20-790
Gray v. United States of America

                       UNITED STATES COURT OF APPEALS

                                   FOR THE SECOND CIRCUIT

                                      _______________

                                     August Term, 2020

     (Submitted: October 20, 2020                     Decided: November 13, 2020)

                                     Docket No. 20-790

                                      _______________

                                       DUROME GRAY,

                                     Petitioner-Appellant,

                                            —v.—

                              UNITED STATES OF AMERICA,

                                     Respondent-Appellee.
                                       _____________

       Before: SACK, KATZMANN, and NARDINI, Circuit Judges.

                                      _______________

       Appeal from a judgment of the United States District Court for the Eastern
District of New York (Cogan, J.) denying relief under 28 U.S.C. § 2255 and denying
a certificate of appealability. We hold that an offense under 18 U.S.C. § 111(b) is a
categorical crime of violence within the meaning of 18 U.S.C. § 924(c)(3)(A) and
therefore DENY Petitioner’s motion for a certificate of appealability.

                                      _______________
                           EUNICE C. LEE, Federal Defenders of New York, Inc.,
                           New York, NY, for Petitioner-Appellant.

                           JOHN VAGELATOS, Assistant United States Attorney, for
                           Seth D. DuCharme, Acting United States Attorney for the
                           Eastern District of New York, Brooklyn, NY, for
                           Respondent-Appellee.
                                   _______________
PER CURIAM:

      It is a federal crime under 18 U.S.C. § 924(c)(1)(A) to use a firearm “during

and in relation to any crime of violence.” The question presented is whether

assaulting a federal officer under 18 U.S.C. § 111(b) is categorically a “crime of

violence.” We join six other courts of appeals in holding that it is. 1

      I.   Procedural History

      Durome Gray pleaded guilty in 2012 to assaulting a federal officer, in

violation of 18 U.S.C. §§ 111(a)(1) and (b), and to using a firearm during that

assault, in violation of 18 U.S.C. § 924(c). Gray later filed a motion under 28 U.S.C.


      1 See United States v. Bullock, 

(3d Cir. 2020); United States v. Bates,

(11th Cir. 2020); United States v. Kendall, 

(10th Cir. 2017);
United States v. Taylor, 

(1st Cir. 2017); United States v. Rafidi, 

(6th Cir. 2016); United States v. Hernandez-Hernandez, 

(5th Cir.
2016). Some of these cases addressed this issue in the context of § 924(c), while
others did so in the context of the substantively similar provisions in the
Sentencing Guidelines. The Ninth Circuit likewise held that § 111(b) is a crime of
violence for the purposes of a nearly identically worded statute, see United States
v. Juvenile Female, 

(9th Cir. 2009), but that decision predates the
Supreme Court’s decision in Johnson v. United States, 

(2010).
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§ 2255 to vacate his § 924(c) conviction on the ground that it lacked a legal

predicate because § 111 does not qualify as a “crime of violence.” The district court

(Cogan, J.) denied the motion and denied a certificate of appealability. Gray now

moves for such a certificate.

      A court may issue a certificate of appealability “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). A defendant may not appeal from a final order in a § 2255 proceeding

without such a certificate.

  Discussion

      Section 924(c) imposes heightened penalties on “any person who, during

and in relation to any crime of violence[,] . . . uses or carries a firearm.” 18 U.S.C.

§ 924(c)(1)(A). The statute defines a “crime of violence” as a felony that “has as an

element the use, attempted use, or threatened use of physical force against the

person or property of another.”

The term “use” means the

“active employment” of physical force. Leocal v. Ashcroft, 

, 9 (2004)




      2While the statute contains an alternative definition of “crime of violence,”
18 U.S.C. § 924(c)(3)(B), the Supreme Court has struck down that definition as
unconstitutionally vague. See United States v. Davis, 

, 2336 (2019).
                                           3
(interpreting 18 U.S.C. § 16). 3 “Physical force” means “violent force—that is, force

capable of causing physical pain or injury to another person.” Johnson v. United

States, 

, 140 (2010) (emphasis omitted) (interpreting 18 U.S.C.

§ 924(e)(2)(B)(i)).

       Courts employ the “categorical” approach to determine whether an offense

is a crime of violence. Under the categorical approach, we compare the elements

of the offense (here, § 111) to the statutory definition of “crime of violence” (here,

§ 924(c)), without regard to the particular facts of the defendant’s offense conduct.

See, e.g., Mathis v. United States, 

, 2248 (2016). If the statute of offense

is “divisible” — i.e., it defines multiple separate crimes — we apply the “modified

categorical” approach and look at “a limited class of documents” from the record

of conviction to “determine what crime, with what elements, a defendant was

convicted of.”

       We agree with our sister circuits that § 111 is divisible. See, e.g., United States

v. Taylor, 

, 492 (1st Cir. 2017); see also United States v. Chestaro, 

, 606 (2d Cir. 1999) (recognizing that § 111 “creates three distinct categories of

conduct”). As such, we apply the modified categorical approach, and our task here


       3Unless otherwise indicated, in quoting cases, we omit all internal
citations, quotation marks, footnotes, and alterations.
                                            4
is straightforward: Gray concedes that he pleaded guilty to both of the offenses

defined by § 111(a)(1) and § 111(b), the government took the same position before

the district court, and the record of conviction likewise indicates that Gray pleaded

guilty to § 111(a)(1) and § 111(b).

      Section 111 states in relevant part:

             (a) (1) [Whoever] forcibly assaults, resists, opposes,
             impedes, intimidates, or interferes with [a qualifying
             federal official in specified circumstances] . . . 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 where such acts involve
             physical contact with the victim of that assault or the
             intent to commit another felony, 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 . . . or inflicts bodily injury, shall be
             fined under this title or imprisoned not more than 20
             years, or both.

      Because a violation of § 111(b) requires more violent conduct than a

violation of § 111(a)(1) alone, we focus on whether § 111(b) is a crime of violence.

If it is, then Gray’s § 924(c) conviction is proper and we need not examine whether

§ 111(a)(1) is a categorical crime of violence. Thus, the key question before us is

this: Can someone be convicted of violating § 111(b) without the “use, attempted

use, or threatened use of physical force against the person or property of another?”

                                         5
18 U.S.C. § 924(c)(3)(A). If the answer is no, then § 111(b) is a categorical crime of

violence.

      There are two key components to a § 111(b) violation. First, the person must

have committed one of the acts described in § 111(a) — i.e., forcibly assault, resist,

oppose, impede, intimidate, or interfere with a qualifying victim in specified

circumstances. Second, in committing the act, the person must have either “use[d]

a deadly or dangerous weapon” or “inflict[ed] bodily injury.”

using such a weapon and inflicting bodily injury independently satisfy the

physical force requirement of § 924(c)(3)(A), we hold that a § 111(b) offense is a

categorical crime of violence.

                A. “Uses a deadly or dangerous weapon”

      We agree with the First Circuit, which, along with other courts of appeals,

has held that “[a] defendant who acts forcibly using a deadly or dangerous

weapon under § 111(b) must have used force by making physical contact with the

federal employee, or at least threatened the employee, with an object that, as used,

is capable of causing great bodily harm.” 

. This suffices

under Johnson because it constitutes “force capable of causing physical pain or

injury to another 

.



                                          6
      Gray argues that “dangerous weapon” can mean many things, and that one

could be convicted under § 111(b) by “merely tap[ping] a Marshal with a

nightstick.” Appellant’s Br. 17, ECF No. 22. We disagree. Whether something is a

“dangerous” weapon depends on how it is used. See, e.g., United States v. Mumuni

Saleh, 

, 108 (2d Cir. 2019) (“[T]he question of whether an object

constitutes a dangerous weapon hinges, in part, on the manner in which the object

is used, as many objects, even those seemingly innocuous, may constitute

dangerous weapons.”). Section 111(b) requires that the defendant have “use[d]”

the dangerous weapon, which implies that the object was used as a dangerous

weapon, not merely as an implement by which to do something more innocuous.

So understood, the “use” of a dangerous weapon in the course of a § 111(b) assault

or battery constitutes the “use, attempted use, or threatened use of physical force

against the person . . . of another” under 18 U.S.C. § 924(c)(3)(A).

                B. “Inflicts bodily injury”

      We likewise hold that a § 111(b) offense involving the infliction of bodily

injury by means of a forcible assault or battery necessarily involves physical force

as defined by Johnson and required by § 924(c)(3)(A). Gray argues that the mere

fact that a common-law assault or battery caused an injury does not mean that the



                                          7
action involved physical force. He poses a hypothetical scenario where “a

defendant deliberately intimidated or interfered with an approaching officer by

suddenly yelling or sounding an alarm or bullhorn, startling the officer, who then

fell down a flight of stairs.” Appellant’s Br. 14. However, 18 U.S.C. § 111(b) does

not apply to someone who merely “causes” bodily injury; it applies only to

someone who “inflicts” bodily injury. As the Seventh Circuit has held, the word

“inflict” is more restrictive than the word “cause.” United States v. Jackson, 

, 557 (7th Cir. 2002). Thus, in Jackson, the court held that “appl[ying] force

directly to [a federal official]’s person” during an arrest violates § 111(b), while a

federal official “tripp[ing] on his untied shoelaces while walking over to apply

handcuffs” does not.

has likewise held that “as used in § 111(b), ‘inflict’ refers

to physical, not proximate, causation” and that “[t]he person whose action was the

direct physical cause of [the injury], therefore, is the person who inflicted it for

purposes of § 111(b).” United States v. Zabawa, 

, 560 (6th Cir. 2013). In

Zabawa, a prisoner assaulted a prison guard, and in response, the guard

headbutted the prisoner, leaving the guard with a cut on his forehead.

The court reversed the prisoner’s § 111(b) conviction, holding that although the



                                          8
prisoner’s assault was a cause of the guard’s wound, the government did not prove

that the prisoner inflicted the wound. Rather, the court noted, the guard might have

inflicted the wound on himself.

see also United States v. Bullock,

, 216 (3d Cir. 2020) (“[T]he force contemplated by [§ 111(b)] . . . must

be directed at the officer and the plain text of the statute makes clear that the bodily

injury must be inflicted by the defendant in the commission of the acts set forth in

§ 111(a).”).

      Under this reading of § 111(b), we agree with our sister courts of appeals

that infliction of bodily injury by means of a forcible assault or battery necessarily

involves physical force as defined by Johnson. See, e.g., 

(“If a

slap in the face counts as violent force under Johnson because it is capable of

causing pain or injury, a forcible act that injures does, too, because the defendant

necessarily must have committed an act of force in causing the injury.”). And

because both acts in § 111(b) — use of a deadly or dangerous weapon and infliction

of bodily injury — entail physical force, we hold that an offense under § 111(b) is

a categorical crime of violence.




                                           9
    III.   Conclusion

      Because we hold that an offense under § 111(b) is a categorical crime of

violence, Gray has not made “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). We therefore DENY the motion for a

certificate of appealability.




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