United States v. Eric Woodberry

U
                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 19-30225
                 Plaintiff-Appellee,
                                             D.C. No.
                 v.                       2:18-cr-00049-
                                              RAJ-2
ERIC HENRY WOODBERRY,
            Defendant-Appellant.


UNITED STATES OF AMERICA,                 No. 19-30284
                 Plaintiff-Appellee,
                                             D.C. No.
                 v.                       2:18-cr-00049-
                                              RAJ-1
BRADFORD MARSELAS JOHNSON,
           Defendant-Appellant.             OPINION

      Appeal from the United States District Court
        for the Western District of Washington
       Richard A. Jones, District Judge, Presiding

       Argued and Submitted November 17, 2020
                 Seattle, Washington

                Filed February 11, 2021
2               UNITED STATES V. WOODBERRY

    Before: Ronald M. Gould and Michelle T. Friedland,
    Circuit Judges, and Stephen R. Bough, * District Judge.

                    Opinion by Judge Gould


                          SUMMARY **


                          Criminal Law

    The panel affirmed the district court in a case in which a
jury (1) found Eric Woodberry and Bradford Johnson, who
were arrested for robbing a licensed marijuana dispensary in
Washington State, guilty of Hobbs Act robbery under
18 U.S.C. § 1951(a) and (b)(1); (2) separately found
Johnson guilty of possession of a firearm in furtherance of a
crime of violence and a drug trafficking crime under
18 U.S.C. § 924(c)(1)(A)(ii)); (3) convicted Woodberry, as
Johnson’s accomplice, of aiding and abetting Johnson’s
firearm possession offense; and (4) found that Johnson used
a short-barreled rifle during the robbery in violation of
18 U.S.C. § 924(c)(1)(B)(i), which resulted in both
defendants having their mandatory minimum sentences
increased.

    Rejecting Johnson’s arguments regarding the district
court’s jury instruction for the Hobbs Act robbery charge,
the panel held that the district court did not err in instructing:

     *
     The Honorable Stephen R. Bough, United States District Judge for
the Western District of Missouri, sitting by designation.
    **
       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. WOODBERRY                    3

(1) that the “market for marijuana, including its intrastate
aspects, is commerce over which the United States has
jurisdiction,” and (2) that the “commerce” element of a
Hobbs Act robbery could be established if the robbery
“could” affect commerce over which the United States has
jurisdiction.

     As to the district court’s jury instruction regarding the
short-barreled rifle provision in § 924(c)(1)(B)(i), the panel
first clarified that the provision, which requires an increase
in a defendant’s minimum sentence, is not a sentencing
“enhancement” but an essential element that must be proven
to a jury beyond a reasonable doubt. The panel then held
that § 924(c)(1)(B)(i) requires no showing of mens rea as to
the rifle barrel’s length to sustain a conviction.

   The panel noted that Woodberry’s argument that Hobbs
Act robbery cannot serve as a predicate “crime of violence”
under 18 U.S.C. § 924(c) is foreclosed by United States v.
Dominguez, 

954 F.3d 1251

(9th Cir. 2020).


                        COUNSEL

Michael Nance (argued), Bainbridge Island, Washington, for
Defendant-Appellant Eric Henry Woodberry.

Suzanne Lee Elliott (argued), Seattle, Washington, for
Defendant-Appellant Bradford Marselas Johnson.

Erin H. Becker (argued), Assistant United States Attorney;
Brian T. Moran, United States Attorney; United States
Attorney’s Office, Seattle, Washington; for Plaintiff-
Appellee.
4              UNITED STATES V. WOODBERRY

                          OPINION

GOULD, Circuit Judge:

    Eric Woodberry (“Woodberry”) and Bradford Johnson
(“Johnson”) (collectively, “Defendants”) were arrested for
robbing a licensed marijuana dispensary in Washington
State. A jury found them both guilty of Hobbs Act robbery
under 18 U.S.C. § 1951(a) and (b)(1). The jury separately
found Johnson guilty of possession of a firearm in
furtherance of a crime of violence and a drug trafficking
crime under 18 U.S.C. § 924(c)(1)(A)(ii). As Johnson’s
accomplice, Woodberry was convicted of aiding and
abetting Johnson’s firearm possession offense. Finally, both
Defendants had their mandatory minimum sentences
increased after the jury found that Johnson used a short-
barreled rifle during the robbery in violation of 18 U.S.C.
§ 924(c)(1)(B)(i). 1 Defendants appeal their convictions
based on what they contend were erroneous jury
instructions.

   We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a). We affirm.

                               I

    On November 21, 2017, two armed and disguised men
walked into a licensed marijuana dispensary in Washington
State. They ordered the employees at gunpoint to hand over
cash and garbage bags filled with marijuana. Unbeknownst
to the two robbers, however, the dispensary owner was
monitoring the store on a live surveillance feed. He called

    1
      Johnson and Woodberry were also charged with various other
offenses, none of which are relevant for purposes of this appeal.
              UNITED STATES V. WOODBERRY                    5

the police, who quickly arrived at the dispensary. The
robbers made their getaway through a back door, leaving
most of their haul behind.

    Police arrested Defendants several hours later. Store
employees later identified Defendants as the two men who
had robbed the store. Though neither Defendant was armed
upon arrest, Johnson was later linked to one of the weapons
believed to have been used in the robbery: an MG Industries,
model Marck-15, 7.62x39 rifle. Woodberry’s gun was never
recovered.

     A grand jury indicted Defendants in 2018 and issued a
superseding indictment one year later. Three of those
charges are relevant here. First, Defendants were both
charged with Hobbs Act robbery, in violation of 18 U.S.C.
§ 1951(a) and (b)(1). Second, Johnson was separately
charged with possessing and “brandishing” a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). Woodberry, in turn, was charged with
aiding and abetting Johnson’s firearm offense. Third,
Defendants were charged under 18 U.S.C. § 924(c)(1)(B)(i),
which increases a defendant’s mandatory minimum sentence
if the defendant used a short-barreled rifle to commit a crime
of violence. A short-barreled rifle is defined as a rifle
“having one or more barrels less than sixteen inches in
length.” 18 U.S.C. § 921(a)(8).

    In pretrial proceedings, the district court issued a jury
instruction for the Hobbs Act robbery charge, which stated
that the jury had to find that the robbery “affected or could
have affected commerce over which the United States has
jurisdiction.” The instruction also defined “commerce”
broadly:
6             UNITED STATES V. WOODBERRY

           The market for marijuana, including its
       intrastate aspects, is commerce over which
       the United States has jurisdiction.

           It is not necessary for the government to
       prove that the defendant knew or intended
       that his conduct would affect commerce; it
       must prove only that the natural
       consequences of his conduct affected
       commerce in some way. Also, you do not
       have to find that there was an actual effect on
       commerce. The government must show only
       that the natural result of the offense would be
       to cause an effect on commerce to any
       degree, however minimal or slight.

    With respect to the short-barreled rifle charge, the
district court instructed the jury that it could find the
Defendants guilty if the Government proved that the barrel
of Johnson’s rifle a barrel was less than sixteen inches long.
The district court omitted, over objections from both
Defendants, any requirement that the jury find that
Defendants knew that the barrel of Johnson’s rifle was
shorter than sixteen inches.

    After a trial, the jury found Defendants guilty on all of
these charges. Defendants appealed, arguing that their
convictions were based on faulty jury instructions.

                             II

   We review questions of statutory interpretation de novo.
United States v. Jefferson, 

791 F.3d 1013

, 1015 (9th Cir.
2015). Likewise, “[w]hether a jury instruction misstates the
law, an element of the crime, or the burden of proof is
              UNITED STATES V. WOODBERRY                   7

similarly subject to de novo review.” United States v. Doe,

705 F.3d 1134

, 1143 (9th Cir. 2013).

                             III

                              A

    Johnson asserts that the district court erred in its jury
instruction for the Hobbs Act (the “Act”) robbery charge.
The Act provides, in relevant part:

       Whoever in any way or degree obstructs,
       delays, or affects commerce or the movement
       of any article or commodity in commerce, by
       robbery or extortion or attempts or conspires
       so to do, or commits or threatens physical
       violence to any person or property in
       furtherance of a plan or purpose to do
       anything in violation of this section shall be
       fined under this title or imprisoned not more
       than twenty years, or both.

18 U.S.C. §1951(a).        In addition, the Act defines
“commerce” as:

       [C]ommerce within the District of Columbia,
       or any Territory or Possession of the United
       States; all commerce between any point in a
       State, Territory, Possession, or the District of
       Columbia and any point outside thereof; all
       commerce between points within the same
       State through any place outside such State;
       and all other commerce over which the
       United States has jurisdiction.

18 U.S.C. § 1951(b)(3).
8             UNITED STATES V. WOODBERRY

     Johnson contends that the district court erred in
instructing the jury that the “market for marijuana, including
its intrastate aspects, is commerce over which the United
States has jurisdiction.” He further contends that the district
court erred in instructing the jury that he could be found
guilty under the Hobbs Act if the robbery “could have”
affected commerce over which the United States has
jurisdiction. Johnson argues that the instruction should have
required the jury to find that the crime actually did obstruct,
delay, or affect commerce.

    We disagree with both arguments. In Taylor v. United
States, the Supreme Court reaffirmed Congress’ authority to
regulate the national market for marijuana, including
conduct that “even in the aggregate, may not substantially
affect commerce.” 

136 S. Ct. 2074

, 2080–81 (2016). The
Court held that “a robber who affects or attempts to affect
even the intrastate sale of marijuana grown within the States
affects or attempts to affect commerce over which the United
States has jurisdiction.”

Id. at 2080.

The Court also
explained that “proof that the defendant’s conduct in and of
itself affected or threatened commerce is not needed.”

Id. at 2081.

“All that is needed is proof that the defendant’s
conduct fell within a category of conduct that, in the
aggregate, had the requisite effect.”

Id. Johnson contends that

Taylor is inapposite because
there, the Court’s holding was expressly limited to “cases in
which the defendant targets drug dealers for the purpose of
stealing drugs or drug proceeds.”

Id. at 2082.

Johnson relies
on the Court’s statement in Taylor that its holding was
cabined to the facts before it.

Id. (“We do not

resolve what
the Government must prove to establish Hobbs Act robbery
where some other type of business or victim is targeted.”).
              UNITED STATES V. WOODBERRY                      9

    We reject Johnson’s unreasonably narrow interpretation.
Taylor is binding because we see no meaningful
difference—at least for purposes of determining Congress’
Commerce Clause powers—between the drug dealer in
Taylor and the licensed marijuana dispensary in this case.
Because both are involved in the market for marijuana, it is
clear to us that a robbery of a licensed marijuana dispensary
falls within the same category of conduct that the Court
addressed in Taylor. Regardless of the fact that some states
have legalized marijuana for purposes of their state laws, the
sale of this substance affects the interstate market for it. Cf.
Gonzales v. Raich, 

545 U.S. 1

, 8–9 (2005) (holding that
Congress’s power to regulate interstate markets
encompasses intrastate markets for marijuana that is
produced and consumed locally and in compliance with state
laws).

    Relatedly, Johnson is wrong that the jury instructions
amounted to a directed verdict on the “commerce” element.
As Taylor made clear, Congress may regulate robberies that
only affect intrastate commerce so long as they “are part of
an economic ‘class of activities’ that have a substantial effect
on interstate commerce.” 

Taylor, 136 S. Ct. at 2080

(quoting

Raich, 545 U.S. at 17

). The district court’s jury instruction
was not a directed verdict on the “commerce” element
because it delineated the scope of “commerce over which the
United States has jurisdiction,” 18 U.S.C. § 1951(b)(3),
consistent with what the Court held in Taylor. Indeed, the
district court’s instruction quoted directly from Taylor.

Id. (“Under Raich, the

market for marijuana, including its
intrastate aspects, is commerce over which the United States
has jurisdiction.” (quotation marks omitted)). That purely
legal determination did not strip the jury of the ability to
resolve the factual disputes underlying the charges: whether
10              UNITED STATES V. WOODBERRY

the dispensary engaged in marijuana-related commerce and
whether Defendants robbed the dispensary.

    We therefore hold that the district court did not err in
instructing the jury: (1) that the “market for marijuana,
including its intrastate aspects, is commerce over which the
United States has jurisdiction,” and (2) that the “commerce”
element of a Hobbs Act robbery could be established if the
robbery “could” affect commerce over which the United
States has jurisdiction.

                                  B

    Defendants also challenge the district court’s jury
instruction regarding the short-barreled rifle provision in
§ 924(c)(1)(B)(i). 2 They argue that because the short-
barreled rifle provision contains a mens rea requirement, the
district court should have instructed the jury to convict only
if Defendants knew that the rifle barrel was less than sixteen
inches long. We disagree.

                                   1

    Before reaching this issue, however, we address a matter
that requires clarification. Throughout this appeal, the
Government has repeatedly referred to the short-barrel
provision in § 924(c)(1)(B)(i) as a sentencing
“enhancement,” rather than an element.


     2
      Woodberry separately argues that Hobbs Act robbery cannot serve
as a predicate “crime of violence” for a conviction under 18 U.S.C.
§ 924(c). His argument is foreclosed, however, by our decision in United
States v. Dominguez, 

954 F.3d 1251

, 1261 (9th Cir. 2020) (“We reaffirm
that Hobbs Act robbery is a crime of violence under 18 U.S.C.
§ 924(c)(3)(A) . . . .”).
                 UNITED STATES V. WOODBERRY                           11

    In Alleyne v. United States, the Court held that “[a]ny
fact that, by law, increase[s] the penalty for a crime is an
‘element’ that must be submitted to the jury and found
beyond a reasonable doubt.” 

570 U.S. 99

, 103 (2013). Here,
the short-barrel provision requires an increase in a
defendant’s minimum sentence. 18 U.S.C. § 924(c)(1)(B)(i)
(“If the firearm possessed by a person convicted of a
violation of this subsection . . . is a short-barreled rifle . . .
the person shall be sentenced to a term of imprisonment of
not less than 10 years.”). Applying the categorical rule set
forth in Alleyne, 3 we hold that the short-barrel provision in
§ 924(c)(1)(B)(i) is an essential element that must be proven
to a jury beyond a reasonable doubt.

    We note that this distinction is somewhat semantic
because here, the district court properly put to the jury the
question of whether the barrel of Johnson’s rifle was less
than sixteen inches in length. Nonetheless, because we and
the Supreme Court have referred to facts that increase
mandatory minimum penalties as sentencing enhancements
in the past, see, e.g., Dean v. United States, 

556 U.S. 568

(2009); United States. v. McDuffy, 

890 F.3d 796

(9th Cir.
2018), we so hold to remove any possibility of confusion and
to reflect the Supreme Court’s holding in Alleyne.




    3
       In his briefing, Johnson relied heavily on the Supreme Court’s
decision in United States v. O’Brien, in which the Court applied a multi-
factor test to determine whether Congress intended for the “machinegun
provision” of § 924(c)(1)(B)(ii) to be an element of the offense. 

560 U.S. 218

, 225–26, 230 (2010). Although our decision today is consistent with
O’Brien, that case has been rendered obsolete by Alleyne, so we need not
apply that multi-factor analysis.
12            UNITED STATES V. WOODBERRY

                              2

    Having established that the short-barrel provision is an
essential element, we decide whether its application to
Defendants requires a showing of mens rea. In other words,
did the Government have to show that Woodberry and
Johnson knew that the rifle was a short-barreled rifle? We
hold that it did not, because § 924(c)(1)(B)(i) contains no
mens rea requirement.

    The Supreme Court’s decision in Dean v. United States,

556 U.S. 568

, guides our analysis. In Dean, the Court
considered a slightly different but adjoining provision in
§ 924, which increases the mandatory minimum sentence
imposed for “crime of violence” offenses involving a
“firearm [that] is discharged.” 18 U.S.C. § 924(c)(1)(A)(iii).
As a whole, the provisions in subsection (A), which houses
the “discharge” provision, increase the mandatory minimum
sentence for an offense depending on whether the firearm is
possessed, brandished, or discharged, respectively:

       [A]ny person who, during and in relation to
       any crime of violence or drug trafficking
       crime . . . uses or carries a firearm, or who, in
       furtherance of any such crime, possesses a
       firearm, shall, in addition to the punishment
       provided for such crime of violence or drug
       trafficking crime—

       (i) be sentenced to a term of imprisonment of
       not less than 5 years;

       (ii) if the firearm is brandished, be sentenced
       to a term of imprisonment of not less than
       7 years; and
              UNITED STATES V. WOODBERRY                     13

       (iii) if the firearm is discharged, be sentenced
       to a term of imprisonment of not less than
       10 years.

18 U.S.C. § 924(c)(1)(A).

    In determining whether the discharge provision
contained a mens rea requirement, the Court looked to
several factors. First, the Court considered the language of
the statute and noted that it was phrased in the passive voice.
The Court observed that “[t]he passive voice focuses on an
event that occurs without respect to a specific actor, and
therefore without respect to any actor’s intent or
culpability.” 

Dean, 556 U.S. at 572

(citing Watson v. United
States, 

552 U.S. 74

, 81 (2007)). This suggested that
Congress did not intend to include a mens rea requirement.

Id. Second, the Court

looked to the overarching structure of
§ 924(c)(1)(A), and stressed that Congress “expressly
included an intent requirement” for subsection (A)(ii), which
is listed right before the discharge provision at issue in Dean
and imposes heightened penalties for “brandishing” a
firearm.

Id. at 572–73.

The discharge provision, by contrast,
contained no such language. The Court remarked that
“where Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”

Id. at 573

(quoting Russello v. United States, 

464 U.S. 16

, 23 (1983)).

   Finally, the Court reasoned that mens rea was not
required because the discharge provision penalizes
consequences of already unlawful acts.

Id. at 572–77.

Applying these factors, the Court held that the “discharge”
14            UNITED STATES V. WOODBERRY

provision in § 924(c)(1)(A)(iii) required no separate proof of
intent.

Id. at 577.

    Here, the short-barrel rifle element is housed in the
subsection immediately following the discharge provision in
Dean, see 18 U.S.C. § 924(c)(1), so the Court’s reasoning in
that case is particularly instructive here. While subsection
(A)—the broader subsection at issue in Dean—imposes
heightened penalties based on the way in which a gun is used
in committing a crime of violence, subsection (B) increases
a defendant’s sentence based on the type of weapon she or
he uses:

       (B) If the firearm possessed by a person
       convicted of a violation of this subsection—

       (i) is a short-barreled rifle, short-barreled
       shotgun, or semiautomatic assault weapon,
       the person shall be sentenced to a term of
       imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(B)(i).

     Like the provision at issue in Dean, the short-barrel
element is silent with respect to a knowledge requirement
and is phrased in the passive voice. See

id. § 924(c)(1)(B)(i). This

suggests that Congress did not intend to include a mens
rea requirement. Subsection (B)(i) merely asks whether the
rifle used in the robbery “is a short-barreled rifle”; it does
not specify any requirement that the defendant knew the
rifle’s exact characteristics.

    The structure of § 924(c)(1) also suggests that the short-
barreled provision does not contain a mens rea requirement.
As the Court noted in Dean, the fact that the “brandish”
provision in subsection (A)(ii) contains a mens rea
              UNITED STATES V. WOODBERRY                   15

requirement suggests that if Congress had intended for the
short-barreled provision to require some showing of intent,
then Congress would have expressly included that
requirement.

    Defendants nonetheless urge us to depart from Dean and
instead follow the Supreme Court’s holding in Staples v.
United States, 

511 U.S. 600

(1994). In Staples, the
defendant was convicted under 26 U.S.C. § 5861(d), which
imposes up to ten years of imprisonment for possessing an
unregistered automatic gun.

Id. at 602–03.

The Court
applied a longstanding presumption that when a criminal
statute is entirely silent as to the mens rea required for an
offense, courts will assume Congress did not intend to
“dispense with a conventional mens rea element, which
would require that the defendant know the facts that make
his conduct illegal.”

Id. at 605.

Moreover, the Court inferred
that Congress would not have intended to impose such a
harsh penalty on defendants who were unaware they were
violating the law.

Id. at 618.

    We recently observed that this presumption applies
where a criminal statute is “entirely silent on the mens rea
required for a criminal offense,” particularly “when a
different reading would have the effect of criminalizing ‘a
broad range of apparently innocent conduct.’” United States
v. Collazo, — F.3d —, 

2021 WL 129792

at *10 (9th Cir.
2021) (en banc) (quoting United States v. X-Citement Video,

513 U.S. 64

, 71 (1994)). That is not the case here.

    First, as the Court recognized in Dean, § 924(c)(1) is not
entirely silent on the mens rea required to support a
conviction. Second, reading a mens rea requirement into the
statute is not necessary to distinguish between wrongful and
otherwise innocent acts. As we explained in Collazo, the
mens rea presumption does not apply to elements that do not
16            UNITED STATES V. WOODBERRY

separate innocent from wrongful conduct.

Id. at *13

(“Once
a defendant knowingly or intentionally violates federal law,
‘it is not unusual to punish individuals for the unintended
consequences of their unlawful acts.’” (quoting 

Dean, 556 U.S. at 575

)).

     The short-barreled rifle provision is one such element.
We see no reason to apply the mens rea presumption here,
in part because the statute in question does not penalize
“entirely innocent” conduct. Rehaif v. United States, 139 S.
Ct. 2191, 2197 (2019). Under § 924(c)(1), the short-barrel
rifle provision applies only when the defendant is guilty of
an underlying crime. Although Johnson’s use of a short-
barrel rifle must be proved for the mandatory minimum in
§ 924(c)(1)(B)(i) to apply, that predicate fact “do[es] not
criminalize otherwise innocent conduct, because the
underlying conviction does not depend on the presence or
absence of the predicate fact.” 

McDuffy, 890 F.3d at 801

.
Indeed, Defendants were found “guilty of unlawful conduct
twice over” before the jury ever considered whether the
firearm was a short-barreled rifle. 

Dean, 556 U.S. at 576

.

     At its core, this case calls for no more than a
straightforward application of Dean.           We hold that
§ 924(c)(1)(B)(i) requires no showing of mens rea as to the
rifle barrel’s length to sustain a conviction.

                              C

    We hold that the district court did not err in instructing
the jury that the “market for marijuana, including its
intrastate aspects, is commerce over which the United States
has jurisdiction,” or the “commerce” element of Hobbs Act
robbery could be established if the robbery “could” affect
commerce over which the United States has jurisdiction.
Finally, we hold that the short-barreled element in
            UNITED STATES V. WOODBERRY             17

§ 924(c)(1)(B)(i) does not contain a separate mens rea
requirement.

   AFFIRMED.

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