IN RE: James Allen IRBY, III, Movant.
No. 16-601
United States Court of Appeals, Fourth Circuit.
Argued: September 22, 2016. Decided: June 1, 2017
231
SHEDD, Circuit Judge:
A jury convicted James Allen Irby of second-degree murder in retaliation against a witness or informant, in violation of
I.
The underlying facts are not in dispute. In early January 2001, Terrence Deadwyler began cooperating with federal authorities in an effort to avoid a lengthy prison sentence from an ongoing drug trafficking case. As part of this cooperatiоn, Deadwyler, through his attorney Tony Miles, informed agents with the Bureau of Alcohol, Tobacco, and Firearms (ATF) that an associate, Irby, possessed a gun in his apartment. ATF agents confirmed that Irby lived in the specified apartment, did not have a permit for a gun, and was a convicted felon. Several days later, the ATF executed a warrant at Irby‘s apartment and recovered a gun.
Irby, who was incarcеrated and awaiting trial in D.C. Superior Court at the time, remained in custody pending a federal felon-in-possession charge. Irby was represented in the federal case by Deadwyler‘s attorney, Tony Miles. On Irby‘s behalf, Miles filed a request for disclosure of the informant. At that point, Miles discovered that Deadwyler was the informant and moved to recuse himself from Irby‘s case. At the same time, the federal prosecutors determined that revealing Deadwyler as the informant in Irby‘s case would harm other ongoing investigations and dismissed the case against Irby.
During his detention on the felon-in-possession charge, Irby‘s father passed away. Because Irby believed that the search warrant executed at the apartment he shared with his father caused his father‘s health to fail, he blamed the informant for his father‘s passing and turned his attеntion to uncovering the informant‘s identity. In March 2003, Irby and Deadwyler were together when Deadwyler took a call from his attorney. At the end of the call, Irby asked who Deadwyler‘s attorney was, and Deadwyler told him it was Miles. This revelation left Irby convinced that Deadwyler was the informant against him.
Around 1:00 a.m. on the morning of March 28, 2003, Irby entered Deadwyler‘s apartment and shot him three times—under the left eye, through the neck, and in thе flank—with two shots coming from close range. Irby next proceeded to stab Deadwyler 174 times. He then retrieved Deadwyler‘s valuables and clothes, put them in a pile, and lit them on fire. The fire caused the evacuation of Deadwyler‘s apartment complex and significant property damage.
Irby later confided in his cousin that he was certain that Deadwyler was the informant and that Deadwyler had tаken his father from him. Irby told his cousin Deadwyler‘s murder did not bother him be
A federal grand jury indicted Irby on three charges: first-degree retaliatory murder (Count 1); causing death with a firearm (Count 2); and destruction of property by firе (Count 3). Following a trial, the jury convicted Irby of Counts 2 and 3. On Count 1, the jury found Irby guilty of the lesser-included offense of second-degree retaliatory murder. The district court sentenced Irby to 38 years imprisonment. As previously mentioned, Irby‘s first
II.
A.
To qualify for authorization to file a successive
To satisfy Hubbard‘s requirements, Irby points to Johnson. In Johnson, the Supreme Cоurt ruled that the residual clause of the Armed Career Criminal Act,
B.
(A) Has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) That by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
We briefly note the categorical approach is a particularly bad fit in
In this case, the absurdity of Irby‘s position is magnified because Irby was also convicted of violating
Our precedent requires application of that approach, however, and accordingly, we must address whether Irby‘s second-degree retaliatory murder conviction is categorically a crime of violence under the force clause.
C.
Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
D.
Applying the categorical approach, we conclude that Irby cannot meet Hubbard‘s second requirement. As we explain, Johnson does not help Irby: his conviction for second-degree retaliatory murder is a crime of violence under
In Curtis Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (Curtis Johnson), the Court examined the definition of “physical force” under the ACCA,
More recently, the Court has expounded upon what it means to use physical force. In United States v. Castleman, — U.S. —, 134 S.Ct. 1405, 1409, 188 L.Ed.2d 426 (2014), the defendant was previously convicted of “intentionally оr knowingly causing bodily injury to” his child‘s mother. The Court was tasked with answering whether this conviction amounted to a misdemeanor crime of domestic violence, that is, a crime that “has as an element the use of physical force.” Id. (quoting
The Court first determined that, unlike in Curtis Johnson, the reference to “force” in
In so holding, the Court rejected the district court‘s position that a defendant could cause injury by indirect means, like poison, that did not require any fоrce. As the Court reiterated, physical force “is simply ‘force exerted by and through concrete bodies,‘” and common-law force “encompasses even its indirect application.” Id. (quoting Curtis Johnson, 559 U.S. at 138). “It is impossible to cause bodily injury without applying force in the common-law sense.” Id. at 1415. The Court then emphatically rejected Castleman‘s argument that “no one would say that a poisoner employs force,” because “the knowing or intentional application of force is a use of force.” Id. (internal quotation marks omitted). As the Court succinctly explained:
The “use of force” in Castleman‘s example is not the act of “sprinkl[ing]” the poison; it is the act of employing poison knowingly as a device to cause physical harm. That the harm occurs indirectly,
Curtis Johnson and Castleman make it pellucid that second-degree retaliatory murder is a crime of violence under the force clause because unlawfully killing another human being requires the use of force “capable of causing physical pain or injury to another person.” See United States v. Luskin, 926 F.2d 372, 379 (4th Cir. 1991) (traveling interstate to commit murder was crime of violence under force clause because it “certainly threatened the use of violence“); United States v. Mathis, 963 F.2d 399, 407 (D.C. Cir. 1992) (noting
Irby posits multiple hypothetical means for committing second-degree murder without applying direct force (for instance, convincing a person to expose themselves to hazardous chemicals), but Castleman forecloses the argument that indirect means of applying force are not a use of force. In Irby‘s hypothetical, it is enough that the individual intentionally acted to place the victim in the path of an inevitable force. Just as with the poisoner, “it is the act of employing [chemicals] knowingly as a device to cause physical harm” that qualifies as the use of force. Castleman, 134 S.Ct. at 1415. Simply, “[i]t is hard to imagine conduct that can cаuse another to die that does not involve physical force against the body of the person killed“. Checora, 155 F.Supp.3d at 1197.4
Under Irby‘s approach, the most morally repugnant crime—murder—would not be a crime of violence “while at the same time permitting many less-serious crimes to be so classified.” United States v. Alfaro, 835 F.3d 470, 477-78 (4th Cir. 2016). For instance, we have recently reaffirmed that armed bank robbery, which criminalizes the taking of certain property by “force and violence, or by intimidation,” is a crime of violence under
E.
In a final effort to save his motion for authorization, Irby рoints to United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012) which, in his view, indicates that second-degree retaliatory murder does not
In Torres-Miguel, we examined a prior state conviction for “threaten[ing] to commit a crime which will result in death or great bodily injury to another.” Id. at 167 (quoting Cal. Penal Code § 422(a)) (emphasis omitted). We held that such a conviction did not have “as an element the use, attempted use, or threatened use of physical force against the person of another,” as required by § 2L1.2 of the United States Sentencing Guidelines. In reaching this conclusion, we explained that “[a]n offense that results in physical injury, but does not involve the use or threatened use of force, simply does not meet the Guidelines definition,” and that the California statute thus failed to fall within the Guidelines definition because “a crime may result in death or serious injury without involving use of physical fоrce.” Id. at 168 (emphasis in original). We explained that the California statute could be violated without the use of physical force because “a defendant can violate statutes like § 422(a) by threatening to poison another,6 which involves no use or threatened use of force.” Id. at 168-69.
Even accepting Irby‘s position that Torres-Miguel would extend beyond threat statutes to crimes such as second-degree retaliatory murder, the distinction we drew in Torres-Miguel between indirect and direct applications of force and our conclusion that poison “involves no use or threatened use of force,” no longer remains valid in light of Castleman‘s explicit rejection of such a distinction.7
In sum, one cannot unlawfully kill another human being without a use of physical force capable of causing physical pain or injury to another, and Irby‘s conviction for second-degree retaliatory murder falls within the force clause.
III.
To qualify for authorization to file a successive
MOTION DENIED
Notes
United States v. McGuire, 706 F.3d 1333, 1337-38 (11th Cir. 2013).It makes little difference that the physical act, in isolation from the crime, can be done with a minimum of force; we would not say that laying spikes across a roadway is a non-violent crime because laying something upon the ground is not a forceful act. It still involves an intentionаl act against another‘s property that is calculated to cause damage and that is exacerbated by indifference to others’ wellbeing.
