957 F.3d 590
5th Cir.2020Background
- Derrick Lenard Smith was convicted on four counts under 18 U.S.C. § 924(c) for using/carrying a firearm during a bank robbery and related shootout; he received a 1,320‑month sentence, previously affirmed on direct appeal.
- Fourteen years into imprisonment Smith filed a § 2255 motion challenging his § 924(c) convictions based on Johnson (2015) and subsequently Davis (2019), attacking the statute’s residual clause (§ 924(c)(3)(B)) as unconstitutionally vague.
- The district court denied § 2255 relying on then‑controlling Fifth Circuit precedent; Smith appealed and a COA was granted.
- The Fifth Circuit agreed Davis invalidated the residual clause but reviewed whether Smith’s predicate offenses nonetheless qualify as crimes of violence (COVs) under the elements clause (§ 924(c)(3)(A)).
- Applying the categorical approach (and the modified approach for divisible statutes), the court held aggravated bank robbery (18 U.S.C. § 2113) and attempted murder under § 1114(3) qualify as COVs under the elements clause, so Smith’s § 924(c) convictions survive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Davis renders Smith’s § 924(c) convictions invalid by voiding the residual clause | Davis invalidates § 924(c)(3)(B); convictions relying on that clause must be vacated | Even if residual clause invalid, convictions may stand if predicate offenses qualify under the elements clause | Court: Davis voids residual clause, but convictions survive on alternative grounds (elements clause) |
| Whether federal bank robbery (18 U.S.C. § 2113) is a COV under § 924(c)(3)(A) (elements clause) | Smith argued only vagueness; did not press that elements clause applies | Government: § 2113 necessarily involves threatened/use of force and is a COV | Court: § 2113 is a COV under the elements clause; supports § 924(c) counts |
| Whether attempted murder under 18 U.S.C. § 1114(3) is a COV under § 924(c)(3)(A) | Smith contended the elements clause cannot be applied retroactively to his case | Government: attempted murder targets murder (a violent offense), and attempt requires intent + substantial step → qualifies as a COV | Court: Attempted murder is a COV under the elements clause; conviction survives |
| Whether the government may rely on the elements‑clause alternative on appeal (forfeiture) | Implicit: Smith argued government forfeited elements‑clause defense by not pressing it below | Government: Elements clause was before district court and is properly considered; appellate court may affirm on alternative grounds | Court: Elements clause was adequately raised; in any event appellate court may affirm on alternative grounds and does so |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (residual clause of § 924(c)(3)(B) unconstitutional)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause void for vagueness)
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means violent force)
- Descamps v. United States, 570 U.S. 254 (2013) (categorical and modified categorical approaches)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing indivisible vs. divisible statutes for categorical analysis)
- United States v. Reece, 938 F.3d 630 (5th Cir. 2019) (retroactivity of Davis and guidance on elements‑clause analysis)
- United States v. Pervis, 937 F.3d 546 (5th Cir. 2019) (federal bank robbery qualifies as a crime of violence under the elements clause)
- United States v. Castleman, 572 U.S. 157 (2014) (knowing or intentional causation of bodily injury involves the use of physical force)
- Reyes‑Contreras v. United States, 910 F.3d 169 (5th Cir. 2018) (interpretation of "use" and "physical force" in related federal contexts)
- Braxton v. United States, 500 U.S. 344 (1991) (attempt requires substantial step and requisite mens rea)