19 F.4th 863
6th Cir.2021Background
- In 1996 Harris and a co-defendant attempted to rob two soldiers at Fort Campbell; the co-defendant’s gun discharged, killing one soldier.
- Harris pleaded guilty to aiding and abetting second-degree murder (18 U.S.C. § 1111), aiding and abetting attempted robbery (18 U.S.C. § 2111), and aiding and abetting using/carrying a firearm during a crime of violence (18 U.S.C. § 924(c)).
- The district court imposed concurrent terms of 420 months and 180 months for murder and attempted robbery, plus a consecutive 60 months under § 924(c) (total 480 months); convictions were affirmed on direct appeal.
- Harris later sought relief via a second or successive § 2255 after Davis invalidated § 924(c)(3)(B)’s residual clause, arguing the record is silent and the § 924(c) sentence may have rested on that now-unconstitutional clause.
- The district court denied relief but granted a certificate of appealability on whether the sentencing record’s silence requires vacatur and whether Harris’s predicate offenses qualify as crimes of violence under § 924(c)(3)(A).
- The Sixth Circuit held that § 2111 (robbery/attempted robbery) necessarily requires the use, attempted use, or threatened use of physical force and thus qualifies under the elements clause, so Harris suffered no prejudice and the § 924(c) sentence stands.
Issues
| Issue | Plaintiff's Argument (Harris) | Defendant's Argument (United States) | Held |
|---|---|---|---|
| Whether the § 924(c) sentence must be vacated when the record is silent and § 924(c)(3)(B) was later invalidated | Silence in the record makes it possible or likely the district court relied on the unconstitutional residual clause, requiring vacatur | Even if the sentencing record is silent, the court can affirm if at least one predicate offense qualified under the valid elements clause, so no prejudice shown | Denied relief: silence alone insufficient; must show prejudice, i.e., that no predicate qualified under the elements clause |
| Whether aiding and abetting attempted robbery (18 U.S.C. § 2111) is a "crime of violence" under § 924(c)(3)(A) (elements clause) | § 2111 is broader than generic robbery and includes attempted robbery and intimidation that might not involve immediate danger, so it may not categorically require force | § 2111’s elements require a taking "by force and violence, or by intimidation," and "intimidation" involves threatened physical force; even attempted takings require force or intimidation, so it fits the elements clause | Held: § 2111 necessarily involves use/attempted use/threatened use of physical force and is a crime of violence under § 924(c)(3)(A) |
| Whether aiding and abetting second-degree murder is necessarily a crime of violence under the elements clause | Second-degree murder might be committed with simple recklessness (per Borden), so it may not categorically require force | Not necessary to decide because another predicate (§ 2111) qualifies under the elements clause; only one qualifying predicate is required | Court did not decide categorically for second-degree murder; relied on § 2111 to affirm |
| Whether Davis retroactivity entitles Harris to § 2255 collateral relief | Davis invalidated the residual clause and is retroactive; thus sentences relying on it may be vacated | Even if Davis applies, petitioner must show prejudice—i.e., that no valid elements-clause predicate supported the § 924(c) conviction | Held: Davis applies retroactively, but Harris failed to show prejudice because § 2111 satisfies the elements clause |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (held § 924(c)(3)(B) residual clause unconstitutionally vague)
- Johnson v. United States, 576 U.S. 591 (2015) (invalidated ACCA residual clause under Due Process)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (invalidated a residual clause in § 16(b) as unconstitutionally vague)
- Taylor v. United States, 495 U.S. 575 (1990) (adopted categorical approach for determining predicate offenses)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (government must show the least conduct criminalized requires the element in question)
- Borden v. United States, 141 S. Ct. 1817 (2021) (offenses committed with mere recklessness may not qualify as violent felonies under elements clauses)
- United States v. Burris, 912 F.3d 386 (6th Cir. 2019) (explained application of the categorical/elemental approach in elements-clause context)
- Williams v. United States, 927 F.3d 427 (6th Cir. 2019) (articulated factors for assessing whether a silent record implies reliance on a residual clause)
- In re Franklin, 950 F.3d 909 (6th Cir. 2020) (held Davis applies retroactively and analyzed elements-clause issues)
- United States v. McBride, 826 F.3d 293 (6th Cir. 2016) (intimidation involves threatened physical force and can satisfy elements-clause requirements)
- United States v. Camp, 903 F.3d 594 (6th Cir. 2018) (analyzed robbery and categorical comparisons under related doctrines)