FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-50549 Plaintiff-Appellee,

D.C. No.

v.  CR-07-02437-IEG

JUVENILE FEMALE,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Irma E. Gonzalez, District Judge Presiding

Argued and Submitted

December 10, 2008—Pasadena, California

Filed May 27, 2009

Before: Harry Pregerson, Dorothy W. Nelson and

David R. Thompson, Circuit Judges.

Opinion by Judge Nelson

6255
COUNSEL

Todd W. Burns, Federal Defenders of San Diego, Inc., San

Diego, California, for the defendant-appellant. 

Goerge D. Hardy, Assistant United States Attorney, San

Diego, California, for the plaintiff-appellee. 

OPINION

D.W. NELSON, Senior Circuit Judge:

In 2007, Juvenile Female was found guilty of Juvenile

Delinquency based on her violation of 18 U.S.C. § 111

(Assault on a Federal Officer). She now appeals the denial of

her motion to dismiss for lack of jurisdiction, as well as the

denial of her motion for a judgment of acquittal. We affirm

both of the District Court’s orders.

FACTUAL AND PROCEDURAL BACKGROUND

On September 4, 2007, Border Patrol Agent Anthony Ponzio, who was stationed about a quarter of a mile away from

the United States-Mexico border, heard a radio dispatch that

a suspicious vehicle had been spotted. A few minutes later, he

6258 UNITED STATES v. JUVENILE FEMALE
saw a white Chevrolet Impala idling on the side of the road.

After finding that the license plate was registered to a rental

car company that was frequently involved in illicit activities,

Ponzio drove up to the Impala and asked the driver if he was

lost. Juvenile Female (“JF”) was sitting in the passenger seat

of the car. 

Supervisory Border Patrol Agent Leo Miele ordered Ponzio

to “clear the area” because he thought the Impala might be in

the area to pick up narcotics. Miele then waited in a driveway

about two-and-a-half miles down the road. After the Impala

passed Miele’s vehicle, he pulled up behind it. The driver

pulled off to the side of the road and signaled for Miele to

pass. Agent Miele indicated that the Impala ought to keep on

driving. About three-and-a-half miles later, the Impala pulled

over once more and signaled again for Miele to pass. At this

point, Miele pulled up next to the car and identified himself

as a Border Patrol agent. In doing so, he recognized the driver

as someone he had arrested, in December 2005, for transporting about 500 pounds of marijuana in a disguised pick-up

truck. The driver agreed to speak to Miele. Miele indicated a

driveway where the car could pull over. The Impala did not

stop, however, and Miele followed in pursuit. 

Miele radioed other agents, including Border Patrol Agent

Alexander Djokich, and notified them that he was following

a suspected drug smuggler. The Impala eventually stopped

and the driver fled, leaving the driver’s side open. Miele

chased the driver. 

The first agent to reach the Impala was Djokich. He noticed

JF moving inside the vehicle, and ran to the open door with

his gun drawn. JF was climbing across the front seat. Djokich

identified himself, and ordered her to exit the car. JF, however, was screaming and kicking towards him. A scuffle

ensued, during which JF stabbed Djokich in the back of his

left leg with a small knife. 

UNITED STATES v. JUVENILE FEMALE 6259
On September 5, 2007, the United States Attorney for the

Southern District of California (“the Government”) filed an

Information charging JF with Juvenile Delinquency, in violation of 18 U.S.C. §§ 111(a), 111(b), and 5032. The Information stated, in relevant part, that JF:

did knowingly and intentionally and forcibly assault,

resist, oppose, impede and interfere with a person

named in Title 18, United States Code, Section 1114,

namely, United States Border Patrol Agent A.

Djokich, in that defendant in an attempt to resist

apprehension, kicked Agent A. Djokich and stabbed

agent A. Djokich with a knife, a deadly and dangerous weapon, while Agent A. Djokich was engaged in

the performance of his official duties; in violation of

Title 18, U.S.C., Section 5032 and Title 18, U.S.C.,

Section 111(a) and (b).

The Government also filed a certification, pursuant to 18

U.S.C. § 5032(3), stating that “the offense charged . . . is a

crime of violence that is a felony and that there is a substantial

Federal interest in the case to warrant the exercise of Federal

jurisdiction.” On September 19, 2007, JF filed a motion to

dismiss for lack of jurisdiction, arguing that 18 U.S.C. § 111

was not categorically a crime of violence. The District Court

denied the motion. 

The case then proceeded to trial. JF moved for a judgment

of acquittal after submission of the Government’s case, and

again at the close of evidence, arguing that Agent Djokich

was not engaged in an “official duty,” one of the elements of

the offense. The District Court denied both motions. The

court subsequently found that JF had committed an act of

Juvenile Delinquency, and sentenced her to three years’ probation. JF then timely appealed to this court. 

STANDARD OF REVIEW

“We generally review de novo a district court’s assumption

of jurisdiction.” United States v. Juvenile Male, 118 F.3d

6260 UNITED STATES v. JUVENILE FEMALE
1344, 1346 (9th Cir. 1997). “Whether or not . . . [an underlying offense] is a crime of violence is a question of statutory

interpretation reviewed de novo.” Id. at 1350. A district

court’s ruling on a motion for a judgment of acquittal is also

reviewed de novo. United States v. McNeil, 320 F.3d 1034,

1035 (9th Cir. 2003).

DISCUSSION

The government charged JF with violations of 18 U.S.C.

§ 111(a) and 111(b). When JF was charged, 18 U.S.C. § 111

provided as follows:1

(A)In general.—Whoever . . . forcibly assaults,

resists, opposes, impedes, intimidates, or interferes

with any person designated in section 1114 of this

title while engaged in or on account of the performance of official duties . . . shall, where the acts in

violation of this section constitute only simple

assault, be fined under this title or imprisoned not

more than one year, or both, and in all other cases,

be fined under this title or imprisoned not more than

8 years, or both.

(b) Enhanced penalty.—Whoever, in the commission

of any acts described in subsection (a), uses a deadly

or dangerous weapon (including a weapon intended

to cause death or danger but that fails to do so by

reason of a defective component) or inflicts bodily

injury, shall be fined under this title or imprisoned

not more than 20 years, or both.

1Congress recently amended § 111(a) as a part of the Court Security

Improvement Act of 2007, replacing “in all other cases” with “where such

acts involve physical contact with the victim of that assault or the intent

to commit another felony.” Pub. L. No. 110-177, 121 Stat. 2538 (2007).

UNITED STATES v. JUVENILE FEMALE 6261
I. JURISDICTION OVER JUVENILE FEMALE

A juvenile alleged to have committed an act of juvenile delinquency . . . shall not be proceeded against

in any court of the United States unless the Attorney

General, after investigation, certifies to the appropriate district court of the United States that . . . the

offense charged is a crime of violence that is a felony . . . , and that there is a substantial Federal interest in the case or the offense to warrant the exercise

of Federal jurisdiction. 

18 U.S.C. § 5032. 

“Certification is a jurisdictional requirement.” United

States v. Juvenile Male (Kenneth C.), 241 F.3d 684, 686 (9th

Cir. 2001) (internal quotation marks omitted). JF argues that

a violation of 18 U.S.C. § 111 is not a crime of violence, and

that the District Court erred in assuming jurisdiction over her.

A.

[1] When exercising jurisdiction over a juvenile, this Court

follows what has been termed a “categorical approach” to

determine whether an offense is a crime of violence. See Leocal v. Ashcroft, 543 U.S. 1, 8 (2004) (using a categorical

approach to determine whether a crime was a crime of violence warranting deportation); United States v. David H., 29

F.3d 489, 494 (9th Cir. 1994); United States v. Baker, 10 F.3d

1374, 1393-94 (9th Cir. 1993), overruled on other grounds by

United States v. Norby, 225 F.3d 1053 (9th Cir. 2000). 

[2] Under the categorical approach, “the generic, rather

than the particular, nature of the predicate offense is determinative in defining a crime of violence.” Baker, 10 F.3d at

1394 (internal quotations omitted). A crime “qualifies as a

crime of violence . . . if and only if the full range of conduct

covered by it falls within the meaning of that term.” Valencia

6262 UNITED STATES v. JUVENILE FEMALE
v. Gonzales, 439 F.3d 1046, 1049 (9th Cir. 2006) (internal

quotation marks omitted). 

[3] We recently held that 18 U.S.C. § 111 sets out three

separate crimes. United States v. Chapman, 528 F.3d 1215,

1218 (9th Cir. 2008) (“[S]everal of our sister circuits have

held that § 111 creates three distinct offenses, one misdemeanor and two felonies. We agree that this formulation of the

statute is required.”) (internal citations omitted).

[4] Unfortunately, “[t]he statute itself offers little guidance

on the precise contours of the three separate offenses created

by § 111.” United States v. Hathaway, 318 F.3d 1001, 1007

(10th Cir. 2003); see also Chapman, 528 F.3d at 1218

(“Section 111(a) is inartfully drafted.”). In Chapman, we held

that “[v]iolations of the ‘simple assault’ provision constitute

misdemeanors. Violations of the ‘all other cases’ or dangerous weapon or bodily harm provisions constitute felonies.”

528 F.3d at 1218 (internal citation omitted). 

In differentiating between the two offenses described in

section 111(a), “simple assaults” and “all other cases,” some

of our sister circuits require physical contact, whereas others

require physical contact or a similar aggravating factor, such

as the intent to commit a murder or a serious felony.2 Id. at

1219. In Chapman, we declined to adopt a rule, and held that

under either approach, “while a defendant could be charged

with resisting, opposing, impeding, intimidating, or interfering, he could not be convicted unless his conduct also

amounted to an assault.” Id. (emphasis added). 

[5] The third offense, which is the one at issue in this case,

was not specifically addressed in Chapman. Id. Our sister circuits, however, have held that section 111(b) describes an “assault involving a deadly or dangerous weapon or resulting in

2

In light of the 2007 revision, this issue is moot and limited solely to

defendants who were charged under the prior version of the statute. 

UNITED STATES v. JUVENILE FEMALE 6263
bodily injury.” United States v. Vallery, 437 F.3d 626, 630

(7th Cir. 2006); see also United States v. Gagnon, 553 F.3d

1021, 1024 (6th Cir. 2009); Hathaway, 318 F.3d at 1007-09;

United States v. Yates, 304 F.3d 818, 821 (8th Cir. 2002);

United States v. McCulligan, 256 F.3d 97, 102 (3d Cir. 2001);

United States v. Chestaro, 197 F.3d 600, 607-08 (2d Cir.

1999); United States v. Nunez, 180 F.3d 227, 233 (5th Cir.

1999). In light of these cases, the plain language of the statute,

and our determination that “convictions under this statute

require at least some form of assault,” Chapman, 528 F.3d at

1221, JF’s argument that the third offense subsumes five other

non-assaultive offenses, because it also lists those who resist,

oppose, impede, intimidate, or interfere with designated officers, fails. 

JF also argues that regardless of whether § 111 lays out

three separate offenses, under the categorical approach, the

panel must consider the entire range of conduct criminalized

by the statute. This is unpersuasive. The categorical approach

does not focus on a criminal statute in its entirety, but on the

offense or crime. See, e.g., Leocal, 543 U.S. at 7 (The Court

“look[s] to the elements and the nature of the offense of conviction.”) (emphasis added); United States v. Gomez-Leon,

545 F.3d 777, 783 (9th Cir. 2008) (considering only subsection (c)(3) of Cal. Pen. Code § 192); Baker, 10 F.3d at 1394

(“[T]he generic, rather than the particular, nature of the predicate offense is determinative.”) (emphasis added). 

B.

The appropriate question before us, therefore, is whether an

“assault involving a deadly or dangerous weapon or resulting

in bodily injury,” under 18 U.S.C. § 111, is, categorically, a

crime of violence. We hold that it is. 

[6] Under 18 U.S.C. § 16, a crime of violence is defined as

6264 UNITED STATES v. JUVENILE FEMALE
(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.

“In construing both parts of § 16, we cannot forget that we

ultimately are determining the meaning of the term ‘crime of

violence.’ The ordinary meaning of this term, combined with

§ 16’s emphasis on the use of physical force against another

person . . . suggests a category of violent, active crimes.” Leocal, 543 U.S. at 11. 

There are two variants of this offense: (1) assault involving

a deadly or dangerous weapon, and (2) assault resulting in

bodily injury. “To constitute an assault, an action must be

either a willful attempt to inflict injury upon the person of

another, or . . . a threat to inflict injury upon the person of

another which, when coupled with an apparent present ability,

causes a reasonable apprehension of immediate bodily harm.”

Chapman, 528 F.3d at 1219-20 (internal quotation marks

omitted). This court also requires intent to assault. United

States v. Spears, 631 F.2d 114, 117 n.5 (9th Cir. 1980). A

deadly or dangerous weapon is “any object which, as used or

attempted to be used, may endanger the life of or inflict great

bodily harm on a person.” United States v. Sanchez, 914 F.2d

1355, 1358 (9th Cir. 1990) (internal quotation marks omitted).

[7] A defendant charged with the first variant, assault with

a deadly or a dangerous weapon, must have always “threatened [the] use of physical force,” 18 U.S.C. § 16(a), because

he or she will have either made a “wilful attempt to inflict

injury” or a “threat to inflict injury,” Chapman, 528 F.3d at

1219-20 (internal quotation omitted), with an object that “may

endanger the life of or inflict great bodily harm on a person,”

UNITED STATES v. JUVENILE FEMALE 6265
Sanchez, 914 F.2d at 1358. Similarly, a defendant charged

under the second variant, assault resulting in bodily injury,

necessarily must have committed an act of force in causing

the injury. Thus, both variants are “crimes of violence” pursuant to 18 U.S.C. § 16(a). 

Moreover, because the offense is a felony, section 16(b)

also applies. See Chapman, 528 F.3d at 1218. Section 16(b)

sweeps more broadly than section 16(a) because it encompasses offenses where a person merely disregards a risk that

physical force will be used in commission of the offense. Leocal, 543 U.S. at 10-11. For the same reasons described above,

the two variants on this crime will always involve a substantial risk that physical force against the person may be used,

even if physical force is not an element of the offense. 

[8] Thus, because JF was charged with a crime of violence,

the District Court did not err in assuming jurisdiction over

her. 

II. A BORDER PATROL AGENT’S STATUTORY

AUTHORITY 

To be guilty of juvenile delinquency, JF must have

assaulted or resisted a federal officer who was “engaged in

. . . the performance of official duties.” See 18 U.S.C.

§ 111(a). JF argues that Djokich was not engaged in the performance of official duties because a Border Patrol agent

exceeds the scope of his statutory grant of authority when he

investigates a drug trafficking crime.

As federal officers, Border Patrol agents are limited to their

statutory powers. Ortiz v. U.S. Border Patrol, 39 F. Supp. 2d

1321, 1326 (D.N.M. 1999) (“Border Patrol agents are not

general law enforcement officers. Instead, . . . their authority

and duties are circumscribed by statute and limited in

scope.”); see also United States v. Santa Maria, 15 F.3d 879

(9th Cir. 1994); cf. United States v. Diamond, 471 F.2d 771,

6266 UNITED STATES v. JUVENILE FEMALE
773 (9th Cir. 1973) (“[C]ustoms agents are not general guardians of the public peace, as are state or local police. Their

powers . . . to search and arrest persons are limited by statute.”). “To hold otherwise would grant Border Patrol agents

unfettered discretion to investigate suspected violations of any

and all cognizable criminal laws . . . ; it would, in effect, give

to the Border Patrol the general police power that the Constitution reserves to the States.” United States v. Perkins, 166 F.

Supp. 2d 1116, 1126 (W.D. Tex. 2001). 

Although the parties do not dispute that Djokich stopped

and attempted to arrest JF because of suspected drug activity,

they do dispute the precise contours of the statutory grant of

power to the Border Patrol. 

Pursuant to 8 U.S.C. § 1357(a)(5)(B), a Border Patrol agent

may make a warrantless arrest 

for any felony cognizable under the laws of the

United States . . . if the officer or employee is performing duties relating to the enforcement of the

immigration laws at the time of the arrest and if there

is a likelihood of the person escaping before a warrant can be obtained for his arrest. 

[9] If Djokich was limited to the powers enumerated in

§ 1357, the warrantless arrest of JF would be beyond the

scope of his authority because he was not performing immigration duties at the time. See id.; see also Santa Maria, 15

F.3d at 883 (“We conclude that § 1357(a)(3) does not authorize the Border Patrol to search only for drugs. The Border

Patrol is empowered by § 1357(a)(3) to conduct administrative searches for aliens.”). In order to resolve the issue in this

case, however, it is necessary to determine what statutory

powers have been granted to the Border Patrol in the wake of

the dissolution of the Immigration and Naturalization Service

(“INS”), and the creation of the Department of Homeland

Security (“DHS”). 

UNITED STATES v. JUVENILE FEMALE 6267
The DHS was created in 2003 by the Homeland Security

Act of 2002 (“HSA”), Pub. L. No. 107-296, 116 Stat. 2135

(2003). Pursuant to the HSA, the DHS is an executive department whose mission is, among other things, to (1) “carry out

all functions of entities transferred to the Department,” and

(2) “monitor connections between illegal drug trafficking and

terrorism . . . and otherwise contribute to efforts to interdict

illegal drug trafficking.” 6 U.S.C. § 111(b)(1)(D) & (H). 

[10] The Border Patrol program was transferred from the

INS to the Directorate for Border and Transportation Security

(“DPTS”), a subset of the DHS, id. § 251, which was also

tasked with securing the border and administering the customs

laws, id. § 202. The Customs Service (a subsection of DPTS)

was subsequently renamed the Bureau of Customs and Border

Protection (“CBP”) and was to “contain the resources and

missions relating to borders and ports of entry of the Customs

Service, [and] the INS, including the Border Patrol and the

inspections program.” Id. § 542 note (incorporating President

Bush’s Reorganization Plan, H.R. Doc. No. 108-32). 

The Government argues that, as a result, Border Patrol

agents are also empowered to “stop, search, and examine . . .

any vehicle, beast, or person, on which or whom he or they

shall suspect there is merchandise . . . introduced into the

United States in any manner contrary to law.” 19 U.S.C.

§ 482 (delegation of authority to the customs administration).

We agree. 

It is true that there are no statutes or federal regulations that

specifically empower Border Patrol agents to enforce customs

laws.3 The agencies, however, were combined into the same

department, and the purpose of the DHS was to create a “sin3

In fact, every relevant mention of the Border Patrol in the Code of Federal Regulations continues to appear solely under the Immigration Regulations. See, e.g., 8 C.F.R. §§ 100.2, 100.4, 103.1, 235.1, 239.1, 274.2,

287.1, 287.4, 287.5, 287.7, 287.8, 1235.1. 

6268 UNITED STATES v. JUVENILE FEMALE
gle, unified structure, noting that today numerous Federal

entities across the government are charged with responsibilities having to do with homeland security.” See H.R. Rep. 107-

609(I), at 66 (2002), reprinted in 2002 U.S.C.C.A.N. 1352,

1356. “Different priorities and divergent policies coupled with

various leadership structures, has led to inconsistent inspections and lapses of information. The Department of Homeland

Security was established to unite the incoming agencies in the

mission of protecting the homeland.” Department of Homeland Security, Border Reorganization Fact Sheet (2003),

available at http:// www.dhs. gov/xnews/releases/press_

release_0073.shtm. 

[11] In light of the purpose and language of the HSA, we

conclude that Border Patrol agents, acting within the other

statutory limits on their powers, also have the authority, under

19 U.S.C. § 482, to “stop, search, and examine . . . any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise . . . introduced into the United

States in any manner contrary to law.” 

[12] Although we have never expressly articulated a rule,

for purposes of 18 U.S.C. § 111, “[t]he test of a Government

agent’s conduct is whether he is acting within the scope of

what he is employed to do, as distinguished from engaging in

a personal frolic of his own.” United States v. Lopez, 710 F.2d

1071, 1074 (5th Cir. 1983) (internal quotation marks omitted);

United States v. Cho Po Sun, 409 F.2d 489, 491 (2d Cir.

1969); cf. Amaya v. United States, 247 F.2d 947, 951 (9th Cir.

1957) (holding that an immigration officer who questioned

the patrons of a bar regarding their place of birth “was clearly

within the scope of his duty in inquiring”). Because Djokich

was “within the scope of what he is employed to do” when he

stopped and arrested JF, the District Court correctly denied

the motion for a judgment of acquittal.

CONCLUSION

Because the District Court did not err in assuming jurisdiction over Juvenile Female, or in denying the motion for a

UNITED STATES v. JUVENILE FEMALE 6269
judgment of aqcuittal, we AFFIRM the District Court’s

orders. 

AFFIRMED.

6270 UNITED STATES v. JUVENILE FEMALE