MICHAEL L. KNIGHT v. UNITED STATES OF AMERICA
No. 17-6370
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
August 27, 2019
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 19a0217p.06. Appeal from the United States District Court for the Eastern District of Tennessee of Chattanooga. Nos. 1:10-cr-00120-1; 1:14-cv-00132—Harry S. Mattice, Jr., District Judge.
Before: COOK, McKEAGUE, and WHITE, Circuit Judges.
COUNSEL
ON BRIEF: Paul D. Clement, Edmund G. LaCour Jr., Kasdin M. Mitchell, Megan M. Wold, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant. John P. Taddei, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Debra A. Breneman, UNITED STATES ATTORNEY‘S OFFICE, Knoxvillе, Tennessee, for Appellee.
HELENE N. WHITE, Circuit Judge. Petitioner-Appellant Michael L. Knight appeals the district court‘s denial of his motion to amend his
The government concedes that under Davis kidnapping in violation of
I.
A superseding indictment charged Knight with ten counts: (1) and (2) two counts of bank fraud in violation of
After exhausting his direct appeals, Knight filed a motion to vacate, set aside, or correct his sentence pursuant to
While this appeal was pending, the Supreme Court held in Davis that the residual clause of the definition of crime of violence in
II.
The government maintains that Knight‘s conviction for assault and robbery of a postal employee under
“In reviewing a district court‘s denial of a motion under Section 2255, we apply a clearly erroneous standard to its factual findings and review its conclusions of law de novo.” Hyatt v. United States, 207 F.3d 831, 832 (6th Cir. 2000). “Whether a crime constitutes a ‘crime of violence’ under
“We use a ‘categorical approach’ to determine whether an offense constitutes a ‘crime of violence’ for purposes of
Knight was convicted of assault and robbery in violation of
(a) Assault.--A person who assaults any person having lawful charge, control, or custody of any mail mattеr or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs or attempts to rob any such person of mail matter, or of any money, or other property оf the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of а dangerous weapon, or for a subsequent offense, shall be imprisoned not more than twenty-five years.
We first consider whether the statute is divisible. The parties do not appear to dispute that the statute is divisible, and we conclude that the statute sets out a separate aggravated offense. The aggravated offense carries both an additional element
Both parties seem to recognize that Knight was convicted of the aggravated offense. The documents we may consider to determine Knight‘s offense confirm that conclusion. The superseding indictment chargеs Knight with “rob[bing] and assault[ing] with the intent to rob, steal and purloin from [the postal employee], a person having lawful charge, custody and control of United States mail matter, money and other property of the United States, and in doing so ... put[ting] the life of the [postal employee] in jeopardy by the use of a dangerous weapon....” (R. 17, PID 53 (emphasis added).) The jury was also instructed that in order to convict Knight of the offense, it had to find beyond a reasonable doubt that “in committing [the]
assault and robbery, [Knight] put the life of [the postal employee] in jeopardy by use of a dangerous weapon.” (R. 52, PID 393.)2
Because Knight was convicted of the aggravated offense under
Here, Knight‘s conviction for aggravated assault and robbery required at least the threatened use of physical force. The requirement that the defendant must аssault with the intent to rob, rob, or attempt to rob and in the process “wound the person ... or put[] his life in jeopardy by the use of a dangerous weapon” necessarily requires the use, attempted use, or threatened use of physical force as defined in Johnson I. Our precedent explains that the use of a deadly weapon in the commission of an offense that requires some use of force can transform that force into the necessary violent physical force. In United States v. Rede-Mendez, the court addressed when a crime committed with a deаdly weapon is a crime of violence under the United States Sentencing Guidelines. Id. at 552. The court reasoned that a deadly weapon “does not necessarily supply the threat [of physical force] if it is not already present in the underlying crime.” Id. at 558. Thereforе, “the underlying crime must already have as an element some degree of, or the threat of, physical force in the more general sense (such as ‘the least touching‘).” Id.
Rafidi and Verwiebe applied this analysis to determine whether offenses qualified as crimes of violence under the elements clause of
harm” under
Both assault and robbery require at least sоme force or threatened use of force, and the use of a dangerous weapon to put the victim‘s life in jeopardy transforms the force into violent physical force. An assault is “(1) willfully attempting to inflict injury on another person or (2) threatening to inflict injury on another person, causing a reasonable apprehension of immediate bodily harm.” Verwiebe, 874 F.3d at 261 (noting that where a statute does not define assault, the court “give[s] the term its established common law meaning“). The common-law crime of robbery has “long required force or violence.” Stokeling v. United States, 139 S. Ct. 544, 550 (2019). The offense‘s requirement that the defendant use a dangerous weapon to put the victim‘s life in jeopardy ensures that at least the threat of physical force is present. The jury was instructed that “[t]o ‘put in jeopardy’ the life of another person ‘by the usе of a dangerous weapon’ means . . . to expose a person to a risk of death by using a dangerous weapon or device that is capable of inflicting death or severe bodily harm.” (R. 52, PID 394.)
Notably, two other circuits have held that the aggravated puts-the-victim‘s-life-in-jeopardy-by-the-use-of-a-dangerous-weapon offense of
Knight‘s arguments that aggravated assault and robbery is not а crime of violence are unavailing. Knight argues that assault does not require the necessary physical force because an assault can result from “mere ‘offensive touching.‘” (Reply at 8 (quoting United States v. Delis, 558 F.3d 177, 178 (2d Cir. 2009)).) Knight also argues that “someone can ‘rob’ another without using violent force.” (Id. at 9.) However, Knight ignores the additional element that the defendant put the postal employee‘s life in jeopardy by use of a dangerous weapon. See United States v. Harris, 853 F.3d 318, 321–22 (6th Cir. 2017) (rejecting argument that court should consider each element alone bеcause the categorical approach “requires that the offense overall includes sufficient force” (emphasis in original)). As we have recognized, the use of a deadly weapon can transform less-than-violent-physical force
Relying on United States v. Rodriguez, 925 F.2d 1049 (7th Cir. 1991), Knight argues that even a concealed gun satisfies the element of use of a gun in
In Enoch, the defendant made the same Rodriguez-based argument that Knight makes here. The Enoch court found it unpersuasive, concluding that “it is beyond question that robbery that puts a person‘s life in jeopardy by the use of a dangerous weapon is a violent crime.” Id. at 582 (internal quotation marks omitted). Moreover, Rodriguez‘s conclusion that mere possession suffices as “use of a dangerous weapon” to put the victim‘s life in danger under the statute, even if accepted,3 does not negate the statutory requirement that in effecting the crime, the victim‘s life is put in jeopardy by use of the gun. That requirement, combined with the threat of general force required by both assault and robbery, amounts to the use of violent physical force. See Verwiebe, 874 F.3d at 261; Rafidi, 829 F.3d at 446.
In sum, we conclude that the aggravated offense of
III.
For the reasons stated, we VACATE Knight‘s conviction for use of a gun in relation to kidnapping (Count 7 of the superseding indictment), AFFIRM Knight‘s conviction for use оf a gun in relation to assault and robbery (Count 5 of the superseding indictment), and REMAND for proceedings consistent with this opinion.