ORDER ON DEFENDANTS’ MOTIONS TO DISMISS
Re: Dkt. Nos. 37, 38, 44
INTRODUCTION
Count Four of the indictment in this case charges defendants Donnie Bell, Dwight Hart, and Antonio Johnson with using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). The indictment alleges two crime of violence predicates for the section 924(c) charge: assault on a person assisting a federal officer in violation of 18 U.S.C. § 111 (Count Two), and robbery of government property in violation of 18 U.S.C. § 2112 (Count Three).
Defendants’ motions to dismiss under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), arguing that the section 924(c) charge fails to state an offense because neither of the alleged crime of violence predicates qualifies as a crime of
BACKGROUND
On May 7, 2015, Bell, Hart, and Johnson were charged in a common indictment with (1) one count of conspiracy, 18 U.S.C. § 371; (2) one count of assault on a person assisting a federal officer, 18 U.S.C. § 111; (3) one count of robbery of government property, 18 U.S.C. § 2112; (4) one count of using a firearm during a crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(i) and (ii), 924(c)(1)(B); (5) one count of felon in possession of a firearm, 18 U.S.C. § 922(g); and (6) one count of possession of an unregistered firearm, 26 U.S.C. § 5861(d). Dkt. No. 14 ¶¶ 1-9. The alleged crime of violence predicates for the section 924(c) charge are the assault in violation of section 111 (Count 2) and the robbery in violation of section 2112 (Count 3).
Bell and Hart filed separate motions to dismiss on November 18 and 19, 2015. Dkt. Nos. 37-38. On December 2, 2015, Johnson filed a motion for joinder in the motions to dismiss. Dkt. No. 44.
DISCUSSION
Section 924(c)(1)(A) provides for certain penalties for a person “who, during and in relation to any crime of violence..., uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). Under section 924(c)(3), a “crime of violence” in this context means
an offense that is a felony and (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.
18 U.S.C. § 924(c)(3). Courts generally refer to the “(A)” clause of section 924(c)(3) as the “force clause” and to the “(B)” clause of section 924(c)(3) as the “residual clause.”
Defendants contend that neither of the offenses underlying their section 924(c) charge qualifies as a crime of violence under section 924(c)(3), and that as a result the section 924(c) charge must be dismissed. Specifically, defendants contend that neither section 111 nor section 2112 is a crime of .violence under the force clause, and that under the Supreme Court’s recent ruling in Johnson v. United States, — U.S. -,
I. FORCE CLAUSE
I begin with the force clause, which, as stated above, defines “crime of violence” to include a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A).
To determine whether an offense qualifies as a “crime of violence” under section 924(c)(3), the Ninth Circuit applies the “categorical approach” set forth in Taylor v. United States,
A court applying the categorical approach must “determine whether the [offense] is categorically a ‘crime of violence’ by comparing the elements of the [offense] with the generic federal definition” — here, the definition of “crime -of violence” set forth in the section 924(c)(3) force clause. United States v. Sahagun-Gallegos,
In ascertaining the scope of conduct criminalized by the elements of an offense, the court considers not only the statutory language, “but also the interpretation of that language in judicial opinions.” Covarrubias Teposte v. Holder,
In a case involving a “divisible” statute, the court may also go beyond the categorical approach and apply the “modified categorical approach,” which allows the court “to examine a limited class of documents to determine which of a statute’s alternative elements formed the basis of the defendant’s prior conviction.” Descamps v. United States, — U.S. -,
Defendants focus their arguments regarding the section 924(c)(3) force clause on the specialized meanings that have been given to the terms “physical force” and “use.” In Johnson v. United States,
The Ninth Circuit has since extended this definition of “physical force” to other generic offense provisions, including 18 U.S.C. § 16(a) and U.S.S.G. § 2L1.2, both of which define “crime of violence” using language that is identical or essentially identical to that used in the ACCA force clause and the section 924(c)(3) force clause.
Finally, for a defendant to “use” violent force for the purposes of a crime of violence determination, the defendant must do so intentionally, not just' recklessly or negligently. See United States v. Dixon,
With this framework in mind, I turn to the alleged crime of violence predicates at issue here, assault in violation of 18 U.S.C.
A. 18 U.S.C. § 111
Count Two charges defendants with violating 18 U.S.C. § 111. The statute contains an “(a)” subsection and a “(b)” subsection and provides in whole:
(a) In general. Whoever
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or
(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person’s term of service,
shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more' than 8 years, or both.
(b) Enhanced penalty. Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shah be fined under this title or imprisoned not more than 20 years, or both.
18 U.S.C. § 111.'
The Ninth Circuit has held that section 111 creates three separate offenses. Dominguez-Maroyoqui,
The section 111(a) misdemeanor is obviously not a crime of violence under the section 924(e)(3) force clause, because to qualify as a crime of violence under section 924(c)(3), the offense must be a felony. See 18 U.S.C. § 924(c)(3).
Under recent Ninth Circuit precedent, the section 111(a) felony is not a crime of violence either. In United States v. Dominguez-Mdroyoqui, the Ninth Circuit considered whether a prior version of the section 111(a) felony qualifies as a ‘ crime of violence for the purposes of U.S.S.G. § 2L1.2.
This leaves section 111(b) as a possible crime of violence predicate. In United States v. Juvenile Female,
A defendant charged with the first variant, assault with a deadly or a dangerous weapon, must have always “threatened the use of physical force,” 18 U.S.C. § 16(a), because he or she will have either made a “wilful attempt to inflict injury” or a “threat to inflict injury” .. .with an object that “may endanger the life of or inflict great bodily harm on a person.”... Similarly, a defendant charged under the second variant, assault resulting in bodily injury, necessarily must have committed an act of force in causing the injury. Thus, both variants are “crimes of violence” pursuant to 18 U.S.C. § 16(a).
Id. at 948 (internal alterations omitted).
Defendants acknowledge that Juvenile Female squarely contradicts their position but contend that the case is no longer good law under Johnson I. In the Ninth Circuit, where intervening Supreme
Defendants are correct that Juvenile Female did not explicitly identify the particular level of force required for a section 111(b) conviction. See
Further, while I share some of defendants’ concerns over the breadth of conduct criminalized under section 111(b),
Defendants make no attempt to distinguish these or other similar decisions, or to identify real-world examples of section 111(b) being applied in a manner that is beyond the scope of “crime of violence” as defined in the section 924(c)(3) force clause. See Lawrence,
For all these reasons, I am not convinced that Juvenile Female has been effectively overruled by Johnson I merely because it did not explicitly identify the particular level of force required under section 111(b). See Miller,
I am also unpersuaded by defendants’ claim that Juvenile Female has been effectively overruled because it fails to take into account the distinction between “causing injury” and “using force.” See Bell Mot. at 11-13; Bell Reply at 2-3 (Dkt. No. 50). As
In any event, defendants* causing-injury versus using-force argument lacks merit. It is based principally on United States v. Torres-Miguel,
Critically, in reaching, this conclusion, Torres-Miguel distinguished the Ninth Circuit’s decision in United States v. Villavicencio-Burruel,
[T]he knowing or intentional causation of bodily injury necessarily involves the use of physical force ... The District Court thought otherwise, reasoning that one can cause bodily injury “without the ‘use of physical force’ ” — for example, by “deceiving the victim into drinking a poisoned beverage,- without making contact of any kind.” .... .
[...]
[But] the knowing or intentional application of force is a “use” of force. [Defendant] is correct that under Leocal, the word “use” “conveys the idea that the thing- used (here, ‘physical force’) has been made the user’s instrument.” But he. errs in arguing that although “poison may have ‘forceful physical properties’ as a matter of organic chemistry, no one would -say that a poisoner ‘employs’ force or ‘carries out a purpose by means of force’ when he or she sprinkles poison in a victim’s drink.” The “use of force” in [defendant’s] example is‘not the act-of “sprinkling” the poison; it is the act of employing poison knowingly as a device to cause physical harm. That the harm occurs--indirectly, rather than directly (as with a kick or punch), does not matter. Under [defendant’s] logic, after all, one could say that pulling the trigger on a gun is not a “use of force” because it is the bullet, not the trigger, that actually strikes the victim.
In sum, Juvenile Female remains binding on this Court and forecloses the argument that section 111(b) is not a crime of violence.
Because section 111(a) is not a crime of violence under the section 924(c)(3) force clause, but section 111(b) is, Count Two may serve as a predicate crime of violence for the section 924(c) charge so long as section 111 is a divisible statute subject to the modified categorical approach, and defendants are charged under section 111(b). Given that the Ninth Circuit has squarely held that section 111 “creates three separate offenses” with three different punishments, Dominguez-Maroyoqui,
B. 18 U.S.C. § 2112
Count Three charges defendants with violating 18 U.S.C. § 2112, “the general robbery-of-government-property statute.” United States v. Rivera,
Although the amount of force or violence used to take the keys from [the victim] was rather minimal, there was sufficient evidence for a rational trier of fact to conclude that a robbery did occur. [The victim’s] key chain was attached to his clothing, and [the defendant] had to pull the chain once or perhaps twice to snatch the keys. Courts have upheld robbery convictions when the item taken is so attached to the person or his clothes as to require some force to effect its removal.
Id. at 1052 (internal quotation marks and footnotes omitted); see also United States v. Depass,
The government does not address Rodriguez in its opposition brief. The government cites to Mendez and Melton, discussed above, as well as to a series of recent out-of-circuit district court cases holding that Hobbs Act robbery under 18 U.S.C. § 1951 is a crime of violence under the section 924(c)(3) force clause. See Opp. at 3-4 (Dkt. No. 47). But the government offers no explanation of why the amount of physical force required for a section 2112 conviction is sufficient to satisfy Johnson I. See id.
The amount of force necessary to commit a section 2112 robbery under this rule is less than violent force. In United States v. Flores-Cordero,
The amount of force used by the defendant in Rodriguez was no more than the amount of force involved in kicking one’s arresting officers and causing a “minor scuffle.” See Flores-Cordero,
This raises the question of whether section 2112 is divisible. It is not. In United States v. Dixon, the Ninth Circuit addressed the divisibility of California Penal Code § 211, which defines robbery in essentially the same terms as the common law, i.e., “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means, of force or fear.” Cal. Penal Code § 211. The Ninth Circuit observed that the statute has two disjunctively worded phrases (“person or immediate presence” and “force or fear”) but- concluded that the phrases “are alternative means, not alternative elements” and do not render the statute divisible. Dixon,
II. RESIDUAL CLAUSE
Because I find that section 2112 is not a crime of violence under the section 924(c)(3) force clause, I proceed to whether the statute qualifies as a crime of violence under the 924(c)(3) residual clause. Defendants do not dispute that section 2112 robbery, “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.” 18 U.S.C. § 924(c)(3)(B). Defendants argue instead that the 924(c)(3) residual clause is unconstitutionally vague under Johnson II and thus cannot be'used to support the section 924(c) charge against them.
In Johnson II, the Supreme Court held that imposing an increased sentence under the ACCA residual clause violates due process.
The Court then identified two features of the ACCA residual clause that “conspire to make it unconstitutionally vague.” Id. First, it “leáves grave uncertainty” about how to assess the risk of physical injury presented by a given crime. Id. It does so by requiring judges to base their assessment of risk on a judge-imagined “ordinary case” of a crime without instructing on “[h]ow [to] go about deciding what kind of conduct the ‘ordinary case’ of a crime involves.” Id. The clause thus “offers no reliable way to choose between .,. com? peting accounts” of what kind of conduct is involved in an “ordinary ease.” Id. at 2558. Second, the clause “leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.”. Id. The Court concluded that the clause, “[b]y combining
Defendants argue that the section 924(c)(3) residual clause is unconstitutional under the reasoning of Johnson II. They point out that the section 924(c)(3) residual clause requires application of the same “ordinary case” analysis undergirding the analysis in Johnson II, and that the section 924(c)(3) residual clause contains “essentially the same” language as the ACCA residual clause. See Bell Mot. at 6-9; Hart Mot. at 3-4 (Dkt. No. 37). They also note that the Ninth Circuit in Dimaya v. Lynch,
The government responds that the ACCA residual clause and the section 924(c)(3) residual clause “have different legal definitions,” in particular in that the ACCA residual clause is preceded by four enumerated examples of violent felonies. See 18 U.S.C. § 924(e)(2)(B)(ii) (“violent felony” means “any crime punishable by imprisonment for a term exceeding one year [that] is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another”) (emphasis added). In Johnson II, the Court noted that these four enumerated crimes contribute to the indeterminacy of the ACCA residual clause because they “confirm[ ] that the court’s task [in applying the categorical approach] goes beyond evaluating the chances that the physical acts that make up the crime will injure someone,” and because they “force[ ] courts to interpret ‘serious potential risk’ in light of the four enumerated crimes,” each of which is “far from clear” with respect to the degree of risk it ordinarily poses. Id. at 2557-58 (internal quotation marks omitted). In addition, the Court rejected concerns that holding the ACCA residual clause unconstitutional would cast doubt on other federal and state laws using terms like “substantial risk,” observing that “[a]lmost none of the cited laws links a phrase such as ‘substantial risk’ to a confusing list of examples.” Id. at 2561. The Court then stated: “More importantly, almost all of the cited laws require gauging the riskiness of conduct in which an individual engages on a particular occasion. As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as ‘substantial risk’ to real-world conduct.” Id. (emphasis in original).
With respect to Dimaya, the government emphasizes that the Ninth Circuit explicitly cabined its holding to the particular application of the particular statute before it, stating in a footnote that its “decision does not reach the constitutionality of applications of 18 U.S.C. § 16(b) outside of 8 U.S.C. § 1101(a)(43)(F) or cast any doubt on the constitutionality of 18 U.S.C. § 16(a)’s definition of a crime of violence.” Dimaya,
I agree with defendants that the section 924(c)(3) residual clause cannot stand un
The government’s emphasis on the four enumerated crimes preceding the-ACCA residual clause was addressed in both Dimaya and Vivas-Ceja and is no more persuasive here than it was in those cases. The Ninth Circuit in Dimaya explained
It is true that, after the Court set forth its holding in [Johnson II], it cited [18 U.S.C. § 924(e)(2)(B)(ii)’s] four enumerated offenses in responding to the government’s argument that the Court’s holding would cast doubt on the many criminal statutes that include language similar to the indeterminate term “serious potential risk.” In doing so, however, it stated that while the listed offenses added to the uncertainty, the fundamental reason for the Court’s holding was the residual clause’s “application of the ‘serious potential risk’ standard to an idealized ordinary case of the crime.” In short, this response clearly reiterated that what distinguishes ACCA’s residual clause from many other provisions in criminal statutes was, consistent with its fundamental holding, the use of the “ordinary case” analysis. [Johnson ID therefore made plain that the residual clause was void for vagueness in and of itself for the reasons stated in reaching its decision, and not because of the clause’s relation to the four listed offenses.
The government insists that [Johnson ID doesn’t compel this conclusion because the Court placed special emphasis on the confusion created by the list of enumerated crimes preceding the residual clause, a feature not present in § 16(b). The government overreads this part of the Court’s analysis. As we’ve explained, the heart of the Court’s opinion demonstrates why the two as*924 pects of the residual clause’s categorical approach — the ordinary-case determination and the risk assessment — “conspire” to- make the clause unconstitutionally vague. Only later did the Court observe that the residual clause also “forces courts to interpret serious potential risk in light of the four enumerated crimes,” which are “far from clear in respect to the degree of risk each poses.” In other words, the enumeration of specific crimes did nothing to fclarify the quality' or quantity of risk necessary to classify offenses under the statute. The list itself wasn’t one of the “two features” that combined to make the clause unconstitutionally vague.
The government’s reliance on the cabin-ing footnote in Dimaya is also unpersuasive. Dimaya held that 18 U.S.C. § 16(b) is unconstitutionally vague because, like the ACCA residual clause, it “requires courts to (1) measure the risk by an indeterminate standard of a judicially imagined ordinary case, not by real-world facts or statutory elements and (2) determine by vague and uncertain standards when a risk is sufficiently substantial.”
I recognize that a number of district courts have declined to extend Johnson II to the section 924(c)(3) residual clause. See, e.g., United States v. Green, No. 15-cr-00526,
CONCLUSION
Count Tw,o (assault in violation of 18 U.S.C. § 111) charges a crime of violence under section 924(c)(3). Count Three (robbery in violation of 18 U.S.C. § 2112) does
IT IS SO ORDERED.
Notes
. Johnson's motion for joinder, Dkt. No. 44, is GRANTED.
. This is the exact same language as the section 924(c)(3) force clause, except that it refers only to the “person of another,” as opposed to the "person or property of another.”
. 18 U.S.C. § 16(a) defines "crime of violence” as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” 18 U.S.C. § 16(a). Under U.S.S.G. § 2L1.2, "crime of violence" means
[mjurder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (in-eluding where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a-minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.
U.S.S.G. 2L1.2 (emphasis added).
. In his reply brief, Hart states in a footnote that Count Two is duplicitous because it charges all three section 111 offenses. Hart Reply at 2 n.1 (Dkt. No. 48). “Ari indictment is duplicitous where a single count joins two or more distinct and separate offenses. One vice of duplicity is that a jury may find a defendant guilty on a count without having reached a unanimous verdict on the commission of a particular offehse.” United States v. Ramirez-Martinez,
. The relevant version of section 111(a) provided in relevant part:
(a) In General. Whoever:
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this*914 title while engaged in or on account of the performance of official duties; or
(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the' performance of official duties during such person’s term of service,
shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and in all other cases, be fined under this title or imprisoned not more than three years, or both.
Dominguez-Maroyoqui,
. Juvenile Female also held that section 111(b) is a crime of violence under 18 U.S.C. § 16(b), which defines "crime of violence” using language identical to the section 924(c)(3) residual clause. See Juvenile Female, 566 F.3d at 947-48. I address the section 924(c)(3) residual clause in more detail below.
. Likewise, the Supreme Court in Johnson I relied in part on this statement from Leocal in determining that physical force under the ACCA force clause means violent physical force. See Johnson I,
. For example, to be convicted under the section 111(b) “bodily injury” variant, the defendant must have intended to commit the assault, Juvenile Female,
. In United States v. Mendez, the Ninth Circuit held that conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951 is a crime of violence under the section 924(c)(3) residual clause.
. The version of 18 U.S.C. § 2114 in effect at the time stated in relevant part:
Whoever assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such ... property of the United States, or robs any such person of ... property of 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 ... property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, ... shall be imprisoned not more than twenty five years.
Rodriguez,
. The evidence at trial also showed that the defendant's co-conspirator subsequently "threatened [the victim] with [a] gun.” Rodriguez,