PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

GREGORY B. WORMUTH, Magistrate Judge.

This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Doc. 1.1 Petitioner seeks to have his conviction and sentence set aside pursuant to two Supreme Court decisions. See generally doc 1. First, Petitioner relies on the Supreme Court's recent decision in Sessions v. Dimaya, which struck down the residual clause of the Immigration and Nationality Act ("INA") as unconstitutionally vague under the Fifth Amendment Due Process Clause. 138 S.Ct. 1204 (`). Second, Petitioner cites to the Supreme Court's decision in Johnson v. United States, which similarly struck down the residual clause of the Armed Career Criminal Act ("ACCA") as unconstitutionally vague under the Fifth Amendment Due Process Clause. 135 S.Ct. 2551 (2015). Having reviewed the pleadings and record before the Court, I recommend denying the Motion.

I. BACKGROUND

On January 21, 2014, Petitioner freely and voluntarily plead guilty to an Information on one count of Stalking, a crime of violence, in violation of 18 U.S.C. § 2261A(2)(A) and one count of use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii). See Cr. docs. 15, 16, 17, 18, 19. Most relevant here, the 924(c) count charged that Petitioner "knowingly used, carried, and discharged a firearm . . . during and in relation to a crime of violence for which [Petitioner] may be prosecuted in a court of the United States, specifically, assault with a dangerous weapon." Cr. doc. 15 at 1. As to that charge, Petitioner admitted that "[o]n or about April 12, 2014, in San Juan County, in the District of New Mexico, in Indian Country, [he], an Indian, did shoot at vehicle that John Doe was driving, with a firearm, discharging that firearm, specifically a .22 caliber rifle, during and in relation to a crime of violence for which [he] may be prosecuted in a court of the United States." Cr. doc. 18 at 4. Further, the parties agreed, pursuant to Fed. R. Crim. P. 11 (c)(1)(C) that a term of 11 years-10 years imprisonment for the § 924(c) charge and 1 year imprisonment for the stalking charge-was sufficient but not greater than necessary. Id. at 5. Moreover, the United States agreed that it would not bring additional criminal charges against Petitioner arising out of the facts forming the basis of the Information. Id. at 7. In exchange Petitioner waived any right to collaterally attack his convictions and sentence "pursuant to 28 U.S.C. §§ 2241, 2255, or any other extraordinary writ, except on the issue of counsel's ineffective assistance in negotiating or entering this plea or this waiver." Id.

On June 26, 2015, the United States Supreme Court ruled in Johnson that the residual clause of the ACCA defining a violent felony to include any felony that "involves conduct that presents a serious potential risk of physical injury to another" was unconstitutionally vague. Johnson, 135 S. Ct. at 2255-57.2 Similarly, on April 17, `, the Supreme Court ruled in Dimaya that the residual clause of the INA, which defined "a crime of violence" as any felony 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," was void for vagueness. Dimaya, 138 S.Ct. 14 1210-11. In response to these rulings, Petitioner filed the instant Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 on October 23, 2018. Doc. 1. Plaintiff's Motion is now before the undersigned.

The United States argues that the motion should be denied for three reasons. First, Johnson and Dimaya do not impact Petitioner's conviction because his conviction is valid under 924(c)'s elements clause. See generally doc. 5. Second, Petitioner's motion is untimely under 28 U.S.C. § 2255(f). Id. Third, Petitioner waived his right to collaterally attack his sentence. Id. Because I agree with the United States' first argument, I need not, and will not, address the remaining arguments.

II. ANALYSIS

The Tenth Circuit Court of Appeals has indeed held that the Johnson and Dimaya opinions dictate that the residual clause of the definition of "crimes of violence" under 924(c) is unconstitutionally vague. See United States v. Salas, 889 F.3d 681 (10th Cir. `). However, if a predicate crime qualifies as a 924(c) crime of violence under the elements clause definition,3 it remains a valid predicate.

The predicate "crime of violence" underpinning Petitioner's 924(c) conviction was an assault with a dangerous weapon. More specifically, because the assault occurred in Indian Country and Petitioner is an Indian, the predicate crime was a violation of 18 U.S.C. § 1153 and § 113(a)(3). This Court has previously held that this crime qualifies as a "crime of violence" under 924(c)'s elements clause. See United States v. Concho, 2017 WL 3084454 (D.N.M. July 19, 2017) adopted by 2017 WL 5989198 (Dec. 4, 2017) (attached as Exhibits 1 & 2). More importantly, this result was affirmed by the Tenth Circuit Court of Appeals, which held that no reasonable jurist could debate that conclusion. United States v. Concho, 724 F. App'x 685 (10th Cir. 2018) (unpublished) (attached as Exhibit 3). Therefore, Petitioner's 924(c) conviction predicated upon his assault with a dangerous weapon remains valid.4 See id.

III. CONCLUSION

Accordingly, I recommend that the Court DENY Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (doc.1), and dismiss this case with prejudice.

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of these Proposed Findings and Recommended Disposition they may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any objections with the Clerk of the District Court within the fourteen-day period if that party wants to have appellate review of the proposed findings and recommended disposition. If no objections are filed, no appellate review will be allowed.

Attorneys and Law Firms

Jacob Wishard, U.S. Attorney's Office, Albuquerque, NM, for Plaintiff/Respondent.

Michael A. Keefe, Federal Public Defender, Albuquerque, NM, for Defendant/Petitioner.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

GREGORY B. WORMUTH, United States Magistrate Judge

*1 This matter is before the Court on Petitioner's Motion to Vacate and Correct Sentence Pursuant to 28 U.S.C. § 2255 (doc. 1).1 Having reviewed Petitioner's Motion and the United States' response (doc. 7)2 and being fully advised, I recommend Petitioner's Motion be denied.

I. BACKGROUND

Petitioner was charged by a grand jury in a five-count indictment filed on September 5, 2012. Cr. doc. 2. Although he initially pled not guilty, on February 27, 2014 Petitioner entered a changed plea of guilty to Count 5 of the indictment Using, Carrying, Possessing and Brandishing a Firearm During and in Relation to and in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c) pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure.3 Cr. docs. 9, 28, 29, 30, 31. The plea agreement included a binding stipulation to a term of 84 months of imprisonment and a waiver of collateral attack other than for claims of ineffective assistance of counsel. Cr. doc. 30 at 4, 6-7. Following sentencing, the other four counts of the indictment were dismissed upon motion by the United States, in accordance with the terms of the plea agreement.4 See cr. doc. 30 at 7; cr. docs. 37, 38.

At the beginning of the February 27, 2014 change of plea proceeding, Petitioner was placed under oath. Cr. doc. 31 at 1. He stated that he had no illness or condition that impeded his ability to understand the proceedings. Id. Petitioner stated that he was not under the influence of drugs or alcohol and that he understood the proceedings. Id. The Court explained to Petitioner all of the terms and conditions of the agreement, including the loss of certain rights and the other consequences of entering into the agreement. Id. At the conclusion of the proceeding, the Court found that Petitioner fully understood the nature of the charges, that he fully understood the terms of his plea agreement and the consequences stemming therefrom, and that his plea of guilty was freely, voluntarily, and intelligently made. Id.

*2 Prior to sentencing, the United States Probation Office prepared a presentence report (PSR) at the request of the parties. See cr. doc. 33 at 2. As reflected in the PSR, Petitioner's crime of Using, Carrying, Possessing and Brandishing a Firearm During and in Relation to and in Furtherance of a Crime of Violence automatically carried a minimum seven-year (84-month) term of imprisonment pursuant to 18 U.S.C. § 924(c)(1)(A)(ii). PSR ¶ 80; see also U.S.S.G. § 2K2.4(b) (2013) (providing that the applicable guideline sentence for a § 924(c) offense is the minimum term of imprisonment required by statute). The PSR explained that had Petitioner been convicted at trial of all five counts of the indictment, rather than pleading guilty to Count 5 in exchange for the dismissal of Counts 1-4, he would have faced a guideline sentencing range of 130-141 months. PSR ¶ 88. Specifically, his total offense level for Counts 1-4 of the indictment would have been 22 combined with a criminal history category of II, resulting in an imprisonment range of 46-57 months, plus the 84 months of imprisonment for Count 5, which must be imposed to run consecutively pursuant to 18 U.S.C. § 924(c)(1)(D)(ii). PSR ¶¶ 87, 88. Therefore, absent the § 924(c) charge, Petitioner would have faced a guideline range of 46-57 months, which would have been further reduced to the range of 33-41 months had he pled guilty to the remaining Counts 1-4 and received an adjustment for acceptance of responsibility.5 See cr. doc. 33 at 2. Petitioner did not object to any of the findings in the PSR. Cr. doc. 36.

Petitioner pled guilty to violating the following statute:

18 U.S.C. § 924(c)(1)(A).

The same statute defines "crime of violence" as:

18 U.S.C. § 924(c)(3).

The "crime of violence" underlying Petitioner's § 924(c) offense was Assault with a Dangerous Weapon in violation of 18 U.S.C. § 1153 and § 113(a)(3), as charged in Counts 1-3 of the indictment. Cr. doc. 2 at 2-3. In support of his plea of guilty to Count 5, Petitioner specifically admitted to the following facts under penalty of perjury:

Cr. doc. 30 at 3.

Petitioner's Motion argues that the federal offense of Assault with a Dangerous Weapon under 18 U.S.C. § 113(a)(3) is no longer a crime of violence in light of United States v. Johnson, 135 S.Ct. 2551 (2015). Doc. 1 at 2, 6-8. Therefore, Petitioner argues that if sentenced today, he would not qualify for a conviction pursuant to § 924(c)(1)(A). Id. at 3. Petitioner contends that the Johnson decision should be applied retroactively to vacate his conviction of Count 5 of the indictment and to adjust the sentencing guideline range for the remaining 4 counts to 33-41 months. Id. at 9. Consequently, Petitioner argues that he is entitled to resentencing as a matter of due process, as it would be a miscarriage of justice to enforce the 84-month prison sentence to which he agreed in light of the significantly lower guideline range that would be otherwise applicable. Id. at 8-9.

The United States argues that: (1) Johnson does not apply to Petitioner's sentence, and thus Petitioner's motion is time-barred under 28 U.S.C. § 2255(f); (2) Petitioner's waiver of the right to collateral attack in his plea agreement should be enforced to dismiss his motion; and (3) assuming arguendo that Johnson does apply to render 18 U.S.C. § 924(c)(3)(B) (the "`substantial risk' clause") unconstitutional, the charge of assault with a dangerous weapon underlying Petitioner's conviction remains a "crime of violence" under § 924(c)(3)(A) (the "elements clause"). Doc. 7 at 3-11.

II. TIMELINESS

*4 The United States first argues that Petitioner's motion is time-barred. Doc. 7 at 3-6. Under 28 U.S.C. § 2255, a prisoner in federal custody may collaterally attack his sentence as unconstitutional or illegal by bringing a motion in the court which imposed the sentence. 28 U.S.C. § 2255(a). However, the statute requires that such a motion be brought within one year of the later of:

Id. § 2255(f).6 Otherwise, it is time-barred and the Court therefore has no jurisdiction to consider it. See United States v. Blackwell, 81 F.3d 945, 947-49 (10th Cir. 1996) (court does not have inherent power to resentence defendant but must find that power within a statute).7 Petitioner's motion was filed on June 23, 2016, more than a year after his judgment became final, but less than a year after the Johnson decision. See cr. docs. 39, 41. Consequently, for his motion to be timely, Petitioner must show that Johnson newly recognized the right he asserts and that such right was made retroactive. In other words, Johnson must have established that Petitioner's mandatory minimum sentence was unconstitutionally fixed at 84 months pursuant to the "substantial risk" clause of the definition of "crime of violence" contained in 18 U.S.C. § 924(c)(3)(B).

In Johnson, the Supreme Court held that the residual clause of the definition of "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)— "or otherwise involves conduct that presents a serious potential risk of physical injury to another"—is unconstitutionally vague. 135 S. Ct. at 2563. Therefore, individuals could not be subject to the ACCA if their underlying prior convictions qualified as "violent felonies" only under the vague residual clause. Id. The Supreme Court announced that Johnson would apply retroactively on collateral review in Welch v. United States, reasoning that Johnson announced a substantive new rule. 136 S.Ct. 1257, 1264-65 (2016).

However, Petitioner was not sentenced pursuant to the ACCA. Rather, as described above, he faced a mandatory minimum of a seven-year prison sentence due to the applicability of 18 U.S.C. § 924(c)(1)(A)(ii) to his offense. The statute was deemed applicable to his offense on the basis that he had brandished a firearm during and in furtherance of the "crime of violence" of assault with a dangerous weapon. See cr. doc. 2 at 2-3; cr. doc. 30 at 3. Facing this mandatory minimum, Petitioner stipulated to his sentence of seven years or 84 months —of incarceration, and that stipulated sentence was thereafter accepted and imposed by the sentencing judge. Cr. doc. 30 at 4; cr. doc. 36. Petitioner asserts that Johnson nevertheless applies to his sentence because the definition of "crime of violence," as set forth in 18 U.S.C. § 924(c)(3), contains a "substantial risk" clause that is substantially similar to the residual clause in the ACCA.8 Doc. 1 at 4-6; see 18 U.S.C. § 924(c)(3)(B); id. § 924(e)(2)(B) (ii). Moreover, Petitioner contends that assault with a dangerous weapon would not otherwise qualify as a crime of violence absent that "substantial risk" clause. Doc. 1 at 4-6. Thus, Petitioner argues that Johnson established the right he now asserts, qualifying his petition as timely under 28 U.S.C. § 2255(f)(3).

*5 Four circuits have held that Johnson's void-forvagueness holding does not extend to the "substantial risk" clause of 18 U.S.C. § 924(c)(3). See United States v. Prickett, 839 F.3d 697, 699 (8th Cir. 2016) (per curiam); United States v. Taylor, 814 F.3d 340, 375-76 (6th Cir. 2016); United States v. Hill, 832 F.3d 135, 145-150 (2d Cir. 2016); Ovalles v. United States, No. 17-10172, 2017 WL 2829371, at *8-*11 (11th Cir. June 30, 2017). The Seventh Circuit has held to the contrary. See United States v. Cardena, 842 F.3d 959, 995-96 (7th Cir. 2016).

While the Tenth Circuit has not addressed this issue, it has held that Johnson's holding extends to the definition of "crime of violence" contained in 18 U.S.C. § 16(b), which contains language identical to the "substantial risk" clause of § 924(c)(3). See Golicov v. Lynch, 837 F.3d 1065, 1071-75 (10th Cir. 2016). Four other circuits have reached the same conclusion. See United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110, 115 (9th Cir. 2015); Shuti v. Lynch, 828 F.3d 440, 441, 445-51 (6th Cir. 2016); Baptiste v. Attorney Gen., 842 F.3d 601, 615-21 (3d Cir. 2016); but see United States v. Gonzalez-Longoria, 813 F.3d 670, 672-78 (5th Cir. 2016) (en Banc) (holding that the text of the "crime of violence" definition in § 16(b) is textually distinct from the ACCA residual clause and is thus not unconstitutionally vague).9 At first glance, therefore, one might assume that Golicov dictates a similar result in the context of § 924(c)(3). Such an assumption would be perilous.

As cited above, the Sixth Circuit has held that the residual clause of 18 U.S.C. § 16(b) is unconstitutionally vague pursuant to Johnson yet concluded in another case that the identical language of the "substantial risk" clause in § 924(c)(3) is not. Shuti, 828 F.3d at 445-51; Taylor, 814 F.3d at 375-76. The Shuti court distinguished § 924(c) (3)—the statute at issue in Taylor and here—from § 16(b) on the basis that only the latter requires the categorical approach in evaluating whether a given crime "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." Shuti, 828 F.3d at 446. Thus, much like the ACCA, a faithful application of § 16(b) requires an elements-based evaluation of the "risk" involved in the "idealized ordinary case" of a given offense, rather than the risk involved in the instant offense. Johnson, 135 S. Ct. at 2561. In contrast, an offense qualifying as a crime of violence under § 924(c) is always the instant offense—in other words, "creation of risk is an element of the crime." Shuti, 828 F.3d at 449 (quoting Johnson, 135 S. Ct. at 2557).

The Sixth Circuit explained that this distinction "makes all the difference[,]" because "[u]nlike the ACCA which require[s] a categorical approach to stale predicate convictions, 18 U.S.C. § 924(c) is a criminal offense that requires an ultimate determination of guilt beyond a reasonable doubt by a jury, in the same proceeding." Id. Moreover, in real-world applications of § 924(c), courts "have often applied the substantial risk element to the actual conduct in the present case." Id. at 449-50 (internal quotations and alterations omitted); see also United States v. Ramos, 537 F.3d 439, 457 (5th Cir. 2008) (discussing the actual conduct underlying the § 924(c)(1)(A) convictions of two defendant police officers and explaining that the case-specific facts establishing the elements of the offense "were decided by the jury based upon credibility determinations that we, as an appellate court, may not disturb"). Similarly, in holding that the residual clause of 18 U.S.C. § 16(b) is unconstitutionally vague pursuant to Johnson, the Third Circuit also noted the import of the distinction between "crime of violence" definitions requiring the categorical approach versus those that apply to real-world conduct in Baptiste:

841 F.3d at 620-21.

I am persuaded that the Tenth Circuit's holding in Golicov regarding the constitutionality of 16(b) is not controlling regarding the "substantial risk" clause of § 924(c)(3)(B) given that there is no "ordinary case inquiry" involved in a § 924(c) analysis. Moreover, I find persuasive the analyses conducted by Second, Sixth, Eighth and Eleventh Circuit Courts of Appeals, which have held that the "substantial risk" clause of § 924(c)(3)(B) is not unconstitutionally vague under Johnson.

However, I recommend that the Court assume without deciding that Johnson announced the newly recognized right that Petitioner now asserts and that his petition is therefore timely under 28 U.S.C. § 2255(0(3). Several considerations inform this recommendation. First, it is likely that a future hypothetical Supreme Court case will resolve the present circuit split regarding Johnson's applicability to the "substantial risk" clause of 18 U.S.C. § 924(c)(3)(B). Assuming arguendo that the Supreme Court holds that the § 924(c)(3) "substantial risk" clause is unconstitutionally vague pursuant to Johnson, such a holding would likely be considered "merely an application of the principle that governed a prior decision to a different set of facts," which does not constitute a "new rule" or "newly" "recognized right" so as to trigger a new one-year statutory limitation period under § 2255(f)(3).10 Chaidez v. United States, 133 S.Ct. 1103, 1107 (2013). Therefore, the right asserted by Petitioner here has been timely brought within one year of the precedential decision that would dictate any future holding that § 924(c)(3) is similarly unconstitutional.

*7 Second, the Court need not directly decide this question, as I recommend dismissing Petitioner's motion on the alternative grounds that Petitioner's offense of assault with a dangerous weapon is a "crime of violence" under the elements clause of § 924(c)(3), even assuming that the "substantial risk" clause of that statutory provision is unconstitutional. Thus, even assuming that Johnson dictates a finding that the "substantial risk" clause of 924(c)(3) is unconstitutionally vague, Petitioner is not entitled to resentencing.

III. WAIVER OF COLLATERAL REVIEW

As noted above, Petitioner waived his right to bring a collateral attack, such as the instant motion, in his plea agreement. Cr. doc. 30 at 6-7. In its Motion to Dismiss, the United States moves to enforce that waiver here and asks the Court to deny Petitioner's Motion without reaching the merits. Doc. 7 at 6-8. A "waiver of collateral attack rights brought under § 2255 is generally enforceable where the waiver is expressly stated in the plea agreement and where both the plea and the waiver were knowingly and voluntarily made." United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). However, "the constraints which apply to a waiver of the right to direct appeal also apply to a waiver of collateral attack rights." Id. Therefore, in reviewing whether to enforce the waiver of appellate or collateral attack rights, the Court must determine: (1) whether the disputed appeal falls within the scope of the waiver of appellate [or collateral attack] rights; (2) whether the defendant knowingly and voluntarily waived his appellate [or collateral attack] rights; and (3) whether enforcing the waiver would result in a miscarriage of justice. See United States v. Hahn, 359 F.3d 1315, 1325-1327 (10th Cir. 2004). Petitioner does not dispute that his Motion falls within the collateral attack waiver in his plea agreement. See doc. 1 at 8-9. Nor does he argue that he did not knowingly and voluntarily waive his collateral attack rights. Id. He only contends that enforcing the waiver would result in a miscarriage of justice. Id.

The Tenth Circuit Court of Appeals has held "that enforcement of [such a] waiver does not result in a miscarriage of justice unless enforcement would result in one of . . . four situations. . . ." Hahn, 359 F.3d at 1327. Those situations are: "[1] where the district court relied on an impermissible factor such as race[;] [2] where ineffective assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid[;] [3] where the sentence exceeds the statutory maximum[;] or [4] where the waiver is otherwise unlawful." Id. (quoting United States v. Elliott, 264 F.3d 1171, 1173 (10th Cir. 2001)).

Petitioner argues that the third Elliott exception applies because although his sentence does not exceed the statutory maximum, "it was a dramatic increase over the otherwise applicable guideline range[,]" which he contends amounts to a miscarriage of justice. Doc. 1 at 9. However, Petitioner pled guilty to only one crime brandishing a firearm in violation of 18 U.S.C. § 924(c)(1)(A). Under his argument, he was not guilty of that crime. Therefore, one could argue that any sentence for that crime exceeded the statutory maximum to which he could be sentenced. Consequently, Petitioner's waiver could not be enforced under Hahn if the Court accepted the merits of his position that he was not guilty of the crime of conviction. Because Petitioner does not clearly make this argument and because I conclude that Petitioner's Motion should be denied on the merits, I recommend that the Court not enforce the waiver of collateral attack rights.

IV. ASSAULT WITH A DANGEROUS WEAPON IS A "CRIME OF VIOLENCE" UNDER THE ELEMENTS CLAUSE OF THE STATUTORY DEFINITION

*8 I recommend denying Petitioner's Motion because his conviction for assault with a dangerous weapon remains a crime of violence under the elements clause (18 U.S.C. § 924(c)(3)(A)), even assuming the unconstitutionality of the "substantial risk" clause (id. § 924(c)(3)(B)). As discussed above, the elements clause contained in § 924(c) defines as a "crime of violence" any felony offense that "has as 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). The Supreme Court explained in Johnson v. United States, 559 U.S. 133, 140 (2010)11 that the term "physical force" as used in the ACCA "means violent force that is, force capable of causing physical pain or injury to another person." Nonetheless, the force required to satisfy that element need not be sufficient to cause serious injury it "might consist . . . of only that degree of force necessary to inflict pain a slap in the face, for example." Id. at 1272. Therefore, in evaluating whether Petitioner's conviction of assault with a dangerous weapon constitutes a crime of violence under the elements clause of § 924(c)(3), the Court must first consider whether the statute defining that offense necessarily proscribes conduct that "has as an element the use, attempted use, or threatened use of" violent force against the person of another. If so, it is a crime of violence under § 924(c)(3) notwithstanding the "substantial risk" clause.

Petitioner's conviction stemmed from a violation of the following statute regarding assaults within maritime and territorial jurisdiction, as his crime occurred in Indian Country:

18 U.S.C. § 113(a)(3); see also id. § 1153(a) ("Any Indian who commits against the person or property of another Indian or other person . . . a felony assault under section 113 . . . within the Indian country, shall be subject to the same law and penalties as all other persons committing [the same offense], within the exclusive jurisdiction of the United States.").

A dangerous weapon is defined as "anything capable of being readily operated or wielded by one person to inflict severe bodily harm or injury upon another person." TENTH CIRCUIT COURT OF APPEALS CRIMINAL PATTERN JURY INSTRUCTION 2.09 (2011). While Congress does not define the term "assault" in the statute, the Tenth Circuit has "presumed that [Congress] intended to embrace the common law meaning" of assault. Brundage v. United States, 365 F.2d 616, 619 (10th Cir. 1966). The Brundage court held that a trial court's jury instructions on the § 113(a)(3) offense of assault with a dangerous weapon were "in complete conformity with the applicable law" where the instructions: (1) defined assault as "an attempt coupled with the present ability to commit a violent injury upon the person of another"; (2) explained that assault "does not require that there shall have been a completed act, [as] the attempt alone is sufficient to constitute an assault, provided that it is in such close proximity with the person that it can be said that it is committed in a manner whereby there is an apparent present ability to carry out the attempt"; and (3) stated "that specific intent was an essential ingredient of the offense and that [t]his means that the act was committed knowingly, that is[,] with knowledge as to what the defendant was doing and with the desire or wish to bring about a serious bodily injury to the person of the other." Id. (internal quotations omitted).

While there is no Tenth Circuit pattern jury instruction on this specific statutory offense, the Committee Commentary on the pattern jury instructions for 18 U.S.C. § 111—the statute criminalizing "assaulting, resisting, or impeding certain officers or employees"— cites United States v. Bruce, 458 F.3d 1157, 1165 (10th Cir. 2006), cert. denied, 127 S.Ct. 999 (2007), as the instructive case regarding "how the various subsections of the statute, § 113(a)(1) to (a)(7), relate in terms of lesser-included offenses." TENTH CIRCUIT COURT OF APPEALS CRIMINAL PATTERN JURY INSTRUCTION 2.09 cmt. (2011). In Bruce, the Tenth Circuit explained that "[t]he elements differentiating assault with a dangerous weapon from simple assault are the use of a deadly weapon and the intent to commit bodily harm." 458 F.3d at 1165 n.4. In order to obtain a conviction under § 113(a) (3), a jury must find beyond a reasonable doubt that a defendant committed the assault "intentionally, with a dangerous weapon, and with a desire to do bodily harm." United States v. Tsosie, 288 Fed.Appx. 496, 501 (10th Cir. 2008) (unpublished); see also NINTH CIRCUIT COURT OF APPEALS MODEL CRIMINAL JURY INSTRUCTION 8.7 (2010) (explaining that the elements of the crime of assault with a dangerous weapon are: (1) the defendant assaulted the victim by intentionally striking or wounding the victim, or using a display of force that reasonably caused the victim to fear immediate harm; (2) the defendant acted with the intent to do bodily harm to the victim; (3) the defendant used a dangerous weapon; and (4) the assault took place on a place of federal jurisdiction).

*9 The Tenth Circuit has addressed a closely related question to the one before the Court now in two cases. See United States v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010); United States v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016). In Ramon Silva, the court held that "apprehension causing" aggravated assault under New Mexico law qualifies as a violent felony under the ACCA elements clause, which is, as relevant here, identical to the elements clause in § 924(c).12 608 F.3d at 670-71. In reaching that conclusion, the court first explained that the crime "requires proof that a defendant purposefully threatened or engaged in menacing conduct toward a victim, with a weapon `capable of producing death or great bodily harm[.]'" Id. at 670. The court held that these requirements together qualified the offense as a violent felony under the elements clause because "[t]hreatening or engaging in menacing conduct toward a victim, with a weapon capable of producing great bodily harm, threatens the use of `violent force' because by committing such an act, the aggressor communicates to his victim that he will potentially use `violent force' against the victim in the near future." Id. Similarly, as explained above, assault with a dangerous weapon under federal law requires both intentional use of a weapon that is "capable of being readily operated . . . to inflict severe bodily harm or injury upon another person" as well as intent to commit bodily harm. Therefore, it qualifies as a crime of violence under the elements clause of § 924(c)(3) for the same reasons.

This conclusion is further bolstered by the Tenth Circuit's later holding in Maldonado-Palma. There, the court concluded that any form of aggravated assault with a deadly weapon in New Mexico not—just the "apprehension causing" form discussed in Ramon Silva— was a crime of violence under the elements clause of U.S.S.G. § 2L1.2, which is identical to the elements clause of the ACCA.13 Specifically, the defendant in Maldonado-Palma argued that "assaulting someone by using insulting language while possessing a deadly weapon would qualify as aggravated assault [in New Mexico] . . . but that it does not [satisfy the elements clause of § 2L1.2]." 839 F. 3d at 1249. The court rejected the defendant's argument, explaining that even the "insulting language" form of aggravated assault requires the use of a deadly weapon; mere possession of such a weapon does not suffice. Id. at 1249-50. Therefore, the court reasoned that a defendant must somehow "employ the deadly weapon in committing the assault" and held that "[e]mploying a weapon that is capable of producing death or great bodily harm or inflicting dangerous wounds in an assault necessarily threatens the use of physical force" under the Johnson I standard. Id. at 1250.

There can be no doubt that assault with a dangerous weapon under 18 U.S.C. § 113 requires the use, rather than mere possession, of a firearm. See United States v. Johnson, 967 F.2d 1431, 1436 (10th Cir. 1992), abrogated on other grounds by Lewis v. United States, 523 U.S. 155, 162-65 (1998) (elements of crime include "use of a deadly weapon and the intent to commit bodily harm"). Indeed, the Tenth Circuit has expressly held that aggravated assault under N.M. Stat. Ann. § 30-3-2(A)—the precise crime at issue in Maldonado-Palma—requires proof of all of the elements of assault with a dangerous weapon under 18 U.S.C. § 113 and has no elements not included in the federal crime.14 Id. at 1433-36; see also United States v. Abeyta, 27 F.3d 470, 473-74 (10th Cir. 1994). The Tenth Circuit explained that the only distinction between the two statutes is that the New Mexico version, unlike the federal statute, does not require any showing that the defendant specifically intended to inflict bodily harm on his victim. Johnson, 967 F.2d at 1433. As the Tenth Circuit has determined that the lesser version of the crime under New Mexico law satisfies the Johnson I standard for a crime of violence, it inexorably follows that the more serious version under federal law does as well.15

*10 Because Tenth Circuit precedent forecloses Petitioner's argument that assault with a dangerous weapon under 18 U.S.C. § 113 is not a crime of violence after Johnson I, his claim fails. Nonetheless, I will address one remaining argument from Petitioner. He argues that assault with a dangerous weapon does not qualify as a crime of violence under the elements clause because it "does not have a requirement of violent force." Specifically, Petitioner argues that the elements of assault with a dangerous weapon would be satisfied if a defendant "mail[ed] a package containing anthrax to the mailroom of a large office . . . [or] delivered polonium-210 via a cup of tea. . . ." Doc. 1 at 7-8. While Petitioner acknowledges that said cup of tea "is certainly a dangerous weapon," he argues that "its being brewed, poured, and sipped falls short of the type of activity associated with `violen[t] force[.]'" Id. Petitioner's arguments in this regard are likely foreclosed by the Supreme Court's decision in United States v. Castleman, 134 S.Ct. 1405 (2014). The defendant in Castleman posed a similar argument that, while he committed a crime that required him to have "intentionally or knowingly cause[d] bodily injury to" the victim, such a crime did not have as an element the use of physical force because "one can cause bodily injury without violent contact for example, by deceiving the victim into drinking a poisoned beverage." 134 S. Ct. at 1409 (internal quotations omitted). However, the Supreme Court found that such conduct does in fact entail the use of force:

Id. at 1414-15 (internal citations to defendant's briefing omitted).

Castleman dealt with the force required under the definition of "misdemeanor crime of domestic violence" in 18 U.S.C. § 922(g)(9), which the Court held to be a lesser amount of force than that required under the Johnson I standard. See id. at 1409-13. However, the reasoning cited above still applies in considering whether Petitioner's federal offense of assault with a dangerous weapon requires the use of violent force. As the Fourth Circuit has explained, "the [Castleman] Court relied significantly on Johnson in rejecting a proffered limitation on the term `physical force.'" United States v. Reid, F.3d 2017 WL 2782624, *4 (4th Cir. June 28, 2017) (quoting Castleman, 134 S. Ct. at 1414 ("[A]s we explained in Johnson, `physical force' is simply `force exerted by and though concrete bodies'"); cf. id. at 1416-17 (Scalia, J., concurring in part and concurring in the judgment) ("[I]t is impossible to cause bodily injury without using force `capable of' producing that result")). Just as the Fourth Circuit did with respect to the ACCA, "by applying the combination of Johnson and Castleman, [I] conclude that [§ 924(c)'s] phrase `use of physical force' includes force applied directly or indirectly." Id. Therefore, Petitioner's argument must fail.

V. CONCLUSION

*11 The offense of assault with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3) remains a "crime of violence" under id. § 924(c)(3) even without the "substantial risk" clause. As such, even after Johnson II, Petitioner was rightly charged with and convicted of the offense of using a firearm during and in relation to a crime of violence under § 924(c)(1)(A)(ii) due to his brandishing of a firearm in furtherance of the offense of assault with a dangerous weapon. Therefore, I recommend denying Petitioner's motion on that ground.

All Citations

Not Reported in Fed. Supp., 2017 WL 3084454

Attorneys and Law Firms

Jacob Wishard, U.S. Attorney's Office, Albuquerque, NM, for Respondent.

Michael A. Keefe, Federal Public Defender, Albuquerque, NM, for Petitioner.

ORDER OVERRULING PETITIONER'S OBJECTIONS, ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, AND DENYING PETITIONER'S § 2255 MOTION

MARTHA VAZQUEZ, UNITED STATES DISTRICT JUDGE

*1 This matter comes before the Court on Petitioner's objections (doc. 12)1 to the Magistrate Judge's Proposed Findings and Recommended Disposition ("PFRD") (doc. 8) recommending that the Court deny Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (doc. 1). Being fully advised, the Court will overrule Petitioner's objections, adopt the PFRD, and deny Petitioner's § 2255 motion.

I. BACKGROUND

On February 27, 2014, Petitioner pled guilty to the offense of Using, Carrying, Possessing and Brandishing a Firearm During and in Relation to and in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c). Cr. does. 30, 31. The statute Petitioner pled guilty to violating provides in pertinent part:

18 U.S.C. § 924(c)(1)(A). The same statute defines "crime of violence" as:

18 U.S.C. § 924(c)(3).

The "crime of violence" underlying Petitioner's § 924(c) offense was Assault with a Dangerous Weapon in violation of 18 U.S.C. § 1153 and § 113(a)(3), as charged in Counts 1-3 of the indictment. Cr. doc. 2 at 2-3. In his plea agreement, Petitioner stipulated to the facts that he "knowingly used, carried, and brandished a firearm . . . during and in relation to, and possessed and brandished said firearm in furtherance of, a crime of violence for which I may be prosecuted in a court of the United States, to wit: Assault with a Dangerous Weapon in violation of 18 U.S.C. § 113." Cr. doc. 30 at 3.

Prior to sentencing, the United States Probation Office prepared a presentence report (PSR), which concluded in pertinent part that the offense of conviction automatically carried a minimum seven-year (84-month) term of imprisonment pursuant to 18 U.S.C. § 924(c)(1)(A)(ii). PSR ¶ 80; see also U.S.S. G. § 2K2.4(b) (2013) (providing that the applicable guideline sentence for a § 924(c) offense is the minimum term of imprisonment required by statute). In accordance with this understanding of the applicable minimum term of imprisonment, Petitioner, in his plea agreement, stipulated to a term of 84 months of imprisonment. Cr. doc. 30 at 4. At sentencing, the Court accepted the plea agreement and sentenced Petitioner to 84 months, or seven years, of imprisonment followed by two years of supervised release.2 Cr. docs. 36, 39.

*2 Following sentencing, in compliance with the plea agreement, the United States moved to dismiss the remaining four counts of the five-count indictment, which included three counts of Assault with a Dangerous Weapon in violation of 18 U.S.C. § 113(a)(3) and one count of Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). See cr. doc. 2 at 1-2; cr. doc. 30 at 7; cr. doc. 37. The Court granted the motion. Cr. doc. 38.

On June 23, 2016, Petitioner filed the present motion pursuant to 28 U.S.C. § 2255, seeking to have his conviction vacated on the basis that the federal offense of Assault with a Dangerous Weapon under 18 U.S.C. § 113(a)(3) is no longer a "crime of violence" under 18 U.S.C. § 924(c)(3) in light of United States v. Johnson, 135 S.Ct. 2551 (2015). Doc. 1 at 2, 6-8. Therefore, Petitioner argues that if sentenced today, he would not qualify for a conviction pursuant to § 924(c)(1)(A). Id. at 3.

Johnson struck down as unconstitutionally vague the residual clause of the definition of "violent felony" under the Armed Career Criminal Act ("ACCA"), which is not the statutory provision underlying Petitioner's conviction. See 18 U.S.C. § 924(e)(2)(B). Nonetheless, Petitioner argues that the definition of "crime of violence" in 18 U.S.C. § 924(c)(3) contains a clause (the "substantial risk" clause) that is sufficiently similar to the ACCA's residual clause for the Court to find that the substantial risk clause is also unconstitutionally vague pursuant to Johnson.

Thus, Petitioner contends that the Johnson decision should be applied retroactively to vacate his conviction of Count 5 of the indictment and to adjust the sentencing guideline range for the four previously dismissed counts to 33-41 months.3 Id. at 9. Consequently, Petitioner argues that he is entitled to resentencing as a matter of due process, as it would be a miscarriage of justice to enforce the 84-month prison sentence to which he agreed in light of the significantly lower guideline range that would otherwise be applicable if the other four counts were reinstated and he were to plead guilty to them. Id. at 8-9.

The United States responded to Petitioner's § 2255 motion on May 19, 2017, styling its response as a motion to dismiss the petition. Doc. 7. The motion to dismiss argued that (1) because Johnson does not apply to Petitioner's sentence, his motion is not timely under § 2255(f); (2) Petitioner's waiver of collateral attack contained in his plea agreement should be enforced to bar the petition; and (3) even if Johnson does apply to invalidate the "substantial risk" clause of 18 U.S.C. § 924(c)(3)(B), the charge of assault with a dangerous weapon underlying Petitioner's conviction remains a "crime of violence" under the "elements clause" of the same statute. See § 924(c)(3)(A).

*3 The Magistrate Judge filed his PFRD on July 19, 2017. Doc. 8. First, he recommended that the Court assume without deciding that Petitioner's motion is timely under § 2255(f)(3). See id. at 12-13. Second, he recommended that the Court decline to enforce Petitioner's waiver of collateral attack contained in his plea agreement. Id. at 13-15. Third, and most significantly, the Magistrate Judge recommended the Court find that Petitioner's offense of assault with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3) remains a crime of violence under the "elements clause" of § 924(c)(3). Id. at 15-24. Therefore, he recommended the Court deny Petitioner's § 2255 motion and grant the United States' motion to dismiss.

Petitioner filed objections to the PFRD on October 2, 2017. Doc. 12. Petitioner objects only to the third recommended finding discussed above that assault with a dangerous weapon remains a crime of violence under the elements clause of 18 U.S.C. § 924(c)(3), regardless of whether Johnson applies to invalidate the substantial risk clause of the same provision. See generally id. The United States filed no objections.4

I. LEGAL STANDARD APPLICABLE TO OBJECTIONS

Petitioner's Motion (doc. 1) was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B). See doc. 3. Under that referral provision, the Court's standard of review of a magistrate judge's PFRD is de novo. See 28 U.S.C. § 636(b)(1)(C). When resolving objections to a magistrate judge's PFRD, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." FED. R. CIV. P. 72(b)(3). The Tenth Circuit has held "that a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). When neither party objects to a finding or recommendation, no further review by the district court is required. See Thomas v. Arn, 474 U.S. 140, 151-52 (1985). Further, "[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived." Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).

II. ADOPTION OF FINDINGS AND RECOMMENDATIONS WITHOUT OBJECTIONS

Neither party objected to the Magistrate Judge's recommendations that (1) the Court should assume, without deciding, that Johnson applies to invalidate the "substantial risk" clause contained in 18 U.S.C. § 924(c) (3)(B), making Petitioner's motion timely under 28 U.S.C. § 2255(0(3), and (2) Petitioner's collateral attack waiver should not be enforced to bar the present petition. The Court agrees with these proposed findings and hereby adopts them as its own.

Therefore, the only question left before the Court is whether Petitioner's offense of assault with a dangerous weapon constitutes a "crime of violence" under the elements clause contained in 18 U.S.C. § 924(c)(3)(a)— that is, whether it "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." If so, then Petitioner was properly convicted of Count 5 of the indictment, as he used, carried, possessed, and brandished a firearm during, in relation to, and in furtherance of a crime of violence.

III. ANALYSIS

*4 As discussed above, the elements clause contained in § 924(c) defines as a "crime of violence" any felony offense that "has as 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). The Supreme Court explained in Johnson v. United States, 559 U.S. 133, 140 (2010)5 that the term "physical force" as used in the ACCA "means violent force that is, force capable of causing physical pain or injury to another person." Nonetheless, the force required to satisfy that element need not be sufficient to cause serious injury it "might consist . . . of only that degree of force necessary to inflict pain a slap in the face, for example." Id. at 1272. Therefore, in evaluating whether Petitioner's conviction of assault with a dangerous weapon constitutes a crime of violence under the elements clause of § 924(c)(3), the Court must first consider whether the statute defining that offense necessarily proscribes conduct that "has as an element the use, attempted use, or threatened use of" violent force against the person of another. If so, it is a crime of violence under § 924(c)(3) notwithstanding the substantial risk clause.

Petitioner first objects that the Magistrate Judge "failed to recognize" that an assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6) could be committed "by acting in a way that put another in reasonable apprehension of bodily harm and produced serious bodily injury without use of physical force, such as by use of hazardous chemicals or other toxic substances." Doc. 12 at 2. However, Petitioner's predicate conviction at issue is assault with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3), not assault resulting in serious bodily injury under subsection (a)(6) of the same provision. See cr. doc. 2; cr. doc. 30 at 3. While it is true that the Magistrate Judge began his analysis of the offense of assault with a dangerous weapon by first defining the term "assault," as contained in § 113(a), by reference to the common law definition of simple assault, he did not offer any conclusions regarding whether either simple assault or assault resulting in serious bodily injury under § 113(a)(6) qualifies as a crime of violence under the elements clause. This objection is therefore without merit, and the Court overrules it.

Next, Petitioner argues that "almost anything" could qualify as a "dangerous weapon" underlying the offense of assault with a dangerous weapon, including objects such as "walking sticks, leather straps, rakes, tennis shoes, rubber boots, dogs, rings, concrete curbs, cloth[ing] irons, and stink bombs." Doc. 12 at 2 (quoting United States v. Tissnolthtos, 115 F.3d 759, 763 (10th Cir. 1997) and United States v. Dayea, 32 F.3d 1377, 1379 (9th Cir. 1994)). Petitioner further explains that a conviction under § 113(a) (3) could be upheld where such a "dangerous weapon" is merely possessed or displayed during the assault, and where the offender has the intent to cause bodily harm. Id. Petitioner thus posits that the act of "[s]etting off a stink bomb" meets the requirements of the statute's minimum culpable conduct without involving the use, attempted use, or threatened use of force "capable of causing physical pain or injury to another person," as required to come within the ambit of 18 U.S.C. § 924(c)(3) (a). The Court rejects this argument for several reasons.

As aptly explained by the Magistrate Judge in his PFRD, setting off a stink bomb could not rise to the level of assault with a dangerous weapon under the statute at issue unless (1) the stink bomb is "capable of being readily operated or wielded by one person to inflict severe bodily harm or injury upon another person," and (2) the perpetrator set off the stink bomb with "specific intent . . . and with the desire or wish to bring about a serious bodily injury to the person of another." See doc. 8 at 17-18; TENTH CIRCUIT COURT OF APPEALS CRIMINAL PATTERN JURY INSTRUCTION 2.09 (2011) (defining "dangerous weapon," as used in 18 U.S.C. § 113(a)(3)); see also Brundage v. United States, 365 F.2d 616, 619 (10th Cir. 1966). Any "stink bomb" attack that does indeed meet these requirements would also necessarily involve the use or attempted use of force "capable of causing pain and injury to another person."

*5 Conversely, any use of a typical "stink bomb" that merely emits a foul odor would not meet the applicable definition of an object "capable of being readily operated or wielded . . . to inflict severe bodily harm or injury upon another person," and there would accordingly be no "realistic probability" that the statute would apply to such use. See Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (the "minimum [culpable] conduct" punished under a given statute must be construed to include only conduct to which there is a "realistic probability, not a theoretical possibility" the state statute would apply.).

Moreover, Defendant's reliance on Tissnolthtos, 115 F.3d at 762-63, for the proposition that a stink bomb would qualify as a dangerous weapon under 18 U.S.C. § 113 is unavailing for a number of reasons. First, that case dealt with the guidelines definition of "dangerous weapon," which is not identical to the Tenth Circuit pattern definition of the same term in the federal assault statute. Id. at 762-63. It is therefore not controlling as to which objects might qualify as "dangerous weapons" as that term is used in 18 U.S.C. § 113(a)(3).

Second, the Tenth Circuit in Tissnolthtos was explaining that a piece of firewood was properly classified as a dangerous weapon under the applicable guidelines definition "when it is used to inflict serious bodily injury, as it was in this case." Id. at 763 (emphasis added). In support, the Tenth Circuit cited to the persuasive authority of United States v. Dayea, 32 F.3d 1377, 1379 (9th Cir. 1994), also applying the guidelines definition of "dangerous weapon" and explaining: "courts have found that, in the proper circumstances, almost anything can count as a dangerous weapon, including walking sticks, leather straps, rakes, tennis shoes . . . and stink bombs." Id. (collecting cases). Notably, the Dayea court qualified this list of items as only meeting the definition of "dangerous weapon" in the "proper circumstances." Therefore, to the extent that the Ninth Circuit considered a stink bomb a "dangerous weapon" under the guidelines definition at issue, it qualified that categorization by immediately thereafter explaining that it could only be so considered if such an object is used "in its capacity as a weapon that is, us[ed] for the purpose of injuring or threatening to injure." Id. at 1380.

Additionally, the case on which the Ninth Circuit relied for the proposition that a stink bomb might be a dangerous weapon was People v. Orlando, a Michigan Supreme Court case. See 9 N.W.2d 893, 894 (Mich. 1943). That case, in turn, dealt with a provision of the Michigan state constitution which enumerated types of items that are admissible as evidence in criminal cases even if unconstitutionally seized by a police officer, including "any [ ] dangerous weapon or thing." Id. at 895. No definition of "dangerous weapon" was provided by either the Michigan constitutional provision applied in Orlando or by the court itself in concluding that "[i]n our opinion, a stench bomb, as used in this case, was a dangerous weapon and as such was within the meaning of the proviso of this section of" the state constitution. Id. In other words, the definition of "dangerous weapon" in the Michigan Supreme Court case is even further removed from the statute presently at issue than is the guidelines definition of "dangerous weapon."

And, in any event, even if it were to accept arguendo that the definition of "dangerous weapon" at issue here matches the definition of "dangerous weapon" under the Michigan constitutional provision at issue in a 74-yearold Michigan Supreme Court case, Petitioner's argument would still fail, because he ignores that a conviction under 18 U.S.C. § 113(a)(3) requires the use of a deadly weapon coupled with the intent to commit bodily harm. See United States v. Bruce, 458 F.3d 1157, 1165 n.4 (10th Cir. 2006), cert. denied, 127 S.Ct. 999 (2007) ("[t]he elements differentiating assault with a dangerous weapon from simple assault are the use of a deadly weapon and the intent to commit bodily harm."); see also TENTH CIRCUIT COURT OF APPEALS CRIMINAL PATTERN JURY INSTRUCTION 2.09 cmt. (2011) (instructing courts to apply Bruce to determine "how the various subsections of the statute, § 113(a)(1) to (a)(7), relate in terms of lesser-included offenses.").

*6 In sum, the Court finds that it is impossible to (1) knowingly, and with specific intent, (2) "attempt . . . to commit a violent injury upon the person of another," coupled with the "present ability" to do so, (3) while using an object "capable of being readily operated or wielded by one person to inflict severe bodily harm or injury upon another person," (4) "with the desire or wish to bring about a serious injury to the person of the other," without either using or attempting to use physical force that is "capable of causing pain or injury to another person." Brundage, 365 F.2d at 619; TENTH CIRCUIT COURT OF APPEALS CRIMINAL PATTERN JURY INSTRUCTION 2.09 (2011); Johnson I, 559 U.S. at 140. This conclusion holds true even if the object used by the perpetrator is a stink bomb, although the Court finds it unlikely that any use of a stink bomb could meet the above-listed requirements. Accordingly, Petitioner's second objection is overruled.

Petitioner's final objection is that the Tenth Circuit "has long recognized that, to satisfy the force clause, an element of the offense must `focus on the means by which an injury occurs (the use of physical force)' rather than `on the result of a defendant's conduct, i.e., bodily injury.'" Doc. 12 at 3 (quoting United States v. Perez-Vargas, 414 F.3d 1282, 1285 (10th Cir. 2005)). He therefore disagrees with the Magistrate Judge's reliance on the Supreme Court decision of United States v. Castleman, 134 S.Ct. 1405 (2014), for the conclusion that Johnson I "physical force" can be employed indirectly, such as by mailing anthrax to a victim or by poisoning someone's drink. Id. at 3-4; see also doc. 8 at 22-24. Petitioner argues to the contrary that such conduct does not constitute the "use of" physical force, and that Castleman is inapposite because it dealt with a statute requiring only common-law "force," which includes even the slightest offensive touching. See doc. 12 at 3-4.

The Court agrees with the Magistrate Judge's conclusion that Castleman is instructive in understanding what type of conduct might qualify as the "use of force" against the person of another. As the Magistrate Judge noted, that opinion explained:

134 S. Ct. at 1414-15 (internal citations to defendant's briefing omitted).

Petitioner is correct that Castleman addressed the force required under the definition of "misdemeanor crime of domestic violence," in 18 U.S.C. § 922(g)(9), which the Court held to be a lesser amount of force than that required under the Johnson I standard. See id. at 1409-13. However, the admitted distinction in degree between the force required to satisfy the domestic violence offense and that required to satisfy the Johnson I standard has no bearing on whether the Supreme Court's analysis regarding whether indirect action can qualify as the use of force in any degree is applicable here. Indeed, in rejecting the defendant's argument that indirect force cannot constitute "use" of physical force in Castleman, the Supreme Court made the point that "[u]nder Castleman's logic, after all, one could say that pulling the trigger on a gun is not a `use of force' because it is the bullet, not the trigger, that actually strikes the victim." Id. at 1415. Shooting a victim with a gun undisputedly satisfies the Johnson I standard of "force capable of causing pain or injury to another person." Therefore, the Castleman Court clearly indicated, by way of this illustrative example, that its analysis as to what constitutes the "use of force" under the domestic violence statute extends to any "use of force," no matter the degree.

*7 Consequently, several circuit courts have looked to Castleman when addressing arguments, such as Petitioner's, about whether the Johnson I standard of physical force requires such force to be applied directly. Of these, nine have determined that Castleman is apposite even when considering statutes that require Johnson I "physical force" rather than the lesser force required by the misdemeanor domestic violence statute discussed in Castleman. See United States v. Love, No. 15-CR-20098-JAR, 2017 WL 4123301, at *7 nn.50-58 (D. Kan. Sept. 18, 2017) (citing United States v. Hill, 832 F.3d 135, 143 (2d Cir. 2016) (relying on Castleman to examine what constitutes "physical force" in the § 924(c)(3)(A) elements clause context, which is the question before the Court here); United States v. Edwards, 857 F.3d 420, 426 (1st Cir. 2017) (relying on Castleman to examine what constitutes "physical force" in the ACCA elements clause context); United States v. Burns-Johnson, 864 F.3d 313, 318 (4th Cir. 2017) (same); United States v. Jennings, 860 F.3d 450, 458-60 (7th Cir. 2017) (same); United States v. Winston, 845 F.3d 876, 878 (8th Cir. 2017) (same); United States v. Redrick, 841 F.3d 478, 484-85 (D.C. Cir. 2016) (same); United States v. Chapman, 866 F.3d 129, 132-33 (3d Cir. 2017) (relying on Castleman to examine what constitutes "physical force" in the guidelines "crime of violence" elements clause context); United States v. Haldemann, 664 Fed.Appx. 820, 822 (11th Cir. 2016) (same); United States v. Calvillo-Palacios, 860 F.3d 1285, 1291 (9th Cir. 2017) (same)); hut see United States v. Gatson, 776 F.3d 405, 411 (6th Cir. 2015) (limiting Castleman's applicability to the context of misdemeanor domestic violence).

The Court agrees with the great weight of persuasive authority that the analysis from Castleman regarding what constitutes the use of "physical force" is controlling even outside the misdemeanor domestic violence context. To the extent that the Tenth Circuit's decision in Perez-Vargas6 suggested that an offense must require that physical force be applied directly in order for it to "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another," this Court agrees with the numerous other courts which have concluded that Castleman limited or abrogated Perez-Vargas on this point. See Love, 2017 WL 4123301, at *7 (noting that "kit least three district courts in the Tenth Circuit, including this Court, have found that Castleman abrogates or limits Perez-Vargas's holding" (citing to Sarracino v. United States, No. 16-734, 2017 WL 3098262, at *7 (D.N.M. June 26, 2017); United States v. Breshers, No. 10-40107, 2017 WL 2378349 at *2 n.2 (D. Kan. June 1, 2017) (unpublished); and United States v. Pikyavit, No. 16-CV-00729, 2017 WL 1288559 at *4-7 (D. Utah Apr. 6, 2017) (unpublished), appeal docketed, No. 17-4068 (10th Cir. May 1, 2017))). Therefore, despite the fact that assault with a dangerous weapon can be committed without direct physical contact, such as by poisoning, it nevertheless requires the use or attempted use of "physical force capable of causing pain or injury to another person," meeting the Johnson I standard based on the reasoning in Castleman.

More importantly, even if the Court were to follow Perez-Vargas rather than Castleman in determining what constitutes the "use of force," Petitioner's offense of aggravated assault with a deadly weapon is distinguishable from the third degree assault offense at issue in Perez-Vargas, and the nature of the distinction dooms Petitioner's argument. Namely, as already discussed, assault with a dangerous weapon requires specific intent: the assault must be "committed knowingly, that is[,] with knowledge as to what the defendant was doing and with the desire or wish to bring about a serious bodily injury to the person of the other." Brundage, 365 F.2d at 619. It must be committed "intentionally . . . and with a desire to do bodily harm." United States v. Tsosie, 288 Fed.Appx. 496, 501 (10th Cir. 2008) (unpublished).

*8 Therefore, unlike the assault statute discussed in Perez-Vargas, which could be satisfied by any knowing, reckless, or criminally negligent conduct resulting in any bodily injury, the federal statute criminalizing assault with a dangerous weapon requires intentional, knowing conduct aimed at bringing about a serious bodily injury to the person of another. Thus, it is not a crime that "focuses on the result of a defendant's conduct" like the assault offense found not to satisfy the elements clause in Perez-Vargas. 414 F.3d at 1285. Rather, it is more readily likened to the aggravated assault with a deadly weapon offense at issue in United States v. Maldonado-Palma, which required proof that a defendant "[e]mploy[ed] a weapon that is capable of producing death or great bodily harm . . . in an assault[,]" which the Tenth Circuit held "necessarily threatens the use of physical force" under the Johnson I standard. 839 F.3d at 1250 (10th Cir. 2016). Indeed, as discussed by the Magistrate Judge, the crime of aggravated assault at issue in Maldonado-Palma requires proof of all of the elements of assault with a dangerous weapon under 18 U.S.C. § 113. The only distinction between the two offenses is that the federal statute requires the additional showing that the defendant specifically intended to inflict bodily harm on the victim. See United States v. Johnson, 967 F.2d 1431, 1433-36 (10th Cir. 1992), abrogated on other grounds by Lewis v. United States, 523 U.S. 155, 162-65 (1998).

Accordingly, the Court finds that the offense of assault with a dangerous weapon satisfies the elements clause of 18 U.S.C. § 924(c)(3) notwithstanding the Tenth Circuit's holding in Perez-Vargas and therefore overrules Petitioner's third objection.

IV. CONCLUSION

Petitioner's offense of assault with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3) remains a "crime of violence" under the elements clause of id. § 924(c)(3). Petitioner's conviction under id. § 924(c)(1)(A) for using and brandishing a firearm during and in relation to a crime of violence therefore remains valid notwithstanding Johnson Ifs applicability to the "substantial risk" clause contained in id. § 924(c)(3). The Court therefore agrees with the PFRD and adopts it in its entirety, and Petitioner's objections thereto are overruled.

Additionally, the United States' Response to Petitioner's § 2255 Motion (doc. 7) was styled as a motion to dismiss the petition. Therefore, based on the reasoning contained herein, that motion will be granted.

The Court must issue or deny a certificate of appealability (COA) when it enters a final order adverse to the applicant. A COA should issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). An applicant can satisfy this standard by demonstrating that the issues raised are debatable among jurists, a court could resolve the issues differently, or the questions deserve further proceedings. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). After careful consideration of the issues raised in Petitioner's motion, the Court will deny a COA.

NOW, THEREFORE, IT IS ORDERED, ADJUDGED and DECREED that:

All Citations

Not Reported in Fed. Supp., 2017 WL 5989198

(D.C. Nos. 1:16-CV-00648-MV-GBW and 1:12-CR-02229-MV-1) (D.N. Mexico)

Attorneys and Law Firms

Paige Messec, Office of the United States Attorney, District of New Mexico, Albuquerque, NM, for Plaintiff-Appellee

Melissa Ayn Morris, Office of the Federal Public Defender, District of New Mexico, Albuquerque, NM, for Defendant-Appellant

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Carlos F. Lucero, Circuit Judge

Shannon Concho seeks a certificate of appealability ("COA") to appeal the district court's denial of his 28 U.S.C. § 2255 petition. We deny a COA and dismiss the appeal.

I

Concho pled guilty to one count of using, carrying, possessing, and brandishing a firearm during, in relation to, and in furtherance of a "crime of violence" in violation of 18 U.S.C. § 924(c). The underlying *686 offense was assault with a dangerous weapon with intent to do bodily harm under 18 U.S.C. § 113(a)(3). In a Rule 11(c)(1) (C) plea agreement, the parties agreed to an 84-month sentence, and Concho waived his rights to directly appeal or collaterally attack his sentence except on the grounds of ineffective assistance of counsel. At sentencing, the district court imposed the agreed-upon sentence and two years' supervised release.

On June 23, 2016, Concho filed a § 2255 motion arguing that the residual clause of § 924(c)(3)(B) is no longer valid in the wake of Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). He therefore claims that his underlying offense assault with a dangerous weapon no longer qualifies as a crime of violence. The district court rejected his motion and denied a COA. Concho timely appealed.

II

A prisoner may not appeal the denial of habeas relief under § 2255 without a COA. 28 U.S.C. § 2253(c)(1)(B). We will issue a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." § 2253(c)(2). This standard requires Concho to show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotation omitted).

Concho is correct that the residual clause of § 924(c)(3)(B) is unconstitutionally vague. See United States v. Salas, 889 F.3d 681, 684 (10th Cir. 2018). But Concho's conviction for assault with a dangerous weapon nevertheless qualifies as a crime of violence under § 924(c)'s elements clause, which remains good law. That provision defines as a crime of violence any felony offense that "has as an element the use, attempted use, or threatened use of physical force against another." § 924(c)(3)(A).

"To determine whether a prior conviction qualifies as a crime of violence, we apply the categorical approach if the criminal statute under which the defendant was charged contains only one set of elements." United States v. Ontiveros, 875 F.3d 533, 535 (10th Cir. 2017). As we have noted, "[t]he elements differentiating assault with a dangerous weapon from simple assault are the use of a deadly weapon and the intent to commit bodily harm." United States v. Bruce, 458 F.3d 1157, 1164 n.4 (10th Cir. 2006) (quotation omitted). And as the Supreme Court has explained, "physical force is simply force exerted by and through concrete bodies, as opposed to intellectual force or emotional force." United States v. Castleman, ___ U.S. ___, 134 S.Ct. 1405, 1414, 188 L.Ed.2d 426 (2014) (quotations omitted). We therefore reject Concho's argument that assault with a dangerous weapon cannot qualify as a crime of violence under the elements clause because it can be committed without direct physical contact. See Brundage v. United States, 365 F.2d 616, 619 (10th Cir. 1966) (noting that assault with a dangerous weapon must be "committed knowingly, that is with knowledge as to what the defendant was doing and with the desire or wish to bring about a serious bodily injury to the person of another"); see also Ontiveros, 875 F.3d at 538 (rejecting a similar argument in light of Castleman).

III

For the foregoing reasons, we DENY a COA and DISMISS the appeal.

All Citations

724 Fed.Appx. 685 (Mem)