In re Amawi

In re: MOHAMMAD ZAKI AMAWI, Movant.

No. 18-3949

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

July 16, 2019

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 19a0365n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

Before: GUY and NALBANDIAN, Circuit Judges.¹

NALBANDIAN, Circuit Judge. Mohammad Zaki Amawi seeks authorization to file a second or successive habeas petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Amawi argues that the Supreme Court's decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), invalidates his convictions because it found 18 U.S.C. § 16(b) unconstitutionally vague. But because Amawi's convictions qualify as "crimes of violence" under 18 U.S.C. § 16(a), which remains untouched by Dimaya, we deny his motion.

I.

Back in 2008, a jury convicted Amawi for his part in a terrorist conspiracy. The conspiracy was to kill and maim people outside the United States, see 18 U.S.C. § 956(a)(1)—and to provide material support to help terrorists kill Americans. See id. § 2339A. To accomplish this, Amawi distributed information on how to create chemical explosives and suicide-bomb vests. See 18U.S.C. § 842(p)(2)(A). The district court sentenced him to 240 months in prison. Amawi appealed, and we affirmed. United States v. Amawi, 695 F.3d 457, 465 (6th Cir. 2012).

Amawi then filed his first § 2255 motion, raising claims about illegally obtained evidence, failure to disclose evidence, and ineffective assistance of counsel. The district court denied his motion, and Amawi did not appeal. United States v. Amawi, No. 3:06-cr-719, 2014 WL 5795551 (N.D. Ohio Nov. 6, 2014).

Then we decided Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016), where we addressed the constitutionality of the term "crime of violence" as defined in 18 U.S.C. § 16. The § 16 definition has two parts—subsections (a) and (b). Shuti addressed only the latter, known as the residual clause, holding that § 16(b) is unconstitutionally void for vagueness. 828 F.3d at 446-47 (relying on Johnson v. United States, 135 S. Ct. 2551 (2015)). The Supreme Court agreed in Sessions v. Dimaya, confirming that the residual clause definition is unconstitutional. 138 S. Ct. 1204 (2018). But to be sure, both Shuti and Dimaya left § 16(a) untouched. This means that a "crime of violence" is still defined as "an 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. § 16(a) (known as the "elements clause").

These cases opened a new door for Amawi. The jury convicted him under 18 U.S.C. § 842(p)(2)(A), which for Amawi, made it unlawful to distribute his information about explosives and suicide vests if Amawi intended the recipients to use his information to commit "crimes of violence." To define this term, both the superseding indictment and jury instructions relied on the definition in § 16—including references to subsections (a) and (b). So Amawi filed a second habeas petition, arguing that his convictions were now invalid because § 16(b)'s definition is unconstitutional. See 28 U.S.C. §§ 2244(b), 2255(h). Said another way, Amawi argues that we must vacate his § 842 convictions because his underlying crimes are no longer "crimes ofviolence." Permission to proceed is sought on the grounds that he has made a prima facie showing that his second or successive § 2255 motion it is based on Dimaya, which the government agrees established a new and retroactive rule of constitutional law that was previously unavailable.

But for Amawi to make that showing, his relevant convictions must fall exclusively under § 16(b), which is now unconstitutional, rather than § 16(a), which remains valid. The jury found that Amawi distributed his information, in violation of § 842, to commit two crimes. The first was under 18 U.S.C. § 1114, killing or attempting to kill a United States employee engaged in the performance of that person's official duties. And the second, under 18 U.S.C. § 2332, is killing a United States national outside the United States. Both crimes provide that the killing can occur by murder or manslaughter, which includes both voluntary and involuntary manslaughter.

Amawi argues that § 1114 and § 2332 cannot be "crimes of violence" under § 16(a) because they both include involuntary manslaughter. And at least one circuit has concluded that involuntary manslaughter is not a crime of violence. See United States v. Benally, 843 F.3d 350, 351 (9th Cir. 2016). The government, however, disagrees—arguing that Amawi's crimes remain "crimes of violence" under § 16(a).

II.

To determine whether a conviction qualifies as a "crime of violence," we employ the categorical approach. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). This often takes the form of a three-step inquiry. See, e.g., Gutierrez v. Sessions, 887 F.3d 770, 774 (6th Cir. 2018); United States v. Ritchey, 840 F.3d 310, 315-16 (6th Cir. 2016). Step one looks at "the statutory definition of the . . . offense rather than the underlying facts of the conviction," and asks whether the "predicate conviction . . . involves violent physical force." Perez v. United States, 885 F.3d 984, 987 (6th Cir. 2018), cert. denied, 139 S. Ct. 1259 (2019). At this step, we cannot analyzeAmawi's crimes to determine whether they were violent. Instead, "we must engage in a hypothetical exercise to determine whether the crime[s'] elements could be committed in a non-violent fashion." Lowe v. United States, 920 F.3d 414, 420 (6th Cir. 2019) (Thapar, J., concurring). We are thus concerned with finding "the least forceful conduct generally criminalized under the statute." Perez, 885 F.3d at 987.

For both of Amawi's underlying crimes, the hypothetical "least forceful" conduct is involuntary manslaughter. See 18 U.S.C. § 1114(2) (referencing 18 U.S.C. § 1112, which includes voluntary and involuntary manslaughter); id. § 2332(a)(2)-(3) (same). So the question, under step one, is whether involuntary manslaughter involves the use of violent physical force.

This question is where the Ninth Circuit started and finished in Benally. Looking at 18 U.S.C. § 1112, the Ninth Circuit explained that involuntary manslaughter requires a mental state of only gross negligence. Said differently, involuntary manslaughter includes "accidental conduct." Benally, 843 F.3d at 353-54. And if an individual accidently uses force against another person, according to the Ninth Circuit, the accidental nature of the force means that the individual did not intend to use violent physical force. See id. For example, we would think of someone using physical force when they push someone—but we would not think of someone using physical force when they accidently stumble and fall into someone. Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). Following this reasoning, any statute that includes involuntary manslaughter is not categorically a crime of violence.

Amawi asks us to adopt Benally's reasoning. But even if we were inclined to do so (a question we need not and do not answer here), it would not end our analysis. The Ninth Circuit did not address steps two and three of the categorical approach, often called "the modified categorical approach." Id. at 352. In step two, we ask whether the relevant statute is divisible. Astatute is divisible if it specifies different methods for violating the same statute—resulting in the creation of distinct crimes. Guiterrez, 887 F.3d at 774; United States v. Mitchell, 743 F.3d 1054, 1065 (6th Cir. 2014). If so, we move to step three, which tries to figure out which alternative crime the defendant committed (a violent one or a non-violent one). To accomplish this, we can look at certain trial court documents, known as Shepard documents. Descamps v. United States, 570 U.S. 254, 257 (2013). If the documents establish that the defendant's conduct fell under the method that qualifies as a crime of violence, it does not matter that other hypothetical conduct could also be considered non-violent conduct under the statute.

In sum, step two asks whether there are distinct crimes under the same statute: one that would qualify as a crime of violence under § 16(a)—and another that would not. And step three attempts to figure out which alternative crime the defendant was charged with and convicted. For Amawi, regardless of whether involuntary manslaughter is categorically a crime of violence, the relevant statutes here are divisible—and the Shepard documents show that Amawi's conduct falls under first-degree murder (undeniably a crime of violence), rather than involuntary manslaughter.

III.

For step two, we start with the language of the statute, looking for the elements required to violate the statute. Gutierrez, 887 F.3d at 774-75 (relying on Mathis, 136 S. Ct. at 2248-49). If the statute contains a single set of elements that define a single crime, the statute is indivisible, and our inquiry ends. Id. This is true even when a statute lists different factual scenarios to commit the same crime. For example, a statute could make it unlawful to assault someone with a "deadly weapon." See Mathis, 136 S. Ct. at 2249. And then the statute could "further provide[ ] that the use of a knife, gun, bat, or similar weapon would all qualify" as a "deadly weapon." Id. This listdoes not create distinct crimes, but instead, "spells out various factual ways of committing [the same] offense." Id.

But if the statute includes a list of alternative elements (rather than facts) that define several crimes, the statute is divisible, and we move to step three. See id. at 775. For example, we recently recognized that when a statute contains enumerated subsections, each of which criminalizes different conduct, the statute is divisible. See United States v. Burris, 912 F.3d 386, 402 (6th Cir. 2019) (en banc) (analyzing Ohio Rev. Code § 2903.11(A)). In Burris, we explained how Ohio's felonious assault statute is divided into...