970 F.3d 1233
10th Cir.2020Background
- Donovan Muskett was indicted on four counts (including assault with a dangerous weapon, aggravated burglary, §924(c) firearm charge, and negligent child abuse); he pleaded guilty only to §924(c) under a Rule 11(c)(1)(C) agreement and was sentenced to 84 months.
- His §924(c) conviction rested on the now-invalidated residual clause; the government dismissed the other counts as part of the plea.
- Muskett filed a §2255 motion after Johnson and litigated collateral relief following the Supreme Court’s decision in Davis (which invalidated §924(c)’s residual clause); the district court denied relief, finding his assault conviction independently satisfied §924(c)’s elements clause.
- The primary legal dispute on appeal: whether 18 U.S.C. §113(a)(3) (assault with a dangerous weapon) is categorically a “crime of violence” under §924(c)(3)(A)’s elements clause (use/attempted use/threatened use of physical force), and whether applying later cases that broadened “physical force” to include indirect force violated Muskett’s due‑process fair‑notice rights.
- The Tenth Circuit majority held §113(a)(3) necessarily involves the attempted or threatened use of physical force (direct or indirect) and that Muskett had fair notice (so Davis’s invalidation of the residual clause is harmless); a dissent argued Ontiveros retroactively expanded liability in a way that denied fair warning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether assault with a dangerous weapon (18 U.S.C. §113(a)(3)) categorically is a "crime of violence" under §924(c)(3)(A) | Muskett: §113(a)(3) can be satisfied without the violent (physical) force required by the elements clause | Govt: §113(a)(3) requires an attempted or threatened use of physical force capable of causing pain or injury | Yes — the offense necessarily includes attempted or threatened physical force (direct or indirect) and thus qualifies under the elements clause |
| Whether the court must apply only the law existing at the time of the offense (i.e., Ontiveros/Castleman may not be applied retroactively) | Muskett: Retroactive application of Ontiveros (overruling Perez‑Vargas) expanded criminal liability and violated due‑process fair warning | Govt/Majority: Curtis Johnson, circuit disagreement, and subsequent Supreme Court decisions made the broader construction foreseeable | No — majority: retroactive application is permissible because the meaning of "physical force" was ambiguous, Johnson signaled the issue, and circuit split made change foreseeable; dissent would forbid retroactive application |
| Whether invalidation of §924(c)’s residual clause (Davis) requires vacatur of Muskett’s §924(c) conviction | Muskett: Because his predicate did not qualify under the elements clause, Davis requires relief | Govt: Even without the residual clause, the predicate (assault with a dangerous weapon) satisfies the elements clause, so any Davis error is harmless | Harmless error — conviction stands because the predicate meets the elements clause |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (invalidated §924(c) residual clause as unconstitutionally vague)
- Johnson v. United States, 559 U.S. 133 (2010) (defined "physical force" as force capable of causing physical pain or injury)
- United States v. Castleman, 572 U.S. 157 (2014) (held common-law force can be indirect and cause bodily injury)
- United States v. Ontiveros, 875 F.3d 533 (10th Cir. 2017) (overruled Perez‑Vargas and applied Castleman to conclude indirect force can satisfy elements clause)
- United States v. Bowen, 936 F.3d 1091 (10th Cir. 2019) (held Davis’s new rule is substantive and retroactive on collateral review)
- United States v. Perez‑Vargas, 414 F.3d 1282 (10th Cir. 2005) (earlier Tenth Circuit decision distinguishing direct vs indirect force; later overruled)
- Bouie v. City of Columbia, 378 U.S. 347 (1964) (due‑process fair‑warning rule forbids retroactive judicial expansion that is unexpected and indefensible)
- United States v. Lanier, 520 U.S. 259 (1997) (explained fair‑warning due‑process standard for retroactive judicial constructions)
- United States v. Rodgers, 466 U.S. 475 (1984) (noted that circuit conflicts can make prospective overruling reasonably foreseeable)