970 F.3d 210
3rd Cir.2020Background
- In 2016 Julious Bullock forcibly assaulted a correctional officer at USP Lewisburg and pleaded guilty to 18 U.S.C. §§ 111(a) & (b).
- The PSR treated Bullock as a career offender based on two prior North Carolina robbery convictions; the District Court adopted the PSR and calculated a Guidelines range of 151–188 months, then varied downward to impose 84 months.
- Bullock appealed, arguing his § 111 conviction is not categorically a "crime of violence" under U.S.S.G. § 4B1.1, which would negate the career-offender designation.
- § 111 contains separate penalty provisions; subsection (b) enhances penalties where the defendant uses a deadly/dangerous weapon or inflicts bodily injury.
- The Third Circuit applied the modified categorical approach, found § 111 divisible, concluded Bullock pleaded to the enhanced § 111(b) offense, and held § 111(b) is categorically a crime of violence.
- The court affirmed Bullock’s sentence and career-offender designation.
Issues
| Issue | Bullock's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether § 111(b) is categorically a "crime of violence" under U.S.S.G. § 4B1.1 elements clause | § 111 can be violated without the elements of "physical force against the person" required by the Guidelines | § 111(b) necessarily requires use, attempted use, or threatened use of physical force (weapon use or bodily injury) | § 111(b) is categorically a crime of violence |
| Whether § 111 is divisible and the modified categorical approach applies | (did not contest divisibility) | § 111 is divisible into three offenses (simple assault; non-simple assault without weapon/injury; assault with weapon or injury) | § 111 is divisible; modified categorical approach applies |
| Whether bodily injury or weapon use under § 111(b) can be satisfied by indirect or non-person-directed conduct (relying on Murdock) | § 111 can be violated by conduct that indirectly causes injury or by using a weapon to interfere without threatening the officer | The statute requires forcible conduct directed at the officer; indirect force that causes injury still constitutes "force" and the weapon enhancement requires use/threat against the officer | Rejected Murdock distinction; indirect application of force counts but must be in commission of acts directed at the officer; enhancement requires force directed at the person |
| Whether Bullock preserved his challenge to the career-offender designation | Argues the claim was preserved via PSR objections and sentencing conference statements | Government argued failure to preserve would result in waiver | Court found the record demonstrates preservation and proceeded to decide the issue |
Key Cases Cited
- United States v. Bates, 960 F.3d 1278 (11th Cir. 2020) (held § 111(b) is a crime of violence)
- United States v. Kendall, 876 F.3d 1264 (10th Cir. 2017) (held § 111 divisible and § 111(b) is a crime of violence)
- United States v. Taylor, 848 F.3d 476 (1st Cir. 2017) (concluded § 111 is plainly divisible and § 111(b) involves violent force)
- United States v. Rafidi, 829 F.3d 437 (6th Cir. 2016) (interpreting § 111 forcible element and enhancement)
- United States v. Hernandez-Hernandez, 817 F.3d 207 (5th Cir. 2016) (agreed § 111 is divisible)
- United States v. Juvenile Female, 566 F.3d 943 (9th Cir. 2009) (held § 111(b) a crime of violence)
- McCulligan v. United States, 256 F.3d 97 (3d Cir. 2001) (recognized three separate § 111 offenses)
- Johnson v. United States, 559 U.S. 133 (2010) (defined "physical force" as violent force capable of causing pain or injury)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (explained the modified categorical approach)
- Castleman v. United States, 572 U.S. 157 (2014) (held common-law concept of force includes indirect application of force)