FILED

NOT FOR PUBLICATION

MAY 01 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10163

Plaintiff-Appellee, D.C. No. 1:15-cr-00265-DAD-

BAM-1

v.

JUSTIN WHITTINGTON, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Argued and Submitted April 13, 2018 San Francisco, California

Before: KLEINFELD, W. FLETCHER, and TALLMAN, Circuit Judges.

Defendant-Appellant Justin Whittington appeals his conviction for use of a

firearm during a crime of violence. 18 U.S.C. § 924(c)(1)(A). We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Whittington argues that interference with housing rights under 42 U.S.C.

3631 is not categorically a “crime of violence” within the meaning of 18 U.S.C.

§ 924(c)(3) and that his § 924(c) conviction must therefore be set aside. Because

Whittington failed to object to the use of his § 3631 conviction as a predicate crime

for his § 924(c) conviction, we review for plain error. See United States v.

Gonzales-Aparicio, 663 F.3d 419, 426 (9th Cir. 2011). Under the plain error

standard, we affirm the district court unless (1) there has been an error in the

proceedings below; (2) that error is plain; (3) it affected substantial rights; and (4)

it seriously affected the fairness, integrity, or public reputation of judicial

proceedings. United States v. Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011).

A crime of violence is either (1) an offense that “has 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); or (2) an offense “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)(B). Under the first

definition, the force required by the statute must rise to the level of “violent force.”

Johnson v. United States, 559 U.S. 133, 140 (2010); United States v. Watson, 881

F.3d 782, 785 (9th Cir. 2018) (“[T]he Johnson standard also applies to the

similarly worded force clause of § 924(c)(3)(A).”) (citing United States v.

2 Gutierrez, 876 F.3d 1254, 1256 (9th Cir. 2017), cert denied, No. 17-8169, 2018

WL 1411915 (U.S. Apr. 23, 2018)).

A conviction under § 3631 requires that the government prove that the

defendant used force or threatened to use force. 42 U.S.C. § 3631. Whittington has

not produced any case in which the statute was applied to a defendant that used or

threatened force that did not rise to the level of violent force. Further, the statutory

section under which Whittington was convicted requires proof that the “acts

include[d] the use, attempted use, or threatened use of a dangerous weapon.” 42

U.S.C. § 3631. Accordingly, we hold that Whittington has not established that the

district court committed plain error when it instructed the jury that § 3631 is a

crime of violence.

Because we conclude that the district court did not commit plain error to the

extent that it relied upon 18 U.S.C. § 924(c)(3)(A), we do not reach Whittington’s

argument that § 924(c)(3)(B) is void for vagueness.

Whittington’s challenge to his sentence is duplicative of his substantive

challenge to his § 924(c) conviction, and fails for the same reasons.

AFFIRMED.

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