United States v. Bowen

936 F.3d 1091

UNITED STATES of America, Plaintiff - Appellee,

v.Aaron BOWEN, Defendant - Appellant.

No. 17-1011

United States Court of Appeals, Tenth Circuit.

FILED September 3, 2019

Meredith B. Esser, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, and Josh Lee, Assistant Federal Public Defender, with her on the briefs), Office of the Federal Public Defender for the District of Colorado, Denver, Colorado, appearing for Appellant.

J. Bishop Grewell, Assistant United States Attorney (Robert C. Troyer, Acting United States Attorney, with him on the brief), Office of the United States Attorney for the District of Colorado, Denver, Colorado, appearing for Appellee.

Before BRISCOE, KELLY, and McHUGH, Circuit Judges.

BRISCOE, Circuit Judge.

Aaron Bowen appeals the district court’s dismissal of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Bowen challenges his conviction for brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), which rested on the trial court’s instruction that witness retaliation was a crime of violence under 18 U.S.C. § 924(c)(3). Given the narrowing of issues by the parties and developments in the law while this appeal was pending, resolution of this case requires us to answer certain questions and leave others for another day. In short, we hold that United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), in which the Supreme Court held that 18 U.S.C. § 924(c)(3)(B) is void for vagueness, created a new substantive rule that is retroactively applicable on collateral review, and we conclude that Bowen’s convictions for witness retaliation do not qualify as crimes of violence under 18 U.S.C. § 924(c)(3)(A). Therefore, Bowen is actually innocent of 18 U.S.C. § 924(c)(1). The parties have agreed in this case that, if Bowen is actually innocent, his § 2255 motion is timely. Because Bowen is entitled to relief under § 2255, we REVERSE the district court’s dismissal of Bowen’s § 2255 motion and REMAND with instructions to VACATE his § 924(c)(1) conviction.¹

I

In 2007, a jury convicted Bowen of: (1) aiding and abetting the retaliation against a witness, in violation of 18 U.S.C. § 1513(b)(2) ; (2) conspiracy to retaliate against a witness, in violation of 18 U.S.C. §§ 371 and 1513(e) (collectively, the "witness retaliation convictions"); and (3) possession and brandishing of a firearm in furtherance of a federal crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (the "brandishing conviction"). The district court sentenced Bowen to 161 months in prison and a five-year term of supervised release. This sentence included an 84-month sentence for Bowen’s brandishing conviction, to be served consecutively to his witness retaliation conviction sentences.

Bowen’s brandishing conviction was imposed pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), which provides, in relevant part, that "any person who, during and in relation to any crime of violence ..., uses or carries a firearm," or who possesses a firearm in furtherance of the crime of violence, shall, "if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years" to run consecutively to the term of imprisonment for the underlying crime of violence. 18 U.S.C. § 924(c)(1)(A)(ii) (emphasis added). Section 924(c)(3) defines "crime of violence" as:

[A]n offense that is a felony and—

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) 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.

18 U.S.C. § 924(c)(3). Subsection (A) is referred to as the "elements clause," and subsection (B) is referred to as the "residual clause." The jury was instructed that both of Bowen’s witness retaliation convictions were crimes of violence.

On June 26, 2015, the United States Supreme Court held in Johnson v. United States that 18 U.S.C. § 924(e)(2)(B)(ii), the Armed Career Criminal Act’s (the "ACCA") residual clause, is void for vagueness. ––– U.S. ––––, 135 S. Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). That clause defined a "violent felony" as a felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. at 2555–56 (emphasis omitted). The Court later made its Johnson ruling retroactive to cases on collateral review. Welch v. United States, ––– U.S. ––––, 136 S. Ct. 1257, 1265, 194 L.Ed.2d 387 (2016).

Within one year of the Court’s decision in Johnson, Bowen filed this § 2255 motion challenging his brandishing conviction. Bowen argued that although Johnson expressly applied to the ACCA’s residual clause, it also invalidated § 924(c)(3) ’s residual clause. And, according to Bowen, his witness retaliation convictions could only qualify as crimes of violence under the residual clause, § 924(c)(3)(B), because they do not constitute crimes of violence under the elements clause, § 924(c)(3)(A). Therefore, Bowen argued, Johnson mandates that his brandishing conviction be vacated.

The district court dismissed Bowen’s § 2255 motion. As to Bowen’s conviction for aiding and abetting witness retaliation, the district court concluded that "witness retaliation constitutes a crime of violence under" the elements clause. ROA at 122. The district court "assume[d] without deciding" that Bowen’s conviction for conspiracy to retaliate against a witness did not qualify as a crime of violence under the elements clause, id., but concluded that Bowen’s § 2255 motion was untimely because he was not "assert[ing] a right newly recognized by the Supreme Court in Johnson," id. at 124. On January 13, 2017, the district court entered final judgment, dismissing Bowen’s motion. Id. at 128.

Bowen filed a timely notice of appeal, and we granted a certificate of appealability on the following two issues:

In Johnson v. United States, ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), the Court invalidated part of the Armed Career Criminal Act. Bowen filed a post-conviction motion challenging a similar (but not identical) statute, 18 U.S.C. § 924(c)(3)(B), as unconstitutional under Johnson. Does such a motion "assert[ ]" a violation of "the right ... newly recognized" in Johnson so as to authorize an otherwise barred post-conviction motion under 28 U.S.C § 2255(f)(3) ?

Bowen was convicted under 18 U.S.C. § 924(c) for brandishing a firearm during a crime of violence, predicated on the offense of retaliating against a witness, 18 U.S.C. § 1513. Does Bowen’s § 924(c) conviction violate Johnson in that retaliating against a witness qualifies as a crime of violence only under § 924(c)(3)(B), which is unconstitutional under Johnson?

Dkt. No. 10477354, at 3–4.

After briefing and oral argument, we abated this case pending the Supreme Court’s decision in United States v. Davis. On June 24, 2019, the Supreme Court ruled in Davis that § 924(c)(3)(B), the residual clause, is void for vagueness. 139 S. Ct. at 2336. We thereafter lifted the abatement and ordered supplemental briefing.

II

"On appeal from the denial of a § 2255 motion, ordinarily we review the district court’s findings of fact for clear error and its conclusions of law de novo." United States v. Snyder, 871 F.3d 1122, 1125 (10th Cir. 2017) (quoting United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) ). When, as here, "the district court does not hold an evidentiary hearing, but rather denies the motion as a matter of law upon an uncontested trial record, our review is strictly de novo." Barrett, 797 F.3d at 1213 (quoting United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011) ).

Although the district court concluded that Bowen’s § 2255 motion was untimely, the United States now asserts that if "Bowen [is] actually innocent of his § 924(c) offense[,] .... he would overcome the procedural bar of timeliness." Aplee. 28(j) Letter (filed Aug. 27, 2018). Bowen agrees. See Aplt. Supp. Reply Br. at 5 (filed July 26, 2019) ("[I]t appears that the parties agree that, unless the offense of witness retaliation necessarily requires violent physical force, Mr. Bowen is actually innocent, and any time bar is excused.").

Based on the parties’ agreement, we assume without deciding that Bowen’s § 2255 motion is timely if he is actually innocent of § 924(c)(1).² Cf. Day v. McDonough, 547 U.S. 198, 202, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) ("[W]e would count it an abuse of discretion to override [the government’s] deliberate waiver of a limitations defense."). We therefore turn to the question of whether retaliating against a witness qualifies as a crime of violence under § 924(c)(3). As discussed below, we conclude that it does not.

III

We first conclude that the Supreme Court’s ruling in Davis that § 924(c)(3) ’s residual clause is void for vagueness is a new constitutional rule that is retroactive on collateral review. Therefore, Bowen cannot be guilty of violating § 924(c)(1) if his witness retaliation convictions qualify as crimes of violence only under § 924(c)(3) ’s residual clause.

A brief discussion of the relevant cases will help frame our analysis. As noted, Johnson held that the ACCA’s residual clause was unconstitutionally vague. 135 S. Ct. at 2563. And in Welch, the Court ruled that Johnson created a new, substantive rule and was therefore retroactively applicable to cases on collateral review. 136 S. Ct. at 1265 ("By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering ‘the range of conduct or the class of persons that the [Act] punishes.’ " (quoting Schriro v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) )). In Sessions v. Dimaya, the Court held that 18 U.S.C. § 16(b), which has language similar to that of § 924(c)(3)(B), was also...