affect our analysis. There, the Court addressed why

the elements clause analysis, id. at 786, and the enumerated offenses

clause analysis, id. at 785–86, for statutes like the one here, are not

impacted by its opinion in Shular.

UNITED STATES V. BALDON 13

argument that section 215 is a crime of violence under the

enumerated offenses clause in § 4B1.2(a)(2) because it “is

purely one of law and . . . does not depend on the factual

record developed below.” Id. We do so because as explained

below, both analyses turn on the same question: Can a

section 215 conviction be based on fear of injury to property

alone?

B.

Because the categorical approach requires us to compare

the federal definition of “crime of violence” with the

elements of the state offense, our analysis begins by

comparing the applicable federal definition and section 215.

See Edling, 895 F.3d at 1155.

Section 215 will qualify as a crime of violence under

§ 4B1.2 if it is a categorical match to either the elements

clause (subsection (a)(1)) or the enumerated offenses clause

(subsection (a)(2)). See id.

In determining whether section 215 is a categorical

match, we consider the statute’s text, and “we may [also]

consider the interpretation of the statute provided by state

courts.” Perez, 932 F.3d at 785.

Section 215’s text criminalizes:

the felonious taking of a motor vehicle in the

possession of another, from his or her person

or immediate presence, or from the person or

immediate presence of a passenger of the

motor vehicle, against his or her will and with

the intent to either permanently or

temporarily deprive the person in possession

14 UNITED STATES V. BALDON

of the motor vehicle of his or her possession,

accomplished by means of force or fear.

Cal. Pen. Code § 215(a). Baldon argues that section 215 may

be violated through fear of injury to property alone, without

any fear of injury to a person, and therefore, the statute

“criminalizes a broader range of conduct than the federal

definition captures.” Edling, 895 F.3d at 1155. We agree.

1.

We turn first to the elements clause. Section 215 does not

textually limit “fear” to fear against the person of another,

unlike § 4B1.2(a)(1). The California Legislature “created the

crime of carjacking in 1993.” People v. Lopez, 79 P.3d 548,

551 (Cal. 2003). The statute “is a direct offshoot of robbery”

and its statutory language “tracks the language in the robbery

statute.” Id. at 553. As relevant here, “[b]oth are

accomplished by means of force or fear.” Id. (internal

quotation marks omitted). Section 212 defines “fear” as used

in the robbery statute (section 211) to include fear of injury

to the property as well as the person. Cal. Pen. Code § 212.

The government acknowledges that California courts

construe section 215 alongside the robbery statute but argues

that the carjacking statute does not import the statutory

definition of fear. However, California’s model jury

instructions are to the contrary. 7 The carjacking instructions

incorporate the statutory robbery definition of fear into the

carjacking definition of fear. See People v. Gomez, 121 Cal.

Rptr. 3d 475, 485 n.6 (Ct. App. 2011) (noting that the jury

“was instructed, in accordance with CALCRIM No. 1650,

7

California courts routinely cite model jury instructions

authoritatively to interpret state statutes. See, e.g., People v. Montalvo,

248 Cal. Rptr. 3d 708, 728 n.12 (Ct. App. 2019).

UNITED STATES V. BALDON 15

that fear for the purposes of the carjacking count, ‘means

fear of injury to the person, himself or herself or injury to the

person’s family or property.’” (emphasis added)

disapproved on other grounds by People v. Elizade, 351 P.3d

1010 (2015)).

The government argues that Baldon has not established

a “realistic probability” that a section 215 violation would be

based on or include fear of injury to property. See Gonzales

v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (requiring a

“realistic probability, not a theoretical possibility, that the

State would apply its statute to conduct that falls outside the

generic definition of a crime”). To show a “realistic

probability” that California would apply section 215 to

include conduct outside the scope of § 4B1.2(a)(1) Baldon

has two paths. He can first “point to his own case or other

cases in which the state courts in fact did apply the statute in

the special (nongeneric) manner for which he argues.” Id.

Or, “if a state statute explicitly defines a crime more broadly

than the generic definition, no ‘legal imagination’ is required

to hold that a realistic probability exists . . . .’” Chavez-Solis

v. Lynch, 803 F.3d 1004, 1009 (9th Cir. 2015) (quoting

United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007)

(en banc) abrogated on other grounds by United States v.

Stitt, 139 S. Ct. 2007 (2018)). “The [defendant] may simply

‘rely on the statutory language to establish the statute as

overly inclusive.’” Id. at 1010 (quoting United States v.

Vidal, 504 F.3d 1072, 1082 (9th Cir. 2007) (en banc)).

Baldon succeeds on both paths. First, no “legal

imagination” is required because section 215 explicitly

defines carjacking more broadly than § 4B1.2(a)(1) by not

limiting fear only to persons. Second, Baldon also points to

at least one case in which the California Court of Appeal

upheld a carjacking conviction based in part on fear of injury

16 UNITED STATES V. BALDON

to property. See People v. Lopez, No. F053928, 2008 WL

5103231, at *8 (Cal. Ct. App. Dec. 5, 2008) (unpublished)

(finding sufficient evidence of “force or fear” because one

of the reasonable inferences the jury could have made was

“that [the victim] was concerned for the fate of his vehicle”).

The government, however, states that no published

California carjacking case has ever cited the statutory

definition of fear under the robbery statute. But, we can rely,

and have previously relied, on unpublished California cases

to show that the state has applied the statute in a non-generic

manner. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 876

n.3 (9th Cir. 2008); see also Castillo-Cruz v. Holder,

581 F.3d 1154, 1161 n.9 (9th Cir. 2009). And, importantly,

the jury instructions routinely used by California courts

include fear of injury to property. It would be one thing if

the fear of injury to property element were simply invented

by creative defense lawyers. It is quite another when that

element is part of the standard California jury instructions

that are perhaps given in every case. The government also

argues that the common thread weaving the carjacking cases

together is threats of force against the victim. 8 But that

argument misconstrues the focus of our analysis. Under the

categorical approach we pay particular attention to cases

“that examine the outer contours of the conduct

criminalized.” United States v. Strickland, 860 F.3d 1224,

8

The government also briefly argues that the legislature enacted the

statute because of the “serious potential for harm to the victim . . . .”

People v. Antoine, 56 Cal Rptr. 2d 530, 534 (Ct. App. 1996) (citing

legislative committee reports). But “[s]ection 215’s ‘actual language

prevails, not the [legislative] committee’s report.’” People v. Johnson,

343 P.3d 808, 827 (Cal. 2015) (quoting Martinez v. Regents of Univ. of

California, 241 P.3d 855, 865 (Cal. 2010)) (finding that “immediate

presence” in section 215 had the same meaning as in section 211 and

could include a victim being carjacked while baking in the kitchen).

UNITED STATES V. BALDON 17

1226 (9th Cir. 2017) (emphasis added). This is necessary

because “we must presume that the conviction rested upon

[nothing] more than the least of th[e] acts criminalized.”

Moncrieffe v. Holder, 569 U.S. 184, 190–191 (2013). Here,

the least of the acts criminalized, as shown by the jury

instructions, is carjacking accomplished by fear of injury to

property. 9 Thus, section 215 is not a categorical match to the

elements clause of § 4B1.2(a).

2.

We find that the government’s enumerated offenses

clause argument fails for the same reason: section 215 is not

a categorical match because it encompasses fear of injury to

property.

The government’s argument is based on our decision in

United States v. Velasquez-Bosque, 601 F.3d 955 (9th Cir.

2010), where we held that section 215 is a categorical crime

of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because

carjacking was a match to the combination of generic

robbery and generic extortion under the enumerated offenses

clause. Id. at 959. 10 Our analysis was “largely controlled by

9

The government also relies on United States v. Ramos, 312 F.

App’x 852 (9th Cir. 2009), to support its elements clause argument. That

non-precedential decision relied on United States v. Becerril-Lopez,

541 F.3d 881 (9th Cir. 2008) abrogated by United States v. Bankston,

901 F.3d 1100 (9th Cir. 2018). But our holding in Becerril-Lopez

depended on the enumerated offenses clause analysis. 541 F.3d at 891–

92. We explicitly noted in Becerril-Lopez that California robbery was

not a match for generic robbery under the elements clause of the

Sentencing Guidelines. Id. at 891.

10

We defined general robbery as “aggravated larceny, containing at

least the elements of misappropriation of property under circumstances

involving immediate danger to the person,” and generic extortion as

18 UNITED STATES V. BALDON

our decision in United States v. Becerril-Lopez,” where after

comparing the common elements of sections 215 and 211 we

found that “[t]o the extent that the elements in section 211

are identical to those in section 215, Becerril-Lopez requires

us to reach the conclusion that section 215 is also a crime of

violence because it criminalizes the same or less conduct as

the combination of generic robbery and generic extortion.”

Id. at 958–59. But Becerril-Lopez is no longer good law. See

Bankston, 901 F.3d at 1104 (holding that section 211

robbery is “no longer a categorical match to a combination

of Guidelines-described robbery and extortion” because the

Guidelines’ new extortion definition “does not criminalize

extortion committed by threats to property”).

We find the logic of Bankston equally applicable to

section 215. As we explained in Bankston, the definition of

“generic extortion” changed after the 2016 amendments to

the Sentencing Guidelines, and it no longer includes fear of

injury to property. Id. at 1103–04. Carjacking is thus no

longer a categorical match for generic robbery and extortion.

Velasquez-Bosque’s holding to the contrary is no longer

good law.

This leaves us only to decide whether carjacking

qualifies as a crime of violence under the modified

categorical approach (which, as discussed above, requires a

divisible statute). Here, however, the government does not

contest Baldon’s argument that section 215 is indivisible and

thus concedes the point. See United States v. Peterson,

902 F.3d 1016, 1021 n.2 (9th Cir. 2018). But even if the

government had argued that section 215 is divisible and that

“obtaining something of value from another with his consent induced by

the wrongful use of force, fear, or threats.” Velasquez-Bosque, 601 F.3d

at 958, 959.

UNITED STATES V. BALDON 19

the district court was correct in applying the modified

categorical approach, we would disagree. See United States

v. Dixon, 805 F.3d 1193, 1198–99 (9th Cir. 2015).

A divisible statute “must contain ‘multiple, alternative

elements of functionally separate crimes.’” Id. at 1198

(quoting Rendon v. Holder, 764 F.3d 1077, 1085 (9th Cir.

2014)). Thus, in Dixon we held that section 211 was not

divisible, even though it was disjunctively worded, because

the phrases were “alternative means, not alternative

elements.” Id. So too here. Section 215 contains several

disjunctively worded phrases such as “force or fear,”

“person or immediate presence,” and “permanently or

temporarily.” Cal. Pen. Code § 215. California model jury

instructions for section 215, like those for section 211, see

Dixon, 805 F.3d at 1198, show that these disjunctively

worded phrases are in fact alternative means, not elements.

See Criminal Jury Instructions § 1650 (Jud. Conf. of Cal.

2019). For example, jurors need not agree on whether

defendant “used force or fear”—“a jury can return a guilty

verdict even if some jurors believe the defendant used force

and others believe the defendant used fear.” Id. Thus, section

215, like section 211, is indivisible. Accordingly, the

modified categorical approach is inapplicable. See Brown,

879 F.3d at 1047 n.1.

The district court thus erred in determining Baldon’s

criminal history points and category.

IV.

Baldon next challenges the calculation of his base

offense level based on a two-point enhancement for

possession of a firearm under U.S.S.G. § 2D1.1(b)(1). He

argues there was insufficient evidence that he owned the gun

or was aware of its presence. We disagree.

20 UNITED STATES V. BALDON

A.

We review a district court’s factual finding that U.S.S.G.

§ 2D1.1(b) applies for clear error. United States v. Boykin,

785 F.3d 1352, 1364 (9th Cir. 2015). “Clear error requires a

‘definite and firm conviction that a mistake’ occurred.”

United States v. Gardenhire, 784 F.3d 1277, 1280 (9th Cir.

2015) (quoting United States v. Hinkson, 585 F.3d 1247,

1260 (9th Cir. 2009) (en banc)).

B.

Under U.S.S.G. § 2D1.1(b)(1), the district court must

apply a two-point enhancement if the court finds that “a

dangerous weapon (including a firearm) was possessed”

during the offense. This enhancement “reflects the increased

danger of violence when drug traffickers possess weapons.”

U.S.S.G. § 2D1.1, comment. (n.11). “The government ‘must

prove possession by a preponderance of the evidence before

the court can apply the two-level increase under

§ 2D1.1(b)(1).’” Boykin, 785 F.3d at 1364 (quoting United

States v. Cazares, 121 F.3d 1241, 1244 (9th Cir. 1997)).

Then, “once the government demonstrates that a defendant

possessed a dangerous weapon, . . . the burden of proof is on

the defendant to prove that it is ‘clearly improbable’ that he

possessed a weapon in connection with the offense.” United

States v. Nelson, 222 F.3d 545, 549 (9th Cir. 2000) (citing

United States v. Restrepo, 884 F.2d 1294, 1296 (9th Cir.

1989); U.S.S.G. § 2D1.1(b)(1), comment. (n.3)).

C.

There is no dispute that the firearm was present in the

storage unit in the backpack with Baldon’s drugs. The

contested question is whether Baldon constructively

possessed the firearm. Constructive possession requires “the

UNITED STATES V. BALDON 21

government [to] prove ‘a sufficient connection between the

defendant and the [item] to support the inference that the

defendant exercised dominion and control over [the item].’”

United States v. Terry, 911 F.2d 272, 278 (9th Cir. 1990)

(quoting United States v. Disla, 805 F.2d 1340, 1350 (9th

Cir. 1986)). This is a case-specific inquiry—we ask, looking

at the circumstances of each case, whether there is “such a

nexus or relationship between the defendant and the [item]

that it is reasonable to treat the extent of the defendant’s

dominion and control as if it were actual possession.” Terry,

911 F.2d at 278 (internal quotation marks omitted) (quoting

United States v. Cousins, 427 F.2d 382, 384 (9th Cir. 1970)).

Here, the government introduced evidence that Baldon

entered the storage unit, stored his drugs in the unit, and paid

cash in person to extend the lease. The government also

stated that the gun was in the same backpack as the drugs,

and ammunition matching the firearm was found in his

residence 11 contemporaneously with the search of the

storage unit. Based on the evidence presented, we find that

the district court did not clearly err in finding by a

preponderance of the evidence that Baldon possessed the

firearm found in the storage unit. 12

Baldon, relying on a line of cases beginning with United

States v. Kelso, 942 F.2d 680 (9th Cir. 1991), argues that this

11

The ammunition match is additional evidence. But, there is more

than enough evidence in the record, without the ammunition match, to

support the district court’s implicit finding that Baldon constructively

possessed the gun.

12

While admittedly the record could be clearer, at oral argument and

in the briefs Baldon conceded that the district court did make a finding.

See Oral Argument at 18:35–18:50, Baldon v. United States, No. 18-

10411 (9th Cir. Nov. 13, 2019).

22 UNITED STATES V. BALDON

evidence was insufficient to infer constructive possession.

We disagree.

In Kelso we held that mere access to a weapon was

insufficient evidence of dominion or control. Id. at 682.

There, the defendant was a passenger in a car that contained

drugs and a loaded weapon in a bag behind the driver’s seat.

Id. The defendant and the driver/owner of the car admitted

they knew about the drugs, but each argued that it was the

other’s drugs, and both denied knowledge of the gun. Id. at

681.

In Cazares, we extended our holding in Kelso to homes

and held that mere access to weapons in a room not occupied

by the defendant could not establish “possession or

dominion.” 121 F.3d at 1245–46. Defendant was living in an

apartment with at least three other people and was found to

have possessed firearms located in one of the bedrooms. We

explained that possession cannot be determined by “pure

speculation” and concluded that merely being one of several

residents in an apartment that contained firearms was not

enough to support a finding of constructive possession. 13 Id.

at 1245.

In United States v. Highsmith, we found that evidence

that defendant had access to and sold drugs from his cohort’s

bedroom did not impute knowledge to him about a firearm

in the bedroom. 268 F.3d 1141, 1142 (9th Cir. 2001).

Kelso, Cazares, and Highsmith reflect our long history

of “carefully preserv[ing] the requirement that the

13

We specifically noted that the government did not “even prove

that the guns were found in the bedroom occupied by [defendant].”

Cazares, 121 F.3d at 1245.

UNITED STATES V. BALDON 23

government demonstrate sufficient indicia of dominion and

control to support the inference of constructive possession.”

United States v. Disla, 805 F.2d 1340, 1351 (9th Cir. 1986).

The government cannot rely only on evidence of “mere

proximity” to the contraband, “mere presence on the

property where it is located, or mere association, without

more, with the person who does control the [contraband] or

the property . . . .” Id. But this is not a case of mere presence

or proximity, and thus this case is not governed by Kelso.

Baldon is not a mere passenger in a car, a roommate in a

house where guns are found, or a roommate dealing drugs

from a cohort’s bedroom. The government proved that

Baldon used the storage unit and that he had dominion and

control—he stored his drugs in the backpack where the gun

was found, in the unit he paid for. 14 And unlike in Highsmith,

ammunition matching the type of gun in the storage unit was

contemporaneously found in Baldon’s residence. Most

importantly, in Kelso, the defendant denied owning the drugs

and there was another person physically present at the time

of the arrest—creating the equally likely background

inference that the gun was the driver’s rather than the

defendant’s. Here though, Baldon admitted it was his drugs

and does not argue that Angelique Baker physically accessed

the unit; only that there was a possibility. That is not Kelso,

Cazares, or Highsmith.

14

The Presentence Investigation Report states that it was Baldon’s

storage unit. Because Baldon did not affirmatively contest this portion

of the report, the district court could have relied on this statement alone

in finding that Baldon possessed the firearm. See Fed. R. Crim. P.

32(i)(3)(A).

24 UNITED STATES V. BALDON

V.

Because we conclude that the district court incorrectly

calculated Baldon’s criminal history by improperly

including two points for his prior carjacking convictions, we

vacate and remand for resentencing. 15

AFFIRMED in part, VACATED in part and

REMANDED.

15

Because we remand based on a procedural error, we decline to

consider Baldon’s argument that the sentence was substantively

unreasonable. See United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir.

2006) (“If there was material error in the Guidelines calculation, we will

remand for resentencing, without reaching the question of whether the

sentence as a whole is reasonable.”).