Gray v. United States, 980 F.3d 264

Durome Gray pleaded guilty in 2012 to assaulting a federal officer (18 U.S.C. §§ 111(a)(1) and 111(b)) and to using a firearm during that assault (18 U.S.C. § 924(c)).
Gray filed a 28 U.S.C. § 2255 motion arguing his § 924(c) conviction lacked a valid predicate because § 111 is not a “crime of violence” under § 924(c)(3)(A).
The district court denied relief and a certificate of appealability; Gray sought a certificate from the Second Circuit.
The court applied the categorical (and where necessary modified categorical) approach to statutory elements, treating § 111 as divisible into separate offenses.
The court held § 111(b) (which requires either use of a deadly/dangerous weapon or infliction of bodily injury) necessarily involves the “use… of physical force” as defined by Supreme Court precedent.
Because § 111(b) is a categorical crime of violence, Gray failed to make a substantial showing of a constitutional violation, and the court denied a certificate of appealability.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 111(b) is a categorical “crime of violence” under 18 U.S.C. § 924(c)(3)(A)	Gray: § 111(b) can encompass conduct that does not involve the required “use… of physical force” (e.g., minor contact or indirect causation)	Govt: § 111(b)’s elements — use of a deadly/dangerous weapon or infliction of bodily injury — necessarily involve violent physical force	Held: Yes. § 111(b) is a categorical crime of violence because both alternatives entail physical force
Whether § 111 is divisible and thus the modified categorical approach applies	Gray implicitly disputed need to parse elements	Govt: § 111 is divisible into distinct offenses; modified categorical approach is appropriate	Held: § 111 is divisible; court applied the modified categorical approach

Leocal v. Ashcroft, 543 U.S. 1 (use means the active employment of physical force)
Johnson v. United States, 559 U.S. 133 (physical force means violent force capable of causing pain or injury)
Mathis v. United States, 136 S. Ct. 2243 (categorical and modified categorical approach framework)
United States v. Taylor, 848 F.3d 476 (1st Cir.) (held § 111 divisible and § 111(b) involves violent force)
United States v. Bullock, 970 F.3d 210 (3d Cir.) (held § 111(b) is a crime of violence)
United States v. Davis, 139 S. Ct. 2319 (struck down § 924(c)(3)(B) as unconstitutionally vague)
United States v. Jackson, 310 F.3d 554 (7th Cir.) (interpreted “inflict” to require direct physical application of force)
United States v. Zabawa, 719 F.3d 555 (6th Cir.) (held “inflict” requires direct physical causation)