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Tenth Circuit Holds Davis Retroactive, Retaliation Against a Witness Not Crime of Violence Under § 924(c)

by Dale Chappell

In a lengthy opinion addressing two issues of first impression in the circuit, the U.S. Court of Appeals for the Tenth Circuit held that United States v. Davis, 139 S. Ct. 2319 (2019) (holding 18 U.S.C. § 924(c)(3)(B) void for vagueness), created a new substantive right that’s retroactive on collateral review and that retaliation against a witness by damaging property is not a crime of violence that can support a conviction for use of a firearm under 18 U.S.C. § 924(c). The Court remanded the case with instructions to the district court to vacate the § 924(c) conviction, ruling that Davis rendered the prisoner actually innocent of that offense.

The Court announced some important points for those filing for relief under 28 U.S.C. § 2255 in light of the Supreme Court’s third residual clause case in almost as many years in Davis. The case came before the Court after the district court denied a § 2255 motion filed by Aaron Bowen, claiming that his § 924(c) conviction for retaliation against a witness couldn’t stand after the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) is unconstitutional. His motion was filed within a year of Johnson, and he had argued that § 924(c)’s residual clause was similar enough to the one invalidated in the ACCA as to similarly render it unconstitutional as well.

But district court didn’t agree. Not only did the court rule that Johnson didn’t apply to § 924(c)’s residual clause, making Bowen’s motion untimely filed, it also ruled that retaliation against a witness by damaging property was a crime of violence under the elements clause of § 924(c).

The district court denied Bowen’s motion and declined to issue a certificate of appealability (“COA”) on the question, which had never been addressed in the Tenth Circuit.

As a refresher, § 924(c), like the ACCA, has both an elements clause and a residual clause. The major difference is that § 924(c)’s clauses each include “force against the person or property of another,” whereas the ACCA counts only force against a person but not property. This distinction mattered, the district court said.

Retaliation against a witness under 18 U.S.C. § 1513 has two parts: (1) killing or attempting to kill a witness or (b) causing bodily injury or damaging a witness’s property — and they are both separate crimes. The second crime was at issue in Bowen’s case, not the first. Here’s the language of part (b): “Whoever knowingly engages in any conduct and thereby causes another person, or threatens to do so, with intent to retaliate against any person.” Without referring to any precedent (because there wasn’t any), the district court said, “Mr. Bowen’s conviction for witness retaliation readily falls within the elements clause of § 924(c)(3)(A).”

Up to this point, Davis had not yet been decided, and Bowen appealed the district court’s denial, arguing that Johnson invalidated the residual clause of § 924(c) and that his retaliation conviction could not fall under the elements clause but only the residual clause. The Tenth Circuit granted a COA on both issues, but then the Supreme Court agreed to hear Davis.

The Court then abated (or stayed) Bowen’s appeal awaiting the outcome of Davis. Once the Supreme Court held in Davis that the residual clause of § 924(c) is also unconstitutional, the Tenth Circuit lifted the abatement and took up Bowen’s appeal.

On appeal, the Government conceded that if Bowen was “actually innocent” of the § 924(c) conviction then his motion would be timely, regardless of whether Johnson reopened the one-year clock to file his motion. But this would depend on whether Davis declared the residual clause of § 924(c) unconstitutional, of course. In effect, the Government’s concession was an affirmative waiver of any time limits, and the district court then would have to ignore any time issues. The Tenth Circuit noted that neither it nor the Supreme Court had ever held that actual innocence based on a change in law (instead of new evidence) could excuse a late-filed § 2255 motion, but it accepted the Government’s waiver, noting that it, too, was not allowed to reach any time limit issue because of the waiver.

Thus, the crucial question was whether Bowen’s § 1513(b) conviction necessarily fell under the now-unconstitutional residual clause, making him actually innocent of that crime. The Court said it did.

The Tenth Circuit’s analysis focused on whether damage to property under § 1513(b) always required force enough to fall under the elements clause. In Davis, the Supreme Court rejected the “case-specific” approach urged by the Government and continued with the “categorical” approach to assessing predicate convictions for § 924(c). Under this approach, a court may look only to the language of the statute to determine which crime the defendant was convicted of committing. The court cannot look at what the defendant actually did (that would be the case-specific approach).

“Force,” to qualify under the elements clause, has been defined by the Supreme Court as “force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133 (2010) (“Johnson 2010”). Since then, the Supreme Court has created exceptions to this definition to include force needed to overcome someone’s resistance to count robbery as a crime of violence, Stokeling v. United States, 139 S. Ct. 544 (2019), and indirect force, such as pulling a trigger, to count a misdemeanor domestic violence conviction to bar possessing a firearm. United States v. Castleman, 572 U.S. 157 (2014).

To date, the Supreme Court has not defined “physical force” for purposes of § 924(c), the Tenth Circuit noted, but the “mere fact” that someone damages property does not mean that an act “inherently” requires “violent force” under § 924(c), the Court said. Recognizing this conflicted with other courts that have held the opposite (usually citing Castleman), the Court stood by its detailed analysis underlying its conclusion, saying that those other courts are wrong.

While it’s true that § 1513(b) also has an element of “bodily injury,” the Court explained that under Moncrieffe v. Holder, 569 U.S. 184 (2013) (and Johnson 2010), a court must look to the “least of the acts criminalized” under the categorical approach, which in the case of § 1513(b) is damage to property and not bodily injury, because the subsection of the statute is not divisible (i.e., doesn’t encompass two different crimes) to allow the court to look at the charging documents to determine whether Bowen was charged with bodily injury or property damage. As such, the Court had to assume it was property damage.

The next obstacle Bowen had to overcome was the Tenth Circuit’s rule that a § 2255 movant must show “that the sentencing court, more likely than not, relied on the residual clause” in imposing the § 924(c) conviction. United States v. Driscoll, 892 F.3d 1127 (2018). Here, the record was silent as to what clause the sentencing court relied on, and there was no precedent on what clause § 1513(b) fell under at the time of Bowen’s conviction in 2007. Instead, the record showed that the trial court instructed the jury that § 1513(b) was automatically a crime of violence for purposes of § 924(c), because it didn’t matter what clause it fell under. However, over a decade later, the Supreme Court would declare the residual clause unconstitutional. But at the time of his direct appeal, it didn’t matter which clause the sentencing court relied upon, so the courts were never required to address the issue.

Bowen could now show that his § 924(c) conviction “necessarily” fell under the residual clause, the Court said, because the sentencing court was required at the time to apply the categorical approach, which showed that the court “must have relied on the residual clause,” the Court concluded.

Finding Bowen’s § 924(c) conviction was based upon the now-unconstitutional residual clause, the Court held that he was therefore actually innocent of the offense. As per the Government’s concession, this meant his motion was timely filed.

Accordingly, the Court reversed the denial of his motion and remanded with instructions to vacate Bowen’s § 924(c) conviction. See: United States v. Bowen, 936 F.3d 1091 (10th Cir. 2019).

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