United States v. Mann

899 F.3d 898

UNITED STATES of America, Plaintiff - Appellant,

v.Clay O’Brien MANN, Defendant - Appellee.

No. 17-2117

United States Court of Appeals, Tenth Circuit.

August 10, 2018

Finnuala K. Tessier, Attorney, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C. (Kenneth A. Blanco, previous Acting Assistant Attorney General, and Trevor N. McFadden, previous Deputy Assistant Attorney General, United States Department of Justice, Washington, D.C., with her on the opening brief; John P. Cronan, Acting Assistant Attorney General, United States Department of Justice, Washington, D.C., with her on the reply brief; James D. Tierney, Acting United States Attorney, Paige Messec, Assistant United States Attorney, and James R. W. Braun, Appellate Chief, District of New Mexico, Albuquerque, New Mexico, with her on the opening and reply briefs), for Plaintiff - Appellant.

Brian A. Pori, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant - Appellee.

Before MATHESON, McKAY, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

This case forces us to decide whether assault resulting in serious bodily injury, 18 U.S.C. § 113(a)(6), is a crime of violence under 18 U.S.C. § 924(c)(3)(A). We hold that it is. Because the district court concluded otherwise, we reverse its judgment and remand for further proceedings consistent with this opinion.

I. BACKGROUND

We have previously described the events precipitating this prosecution. See United States v. Mann , 786 F.3d 1244, 1246–48 (10th Cir. 2015). In brief, Clay O’Brien Mann’s neighbors invited about a dozen friends to join them late one summer evening for a bonfire at their undeveloped property on an Indian reservation. These occasional gatherings irritated Mr. Mann. And when this particular soirée continued into the early morning, Mr. Mann, who had been drinking, hurled a lit artillery-shell firework in the direction of the partygoers. The firework exploded, chaos ensued, and his neighbors and their guests ran away screaming. Three of them unwittingly retreated in the direction of Mr. Mann. He then fired nine shots with a semiautomatic rifle, killing one person and wounding two others. Mr. Mann thereafter patrolled the fence line separating the properties while shouting profanities and threats at other partygoers. He eventually drove away and was apprehended later that morning.

Mr. Mann, who is an enrolled member of the Navajo Nation and Indian Tribe, was indicted on eight counts, and a jury convicted as to five of them. The district court vacated one of those convictions¹ and sentenced Mr. Mann, all told, to just over fourteen years in prison. Mr. Mann appealed, and we affirmed. In the course of affirming, we noted that but for a "careless error" by the government, Mr. Mann might well have received an additional twenty-five years on his sentence for a second § 924(c) conviction. Id. at 1249 n.6 ; see 18 U.S.C. § 924(c)(1)(C)(i) ; Deal v. United States , 508 U.S. 129, 131–37, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). That error lay in Count 8 of the original indictment, which charged Mr. Mann with "knowingly discharg[ing] and carry[ing] a firearm ... during and in relation to a crime of violence, ... namely, assault resulting in serious bodily injury as charged in Count 6 herein," in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Indictment at 3–4, United States v. Mann , No. 11-cr-01528-JAP (D.N.M. June 7, 2011), ECF No. 33. The problem was that the indictment charged "assault resulting in serious bodily injury" in Count 7, not in Count 6. Id. at 3. After realizing the government’s mistake, the district court dismissed Count 8 without prejudice, allowing the government to present a corrected § 924(c)(1)(A)(iii) charge to another grand jury if it desired. Mann , 786 F.3d at 1249 n.6 ; Transcript of Jury Trial at 6–7, Mann , No. 11-cr-01528-JAP, ECF No. 125. The government elected to do so.

By the time we decided Mann , a second grand jury had already re-indicted Mr. Mann on a corrected § 924(c)(1)(A)(iii) charge. That charge went to trial, but the district court declared a mistrial after the jury was unable to reach a unanimous verdict. Before a third trial was set to begin, Mr. Mann moved to dismiss the indictment, arguing that assault resulting in serious bodily injury, 18 U.S.C. § 113(a)(6), is not a crime of violence under § 924(c)(1)(A). The district court agreed. United States v. Mann , No. CR 14-3092 JAP, 2017 WL 3052521 (D.N.M. June 16, 2017). Relying on a line of precedent from this court holding that recklessness is an insufficient mens rea to constitute a crime of violence—and concluding that proof of recklessness would suffice to convict under § 113(a)(6) —the district court held that § 113(a)(6) is not a crime of violence for purposes of § 924(c)(3). Id. at *2–5. The district court dismissed the indictment, and the government timely brought this appeal.

II. DISCUSSION

We generally review the dismissal of an indictment for abuse of discretion. United States v. Pauler , 857 F.3d 1073, 1075 (10th Cir. 2017). But where, as here, the district court’s judgment rests on a question of law, our review is de novo. Id. ; United States v. Serafin , 562 F.3d 1105, 1107 (10th Cir. 2009) ("We review the district court’s legal conclusion that a particular offense constitutes a crime of violence de novo.").

The operative indictment charged Mr. Mann with discharging a firearm during and in relation to a crime of violence, namely, assault resulting in serious bodily injury, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). By enacting § 924(c)(1), Congress imposed various "increased penalties" for use of a firearm in relation to certain crimes. Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1267, 194 L.Ed.2d 387 (2016). As relevant here, § 924(c)(1)(A) provides that "any person who, during and in relation to any crime of violence ... uses or carries a firearm" shall be subject to some additional punishment. On a second or subsequent conviction, a defendant is to be sentenced to a term of imprisonment of not less than twenty-five years. Id. § 924(c)(1)(C)(i).

Crimes of violence are defined at § 924(c)(3). That subsection offers two independent definitions. Under the first definition, a crime of violence means any offense that is a felony and "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Id. § 924(c)(3)(A). Under the second definition, a crime of violence means any offense that is a felony and "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." Id. § 924(c)(3)(B). In this appeal the government argues that assault resulting in serious bodily injury, § 113(a)(6), qualifies under either definition. But in light of our recent holding that § 924(c)(3)(B) is unconstitutionally vague, United States v. Salas , 889 F.3d 681, 683 (10th Cir. 2018), our analysis will begin and end with § 924(c)(3)(A).

In determining whether a § 113(a)(6) offense "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," § 924(c)(3)(A), we apply a "categorical approach." United States v. Pam , 867 F.3d 1191, 1203 (10th Cir. 2017). In other words, we look only to the elements that must be proven to convict a person under § 113(a)(6) in the abstract, "and not to the particular facts underlying" Mr. Mann’s actual conviction for that offense. Id. (internal quotation marks omitted).

To convict Mr. Mann of assault resulting in serious bodily injury, the government needed to prove (1) the defendant assaulted a victim and (2) the victim suffered serious bodily injury. 18 U.S.C. § 113(a)(6) ; see id. § 1153(a) (providing that "[a]ny Indian" who commits "a felony assault under section 113," "within the Indian country, shall be subject to the same laws and penalties as all other persons committing [such offense], within the exclusive jurisdiction of the United States"); United States v. Zunie , 444 F.3d 1230, 1233 (10th Cir. 2006). Every conviction under § 113(a)(6) requires an assault. "To determine if every violation of [ § 113(a)(6) ] is a crime of violence, then, we need only determine whether ... an assault that causes [serious] bodily injury" necessarily involves the use, attempted use, or threatened use of physical force against the person or property of another. See United States v. Kendall , 876 F.3d 1264, 1270 (10th Cir. 2017) (holding that 18 U.S.C. § 111(b) is a crime of violence under U.S.S.G. § 4B1.2 ), cert. denied , ––– U.S. ––––, 138 S.Ct. 1582, 200 L.Ed.2d 768 (2018). As another federal court of appeals recently put it, the "question ... answers itself." See United States v. Verwiebe , 874 F.3d 258, 261 (6th Cir. 2017) ("How would it be possible to suffer serious bodily injury without force capable of producing such injury?"). We reiterate here that "[a]n assault that causes [serious] bodily injury by definition involves the use of physical force." Kendall , 876 F.3d at 1270.

Yet the district court in this case concluded that § 113(a)(6) is not a crime of violence under the categorical approach because it is possible to violate that statute with a mens rea of recklessness. The district court was partially correct: recklessness is indeed sufficient² to support a conviction under § 113(a)(6). Zunie , 444 F.3d at 1235. The district court was incorrect, however, to hold that § 113(a)(6) is therefore not a crime of violence. To see why § 113(a)(6)"has as an element the use, attempted use, or threatened use of physical force against the person or property of another," § 924(c)(3)(A), notwithstanding that it can be violated by defendants with a mens rea of recklessness, we turn to a line of cases beginning with Leocal v. Ashcroft , 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004).

In Leocal , the Supreme Court...