In United States v. Howald, --- F.4th ---, No. 23-1182 (9th Cir. 2024), the Court affirmed John Howald’s convictions for a federal hate crime under 18 U.S.C. § 249(a)(2) and discharge of a firearm during a crime of violence under 18 U.S.C. § 924(c)(1)(A).
Howald argued that § 249(a)(2) is an unconstitutional exercise of Congress’s Commerce Clause power both facially and as applied to him.
First, the Court held that the jurisdictional element in § 249(a)(2)(B)(iii)—that a defendant have used a firearm “that has traveled in interstate or foreign commerce”—defeats the facial challenge.
In sum, we—as well as our sister circuits—have consistently approved statutes with jurisdictional hooks in the face of Commerce Clause challenges. See Hill, 927 F.3d at 204 (identifying no case “in which a federal criminal statute including an interstate commerce jurisdictional element has been held to exceed Congress’s authority under the Commerce Clause”). Howald conceded as much during a motion hearing before the district court—“he could not identify any valid case in which a federal court had invalidated a federal criminal statute containing an interstate commerce jurisdictional element.”
The jurisdictional element in § 249(a)(2)(B)(iii)—that a defendant have used a firearm “that has traveled in interstate or foreign commerce”—defeats Howald’s facial challenge. See Alderman, 565 F.3d at 645-46, 648; Dorsey, 418 F.3d at 1045-46; Hanna, 55 F.3d at 1462 & n.2. That hook is nearly identical to those approved of in Alderman (“sold or offered for sale, in interstate or foreign commerce”), Dorsey (“that has moved in or that otherwise affects interstate or foreign commerce”), and Hanna and the ensuing § 922(g) cases (“shipped or transported in interstate or foreign commerce”).
Howald has not established that § 249(a)(2) would be invalid in all circumstances or that the law lacks a plainly legitimate sweep. See Ams. for Prosperity Found., 594 U.S. at 615. Faced with a “presumption of constitutionality,” Howald has not made “a plain showing that Congress has exceeded its constitutional bounds.” Morrison, 529 U.S. at 607. Accordingly, we reject his facial challenge to § 249(a)(2).
Next, the Court rejected Howald's as-applied challenge because the government proved that the firearms and ammunition used in the offense traveled across state lines.
Finally, Howald argued that his § 249(a)(2) hate crime conviction was not a predicate crime of violence for § 924(c)(1)(A). The Court held that § 249(a)(2) is divisible, and that Howald’s offense is categorically a crime of violence because an attempt to kill in violation of § 249(a)(2)(A)(ii)(II) necessarily involves “as an element the use, attempted use, or threatened us of physical force against the person or property of another” per § 924(c)(3)(A).
Attempting to kill someone in violation of § 249(a)(2)(A)(ii)(II) categorically implicates the attempted use of physical force; a person who has “taken a substantial step toward causing the death of another with the specific intent to cause that person’s death” has taken a substantial step toward the use of violent force. 8 United States v. Studhorse, 883 F.3d 1198, 1205-06 (9th Cir. 2018). As we explained in Studhorse, “such an intentional act, ‘strongly corroborative’ as it must have been of [a] purpose to cause death, necessarily involved the use, attempted use, or threatened use of force.” Id. Thus, “‘[e]ven if [the defendant] took only a slight, nonviolent act with the intent to cause another’s death, that act would pose a threat of violent force sufficient to satisfy’ the definition of a crime of violence” in § 924(c)(3)(A).A person cannot attempt to kill without at least attempting to use force.
