[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 10172 Non

- Argument Calendar

________________________ D.C. Docket No s . 1:16

- cv - 02392

- TWT ; 1:10

- cr - 003 05

- TWT

- RGV

- 1

IRMA OVALLES, Petitioner

- Appellant,

versu s UNITED STATES OF AMERICA, Respondent

- Appellee.

________________________ Appeal from the United States District Court for the Northern District of Georgia

_________ _______________ (O c tober 9, 2018) Before TJOFLAT , WILLIAM PRYOR and HULL , Circuit Judges. PER CURIAM :

Case: 17-10172 Date Filed: 10/09/2018 Page: 1 of 152 The en banc Court remanded this appeal to the panel for further proceedings. Ovalles v. United States , ___ F.3d ____, 2018 WL 4830079 , at *18 ( 11th Cir. Oct

. 4 , 2018) ( Ovalles II )

. I n 2017, our initial panel opinion affirmed the district court’s denial of Irma Ovalles’s 28 U.S.C. § 2255 motion to vacate her 18 U.S.C. § 924(c) conviction and sentence for using and carrying a firearm during a crime of violence, namely, attempted carjacking

. Ovalles v. United States , 861 F.3d 1257, 1267

- 69 (11th Cir. 2017) ( Ovalles I )

. The panel opinion held that Ovalles’s attempted carjacking conviction qualified as a crime of violence under both § 924(c)(3)(B)’s residual clause and § 924(c)(3)(A)’s elements clause

. Id. After Sessions v. Dimaya , 584 U.S. ___, 138 S. Ct. 1204 (2018), this Court vacated the panel opinion and took the case en banc

. T he Court en banc then held that: (1) § 924(c)(3)(B) ’s residual clause is not unconstituti onally vague ; (2) we determine whether a p redicate offense qualifies under that residual clause by using a conduct

- based approach ; and (3) give n the admitted conduct, Ovalles’s attempted carjacking conviction qualifie s under § 924(c)(3)(B) ’s residual clause

. Ovalles , ___ F.3d at ____, 2018 WL 4830079 , at * 1

- 2, 11

- 18

. The en banc Ovalles II decision remanded this appeal to the panel to decide all other issues . We now do so by reinstating our ruling in Ovalles I insofar as it held that Ovalles’s attemp ted carjacking conviction qualifies as a crime of violence

Case: 17-10172 Date Filed: 10/09/2018 Page: 2 of 153 under § 924(c)(3)(A)’s elements clause

. We summarize what Ovalles I said and include additional analysis along the way. I. BACKGROUND In a 2010 written plea agreement , Ovalles pled guilty to six crimes: (1) a Hobbs Act robbery ; (2) three carjacking s; (3) an attempted carjacking ; and (4) using and carrying a firearm during th at attempted carjacking

. 1 At the plea hearing, t he government ’ s factual proffer , which Ovalles admitted, detail ed how Ovalles and others committed at gunpoint a robbery , three carjackings , and an attempted carjacking between December 12, 2008 and December 14, 2008. O nly the attempted carjacking and the firearm crime during that carjacking are relevant to this appeal

. As to those counts, t he presentence investigation report (“ PSI ”) reported , as did the government’s factual proffer, that on December 14, 2008, Ovalles and other gang members stopped a minivan by displaying firearms. The robbers ordered the d river and his daughter out of the vehicle . O ne robber hit the daughter with a baseball bat. The y took the victims’ money and cell phones at gunpoint

. A s the victims ran away , one robber fired several rounds from an AK

- 47 rifle in their direction. When a bystander fired back at the robbers, they fled in a

1 The parties dispute whether Ovalles ’s appeal of the denial of her § 2255 motion is barred by the limited appeal waiver in her plea agreement. Because Ovalles’s appeal lacks merit in any e vent, we need not reach the appeal waiver issue.

Case: 17-10172 Date Filed: 10/09/2018 Page: 3 of 154 pick

- up truck

. Our en banc opinion recounts Ovalles’s crimes in more detail. Ovalles II , ___ F.3d at ___; 2018 WL 4830079 , at *2

- 3. The PSI grouped the robbery , the three carjacking s , and the attempted carjacking , yielding an advisory guidelines range of 108 to 135 months’ imprisonment. As to the § 924(c) firearm crime , Ovalles’s advisory guidelines
sentence was a consecutive ten years’ imprisonment , the statutory minimum

. Without objection, the district court adopt ed the PSI’s facts and guidelines calculations. The district court imposed 108

- month concurrent sentence s on Ovalles’s robbery , three carjacking s, and attempted carjacking and a 120

- month consecutive sentence on her § 924(c) firearm c rime

. Ovalles did not appeal. In 2016, Ovalles pro se filed her § 2255 motion to vacate her § 924(c) conviction and sentence. After the court appointed counsel, Ovalles filed an amended § 2255 motion , which t he district court den ied. Ovalles timely appealed. II. DISCUSSION Section 924(c) provides for a mandatory consecutive sentence for any defendant who uses or carries a firearm during a crime of violence

. 18 U.S.C. § 924(c)(1). “ C rime of violence” means an 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

. Case: 17-10172 Date Filed: 10/09/2018 Page: 4 of 155 Id. § 924(c)(3)(A), (B). W e refer to § 924(c)(3)(A) as the “ elements clause. ” W e apply the categorical approach to decide whether a predicate conviction satisfie s th e elements

- clause definition. See, e.g. , United States v. McGuire , 706 F.3d 1333, 1336 (11th Cir. 2013). In doing so, we must presume t hat the conviction rested upon nothing more than the least of the acts criminalized and then determine whether even those acts qualify as crimes of vi olence. See Moncrieffe v. Holder , 569 U.S. 184, 190

- 91, 133 S. Ct. 1678, 1684 (2013)

. We look only to the statutory elements of Ovalles’s attempted carjacking conviction,
not to t he particular facts underlying that conviction

. See Descamps v. United States , 570 U.S. 254, 260

- 61, 133 S. Ct. 2276, 2283 (2013). We thus turn to the carjacking statute. The carjacking statute, 18 U.S.C. § 2119, provides in relevant part: Whoever, with the intent to cause death or serious bodily harm takes a motor vehicl e 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 , shall

-- (1) be fined under this title or imprisoned not more than 15 years, or both. 18 U.S.C. § 2119(1). The § 2119 statute itself prohibits both the taking of the vehicle and the attempt to do so. See id. To convict a defendant of carjacking, the government must prove that the defendant: (1) with the intent to cause dea th or serious bodily harm ; (2) took, or

Case: 17-10172 Date Filed: 10/09/2018 Page: 5 of 156 attempted to take, a motor vehicle ; (3) that had been transported, shipped, or received in interstate or foreign commerce ; (4) from the person or presence of another ; (5) by force and violence or intimidation

. Unite d States v. Diaz , 248 F.3d 1065, 1096 (11th Cir. 2001). The intent element of the carjacking offense is satisfied if “at the moment the defendant demanded or took control of the driver’s automobile the defendant possessed the intent to seriously harm or k ill the driver if necessary to steal the car.” Holloway v. United States , 526 U.S. 1, 12 , 119 S. Ct. 966, 972 (1999). The defendant’s intent is judged objectively from the actor’s visible conduct and what the victim might reasonably conclude. United States v. Fulford , 267 F.3d 1241, 1244 (11th Cir. 2001). T his Court already has held that a § 2119 carjacking offense meet s the requirements of § 924(c)(3)(A)’s elements clause

. In re Smith , 829 F.3d 1276, 1280 (11th Cir. 2016) ; United States v. Moore , 4 3 F.3d 568, 572

- 73 (11th Cir. 1994) (“The term ‘crime of violence’ as Congress defined it in 18 U.S.C. § 924(c)(3) clearly includes carjacking. ‘Tak[ing] or attempt[ing] to take by force and violence or by intimidation,’ 18 U.S.C. § 2119, encompasses ‘the use, attempted use, or threatened use of physical force . . . .’ 18 U.S.C. § 924(c)(3)(A).”). As this Court explained, “an element requiring that one take or attempt to take by force and violence or by intimidation, which is what the federal carjacking statute does, satisfies the force clause of § 924(c), which requires the

Case: 17-10172 Date Filed: 10/09/2018 Page: 6 of 157 use, attempted use, or threatened use of physical force.” In re Smith , 829 F.3d at 1280 (footnote omitted) . In so holding, th e In re Smith panel followed our prior precedent in Moor e . Id. A . Carjacking is Categorically a Crime of Violence Ovalles’s first contention on appeal is that our precedent is erroneous

. Although bound by that precedent, we explain why Moore and In re Smith are correctly decided. O ur inquiry under the categorical approach ask s not only whether carjacking “by force and violence” qualifies, which it patently does, but also whether the taking of a vehicle from a person “ by intimidation” qualifies, too. T he term “ by intimidation” in t he carjacking statute cannot be read in isolation, but must be considered along with the requisite intent, which means the intimidatin g act was conducted “with the intent to cause death or serious bodily harm .” 18 U.S.C. § 2119(1). Given th at required sp ecialized intent, the carjacker’s intimidating conduct must be to say or do something that makes an ordinary person in the victim’s position fear serious bodily injury or death. See United States v. Kelley , 412 F.3d 1240, 1244 (11th Cir. 2005) (stating ba nk robbery “ by intimidation ” occurs when an ordinary person in the victim’s position reasonably could infer a threat of bodily harm from the defendant’s acts ); 11th Cir. Pattern Jury Instruction (Criminal) O78 (instructing that to take “by intimidation” for purposes of federal carjacking is “to say or do something that would make an

Case: 17-10172 Date Filed: 10/09/2018 Page: 7 of 158 ordinary person fear bodily harm” ). Simply put, § 2119’s p roscribed conduct where the defendant must take the car from a person by intimidation

— that is, by conduct that would make an ordinary person fear bodily harm

— and do so with the intent to kill or cause serious bodily injury necessarily entails at least threatened or attempted force and qualifies under § 924(c)(3)(A)

. T hree other circuits have concluded that federal car jacking “by intimidation” requires at least a threat to use violent force and categorically qualifies as a crime of violence under § 924(c)(3)(A)’s elements clause. See United States v. Gutierrez , 876 F.3d 1254, 1255

- 5 7 (9th Cir. 2017) , cert. denied , ___ U.S. ___, 138 S. Ct. 1602 (2018) ; United States v. Jones , 854 F.3d 737, 740

- 41 & n.2 (5th Cir.) , cert. denied , ___ U.S. ___, 138 S. Ct. 2 42 (2017) ; United States v. Evans , 848 F.3d 242, 246

- 4 8 (4th Cir.) , cert. denied , ___ U.S. ___, 137 S. Ct. 2253 (2017)

. T he Ninth Circuit explained that intimidation as used in § 2119 requires that the defendant take the motor vehicle in such a way “that would put an ordinary, reasonable person in fear of bodily harm, which necessarily entails at least the threatened use of violent physical force.” Gutier rez , 876 F.3d at 1257. In concluding carjacking by intimidation is a violent crime, circuits have relied on decisions interpreting the analogous federal bank robbery statute , which proscribes bank robbery “by force and violence, or by intimidation

. ” S ee 18 U.S.C. § 2113(a) ; Guitierrez , 876 F.3d at 1257; Jones , 854 F.3d at 740; Evans , 848

Case: 17-10172 Date Filed: 10/09/2018 Page: 8 of 159 F.3d at 246

- 47. Seven circuits , in cluding this Court, have held that federal bank robbery “by intimidation” has as an element the threatened use of physical force and c ategorically qualifies under § 924(c)(3)(A). See United States v. Johnson , 899 F.3d 191 , 203

- 04 (3d Cir. 2018); United States v. Watson , 881 F.3d 782, 7 84

- 85 (9th Cir.) , cert. denied , 2018 WL 3223705 (U.S. Oct. 1 , 2018) ; Hunter v. United States , 873 F.3d 388, 390 (1st Cir. 2017); United States v. Williams , 864 F.3d 826, 827, 830 (7th Cir.) , cert. denied , 138 S. Ct. 272 (2017) ; United States v. Armour , 840 F.3d 904, 908

- 09 (7th Cir. 2016); United States v. McBride , 826 F.3d 293, 296 (6th Cir. 2016) , cert. d enied , 137 S. Ct. 830 (2017) ; United States v. McNeal , 818 F.3d 141, 152

- 54 (4th Cir. 2016) , cert. denied , 138 S. Ct. 272 (2017) ; United States v. Wright , 215 F.3d 1020, 1028 (9th Cir. 2000) ; see also In re Sams , 830 F.3d 1234, 1239 (11th Cir. 2016) ( following the Fourth Circuit ’s McNeal and the Ninth Circuit ’s Wright and holding federal bank robbery qualifies under § 924(c)(3)(A) )

. In short, Moore and In re Smith correctly held that a § 2119 carjacking offense categorically qualifies under § 924(c)( 3)(A)’s elements clause. B . Attempted Carjacking is Categorically a Crime of Violence Even so, Ovalles’s next argument is that her conviction cannot qualify because it was for only attempted carjacking

. However, this Court already has concluded that attempted crime s of violence may also categorically qualif y under § 924(c)(3)(A). Specifically, in McGuire , the § 924(c) defendant’s predicate

Case: 17-10172 Date Filed: 10/09/2018 Page: 9 of 1510 conviction was for “ attempting ” to set fire to, damage, destroy, disable, or wreck an aircraft, in violation of 18 U.S.C. § 32(a)(1). McGuire , 706 F.3d at 1335 . T his Court held that even the least culpable act under § 32(a)(1)

— such as “attempting”
to disable an aircraft by deflating its tires on the ground

— categorically qualified under § 924(c)(3)(A)

. Id. at 133 6

- 3 8

. We reasoned that “attempting to disable an aircraft ” is itself an act of force in the meaningful sense , ” stressing that it is an “‘active crime’ done ‘intentionally’ against the property of another, with extreme and manifest indifference to the owner of that property and the wellbeing of the
passengers .” Id

. at 1337. 2 Here, attempted carjack ing is not only an active crime but it must be done intentionally against a person with intent to seriously injure or kill if necessary to steal the car. Importa ntly , federal law , which governs an attempt of a federal crime , demonstrates why attempted carjacking qualifies under the elements clause

. T o be convicted of an “attempt” of a federal offense, a defendant must: (1) have the specific intent to engage in th e criminal conduct s he is charged with attempting ; and (2) have taken a substantial step toward the commission of the offense that strongly corroborates h er criminal intent. United States v. Jockisch , 857 F.3d

2 McGuire held the defendant’s attempt to disable an aircraft categorically qualified under both the residual and elements clause s . 706 F.3d at 1336

- 38. Our en banc Ovalle s II decision overruled McGuire only to the extent it required the application of the categorical approach to the residual clause determination. Ovalles II , ___ F.3d at ___, 2018 WL 4830079 , at * 2, 17. McGuire ’s alternative holding that the attempt crime categorically qualified under the elements clause remains undisturbed.

Case: 17-10172 Date Filed: 10/09/2018 Page: 10 of 1511 1122, 1129 (11th Cir. 2017 ) ; United States v. Yost , 479 F.3d 815, 819 (11th Cir. 2007). In other words, a federal attempt offense requires that the defendant have the specific intent to commit each element of the completed federal offense. In addition, for attempted carjacking, the government must also prove that the defendant attempted to take the vehicle from a person with intent to seriously injure or kill the person if necessary to steal the car. That required violent intent element remains the same whether the taking was attempted or completed

. Further, under federal law, attempted carjacking requires not mere preparation, but a substantial step toward taking the car by intimidation that corroborates that specific criminal intent. “ A substantial step can be shown when the defendant’s objective acts mark h [er] conduct as criminal and, as a whole, ‘strongly corroborate the required culpability.’” Yost , 479 F.3d at 819 (quoting United States v. Murrell , 368 F.3d 1283, 1288 (11th Cir. 20 04)). To constitute an attempt under federal law, the defendant must do more than merely plan or prepare for the crime ; he or she must perform objectively culpable and unequivocal acts toward accomplishing the crime

. See United States v. Ballinger , 395 F .3d 1218, 1238 n.8 (11th Cir. 2008) (en banc) ; United States v. McDowell , 705 F.2 d 426, 427

- 28 (11th Cir. 1983). We can conceive of no plausible means by which a defendant could commit attempted carjacking absent a threatened or attempted use of force aga inst a

Case: 17-10172 Date Filed: 10/09/2018 Page: 11 of 1512 person. Applying the categorical approach, we consider “the plausible applications” of the carjacking statute, not mere “theoretical” possibilities of how a carjacking may occur. See Gonzales v. Duenas

- Alvarez , 549 U.S. 183, 193, 127 S. Ct. 815, 822 (2007) (requiring “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside” the standard). Even a ssuming that the substantial step itself in an attempted carjacking offense falls short of actual or threatened violence, we also conclude that because a completed carjacking qualifies as a crime of violence, an attempt to commit that violent offense constitutes a crime of violence too . I n reaching this alternative and independe nt ground for affirmance, we agree with , and adopt , the Seventh Circuit’s approach to attempted violent crimes

. Hill v. United States , 877 F.3d 717, 718

- 19 (7th Cir. 2017) ( examining Illinois law and holding murder qualifie s as a violent felony under § 92 4(e)’s elements clause and therefore attempted murder does too ) , petition for cert. filed , No. 18

- 5915 (U.S. Aug. 28, 2018) ; 3
Armour , 840 F.3d at 908

- 09 & n.3 ( examining federal law and holding that aiding and abetting attempted armed bank robbery qualifi es as a crime of violence under § 924(c)(3)(A) ) ; Morris v. United States , 827 F.3d 696, 698

- 99 (7th Cir. 2016) (Hamilton, J

. , concurring)

.

3 Section 924(e) is the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e). Case: 17-10172 Date Filed: 10/09/2018 Page: 12 of 1513 In Hill , t he Seventh Circuit explained that “[w]hen a substantive offense would be a violent felony under § 924(e) an d similar statutes , an attempt to commit that offense also is a violent felony.” See Hill , 877 F.3d at 719

. Hill argued that his attempted murder conviction did not qualify because the substantial step required to commit attempt under Illinois law may no t itself involve the use, attempt ed use , or threaten ed use of physical force. Id. (citing as examples buying a gun or giving a hit man a car key after drawing up assassination plans ). Rejecting Hill’s argument , t he Seventh Circuit acknowledged that in attempt crimes the substantial step itself may not be actual or threatened force. Id. Nonetheless, if a n element of the crime (murder), if completed, involves actual or threatened force and is therefore a violent crime, it follows that an attempt to commit that violent crime is itself a violent crime. Id. at 719

- 20. The Seventh Circuit reasoned that: (1) a defendant must intend to commit every element of the completed crime in order t o be guilty of attempt ; and (2) thus, “an attempt to commit a crim e should be treated as an attempt to commit every element of that crime.” Id. The Seventh Circuit explained that “ [w]hen the intent element of the attempt offense includes intent to commit violenc e against the person of another

. . . it makes sense to sa y that the attempt crime itself includes violence as an element .” Id. ; see also Morris , 827 F.3d at 698

- 99 (Hamilton, J. , concurring) (“Even though the substantial step(s) may have fallen short of actual or threatened

Case: 17-10172 Date Filed: 10/09/2018 Page: 13 of 1514 physical force, the criminal has, by definition, attempted to use or threaten physical force because he has attempted to commit a crime that would be violent if completed .”). “Given the statutory specification [in § 924(e)(2)(B)(i)] that an element of attempted force operates the same as an element of completed force, and the rule that conviction of attempt requires proof of intent to commit all elements of the completed crime,” the Seventh Circuit concluded that when a n offense, if completed, qualifies under the ACCA ’s elements clause , an a ttempt to commit that

same offense also is a violent felony. See Hill , 877 F.3d at 719. Analogously here, it makes no difference that Ovalles was convicted of only attempted carjacking. The federal attempt law requires that Ovalles intended to commit every element of a completed carjacking, including taking the vehicle from another person by force and violence or by intimidation and fully intending to cause death or bodily harm to that person if necessary to steal the vehicle

. Similar
to Hill ’s analysis, Ovalles has by definition attempted to use or threaten force because she attempted to commit a crime that would be violent if completed. Thus, under Hill ’s analysis, given § 924(c)’s elements clause equates an attempted forc e with actual or threate n ed force, and given that an attempt conviction requires

an intent to commit all elements of the completed crime, attempted carjacking qualifies as a crime of violence under § 924(c)(3)(A) as well.

Case: 17-10172 Date Filed: 10/09/2018 Page: 14 of 1515 III. CONCLUSION A s an independent and alternative ground for affirmance of the denial of Ovalles’s § 2255 motion, we hold that Ovalles’s attempted carjacking conviction categorically qualifie s as a crime of violence under § 924(c)(3)(A)’s elements clause

. We therefore affirm Ovalles ’s § 924(c) conviction

. AFFIRMED. Case: 17-10172 Date Filed: 10/09/2018 Page: 15 of 15