United States v. Smith

957 F.3d 590

UNITED STATES of America, Plaintiff - Appellee

v.Derrick Lenard SMITH, Defendant - Appellant

No. 18-10476

United States Court of Appeals, Fifth Circuit.

FILED April 30, 2020

Gail A. Hayworth, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, for Plaintiff-Appellee.

James Matthew Wright, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, for Defendant-Appellant.

Before STEWART, DENNIS, and HAYNES, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The subject of this appeal is Defendant-Appellant Derrick Lenard Smith’s crime of violence (COV) convictions under Counts Three, Five, Seven, and Nine, in violation of 18 U.S.C. § 924(c). Smith was convicted on four counts of using and carrying a firearm during a bank robbery and a subsequent shootout with law enforcement.¹ The district court sentenced Smith to a sentence of 1,320 months, and we affirmed. See United States v. Smith , 296 F.3d 344, 349 (5th Cir. 2002).

Fourteen years into his sentence, Smith filed a 28 U.S.C. § 2255 motion seeking vacatur of this sentence in light of Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), which rendered a residual clause similar to the one found in § 924(c)(3)(B) unconstitutionally vague. Johnson , 135 S. Ct. at 2257, 2263. As a result, Smith contended that his § 924(c) convictions were no longer valid. The district court denied the § 2255 motion, relying on our precedent (at the time) that foreclosed vagueness challenges to § 924(c)(3)(B).² The district court also concluded that § 924(c)(3)(B) was not unconstitutionally vague. Smith appealed, and we granted a certificate of appealability.

Although the Supreme Court abrogated the precedent that the district court relied on in denying this § 2255 motion, we nonetheless AFFIRM the district court’s ruling on alternative grounds.

I.

In an appeal from the denial of a § 2255 motion, we apply de novo review to legal questions such as the characterization of an offense as a COV. See United States v. Reece , 938 F.3d 630, 633 (5th Cir. 2019). We nevertheless have the discretion to affirm the district court’s § 2255 ruling on alternative grounds. See Sealed Appellee v. Sealed Appellant , 900 F.3d 663, 666 (5th Cir. 2018).

II.

Smith maintains that the district court’s conclusion for denying his § 2255 motion is no longer valid because United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), rendered 18 U.S.C. § 924(c)(3) ’s residual clause unconstitutional. We agree.

As an initial point, 18 U.S.C. § 924(c) penalizes "any person who, during and in relation to any [COV] ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." Section 924(c) is part of a larger statute imposing sentencing enhancements, provided the defendant commits a predicate COV. "The statute contains two clauses defining COV": a felony offense that (1) " ‘has as an element the use, attempted use, or threatened use of physical force against the person or property of another’ " (the elements clause), or (2) "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" (the residual clause). Reece , 938 F.3d at 632 (quoting 18 U.S.C. § 924(c)(3)(A), (B) ).

A. The Residual Clause

The Supreme Court recently made clear that the § 924(c)(3)(B) residual clause was unconstitutionally vague.³ United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019). Because Davis invalidated the residual clause, Smith may "avail himself of [ Davis ’s] protection." Reece , 938 F.3d at 635 (holding that the rule announced in Davis applies retroactively).

Here, considering the merits of Smith’s petition, he is correct that, in light of Davis , the district court relied on case law that has since been overruled by the Supreme Court. However, Smith’s firearms convictions can still be sustained if the predicate offenses—bank robbery (in violation of 18 U.S.C. § 2113 ) and attempted murder (in violation of 18 U.S.C. § 1114 )—can be defined as a COV under the elements clause contained in § 924(c)(3)(A).

B. The Elements Clause

The government’s position is that Smith’s bank robbery and attempted murder predicate convictions qualify as COVs under the elements clause because both require "the use, threatened use, [or] attempted use of physical force." We agree with the Government.⁴

To qualify as a COV, the predicate offense must have "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 phrase "physical force" in § 924(e)(2)(B)(i) ’s identically worded force clause "means violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States (Johnson I) , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

In deciding whether a crime falls within the ambit of § 924(c)(3)(A), we are guided by the categorial approach. See United States v. Buck , 847 F.3d 267, 274 (5th Cir. 2017). This approach provides that we only analyze the elements of Smith’s predicate offenses,⁵ rather than the facts, and compare those elements to "the elements of the ‘generic’ crime—i.e. , the offense as commonly understood." Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). If the elements of Smith’s predicate offenses necessarily involve "the use, attempted use, or threatened use of physical force against the person or property of another," then his predicate offenses may be treated as COVs for sentence-enhancement purposes.

This categorical approach is employed "when a statute sets out a single (or ‘indivisible’) set of elements to define a single crime." Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). If the statute at issue is divisible—that is, if it "lists multiple, alternative elements, and so effectively creates ‘several different ... crimes’ "—"we [employ the modified approach which we first] determine which crime formed the basis of the defendant’s conviction." Descamps , 570 U.S. at 263–64, 133 S.Ct. 2276 (quoting Nijhawan v. Holder , 557 U.S. 29, 41 (2009)). Once the charged crime is ascertained, we then do a categorical approach analysis, i.e. , compare the generic crime’s elements to those disjunctive elements that formed the basis of the conviction. See id. at 260-63, 133 S.Ct. 2276 ("[T]he modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute.").

1. Aggravated Bank Robbery

We first look to Smith’s predicate aggravated bank robbery conviction in violation of 18 U.S.C. § 2113(a) and (d). As we previously stated, " § 2113(a) constitutes a crime of violence" under Section 924(c)(3)(A) ’s elements clause. United States v. Pervis , 937 F.3d 546, 553 (5th Cir. 2019) ; see also United States v. Cheers , 760 F. App'x 272, 273–74 (5th Cir. 2019) (per curiam) (same with regard to a predicate offense of aiding and abetting an armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d) ). In turn, because Smith’s federal bank robbery offense is a COV under the elements clause, his firearm convictions survive Smith’s habeas challenge. See Reece , 938 F.3d at 637 ("Federal bank robbery constitutes a COV" under § 924(c)(3)(A) " ‘because the least culpable conduct under that statute requires, at a minimum, an implicit threat to use force.’ ") (quoting United States v. Cadena , 728 F. App'x 381, 382 (5th Cir. 2018) (per curiam)).

2. Attempted Murder

Turning to Smith’s attempted murder conviction in violation of 18 U.S.C. § 1114(3), Smith contends the elements clause cannot be applied retroactively. We disagree. Cf. Reece , 938 F.3d at 635–37 (deciding, in the first instance, whether the predicate conspiracy offense was a COV under the elements clause). Smith fails to otherwise refute the assertion that attempted murder under § 1114 is a COV.

The Government maintains this conviction should be considered as a COV because this offense trails the offense of federal murder, 18 U.S.C. § 1111, which has an element the use of physical force. In other words, because attempted murder is as much a crime of violence as murder itself. We agree.

We have not previously characterized attempted murder as a COV under § 924(c)(3) ’s elements clause. We therefore take this opportunity to do so.

Modified Approach. First, we note that it is appropriate to employ the modified approach here because § 1114 is a divisible statute. By its plain language, this statute makes it a crime to "kill[ ] or attempt[ ] to kill any officer or employee of the United States ...," which may be accomplished through several enumerated offenses, each of which provides separate elements and punishments. See 18 U.S.C. 1114(1) – (3) (containing the enumerated offenses for murder, manslaughter, or attempted murder); accord Descamps , 570 U.S. at 263, 133 S.Ct. 2276.

Having decided § 1114 is divisible, we now ascertain which portions of the statute served as a basis of conviction. See Descamps , 570 U.S. at 257, 133 S.Ct. 2276. In doing so, the Supreme Court permits us to consider the "statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Shepard v. United States , 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Upon review of Smith’s Superseding Indictment, it is fairly straightforward that the precise basis of Smith’s conviction is attempted murder because he was charged with and convicted of three counts (Four, Six, Eight) of attempting to kill three individuals who were assisting federal law officers. Consequently, § 1114(3)...