913 F.3d 1252
10th Cir.2019Background
- In 2013 Troy Bong was convicted under 18 U.S.C. § 922(g) for being a felon in possession of a firearm and sentenced to 293 months after the PSR classified him as an Armed Career Criminal (ACCA) based on multiple prior Kansas robbery and aggravated robbery convictions.
- The traffic stop and arrest occurred after a taillight/turn-signal violation; officers engaged Bong, a struggle ensued, and a firearm was recovered near him; Bong maintained another person dropped the gun.
- Bong pursued direct appeal (affirmed), then filed a § 2255 motion arguing (inter alia) that his prior Kansas robbery/aggravated robbery convictions do not qualify as ACCA "violent felonies" post-Johnson and that counsel was ineffective for failing to challenge ACCA status and to investigate evidence (including allegedly existing patrol-car video recordings).
- The district court denied the § 2255 motion, concluding Kansas robbery/aggravated robbery satisfied the ACCA elements clause; it granted a COA on ACCA classification and related ineffective-assistance claims but rejected other claims as untimely or waived.
- The Tenth Circuit held Kansas robbery and Kansas aggravated robbery (as defined at the time) are not categorically ACCA violent felonies because Kansas robbery can be satisfied by minimal force (e.g., purse-snatching) and aggravated robbery can be satisfied merely by being "armed" without use or threatened use of violent force.
- The court reversed and remanded: (1) vacating the district court’s ACCA determination and directing the district court to decide whether Bong has other qualifying predicates; (2) affirming in part and reversing in part ineffective-assistance rulings (remanding regarding counsel’s failure to request or investigate alleged video evidence); and (3) reversing dismissal of Bong’s Brady/Giglio claim about suppressed videos and remanding for consideration.
Issues
| Issue | Plaintiff's Argument (Bong) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Kansas robbery is an ACCA "violent felony" under the elements clause | Kansas robbery lacks the violent-force element required by Johnson because it can be committed by minimal force (e.g., purse-snatching) | Kansas case law (Aldershof, etc.) shows robbery requires violence contemporaneous with taking and thus meets ACCA’s "physical force" definition | Kansas robbery does not categorically satisfy ACCA elements clause; conviction cannot be an ACCA predicate |
| Whether Kansas aggravated robbery is an ACCA "violent felony" (because robber is "armed") | Aggravated robbery still fails because "armed" can mean mere possession/concealment of a weapon without use or threat of violent force | Being armed makes the offense more dangerous and should qualify as violent | Aggravated robbery is not categorically a violent felony where "armed" can be satisfied by mere possession; does not automatically meet ACCA elements clause |
| Whether trial counsel was ineffective for failing to investigate (witnesses, facts, and video evidence) | Counsel performed deficient investigation; had counsel pursued witnesses and obtained video, outcome might differ; counsel should have sought patrol-car videos | Much of Bong’s new factual material is speculative or immaterial and would not have changed outcome | Mostly rejected, but reversed as to counsel’s failure to request/obtain alleged AXON patrol-car videos; remanded for further proceedings on that discrete claim |
| Whether the prosecution suppressed video evidence (Brady/Giglio) | City records indicate two AXON videos exist; their suppression (or non-disclosure) and any false testimony about their existence deprived Bong of favorable, material evidence | Government contests existence/importance of such videos and has contrary affidavits (not in record on appeal) | District court erred to dismiss as untimely; Brady/Giglio claim reversed and remanded for the district court to resolve the factual record and materiality/timeliness issues |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (defining "physical force" as "violent force" capable of causing pain or injury)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (holding ACCA residual clause void for vagueness)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (explaining the categorical approach to predicate-offense analysis)
- Harris v. United States, 844 F.3d 1260 (10th Cir. 2017) (two-step test for whether a robbery statute satisfies ACCA force element)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing elements from means in categorical analysis)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) ("use" requires active employment, not negligence)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (focus on the least conduct criminalized by the statute; "realistic probability" inquiry)
- United States v. Parnell, 818 F.3d 974 (9th Cir. 2016) (holding being "armed" does not categorically satisfy ACCA force clause)
- United States v. Wells, 873 F.3d 1241 (10th Cir. 2017) (standard for Brady claim review)