United States v. Allred

• Citation: 942 F.3d 641
• Decision Date: 07 November 2019
• Docket Number: No. 18-6843,18-6843
• Parties: UNITED STATES of America, Plaintiff – Appellant, v. Jimmy Lee ALLRED, Defendant – Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

942 F.3d 641

UNITED STATES of America, Plaintiff – Appellant,

v.Jimmy Lee ALLRED, Defendant – Appellee.

No. 18-6843

United States Court of Appeals, Fourth Circuit.

Argued: September 18, 2019

Decided: November 7, 2019

ARGUED: Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Leza Lee Driscoll, LAW OFFICE OF LEZA LEE DRISCOLL, PLLC, Raleigh, North Carolina, for Appellee. ON BRIEF: Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, Criminal Division UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Matthew G.T. Martin, United States Attorney, Angela H. Miller, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellant.

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Reversed and remanded by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Agee joined.

WILKINSON, Circuit Judge:

In 1995, a jury in the United States District Court for the Middle District of North Carolina found appellee Jimmy Lee Allred guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 264 months in prison under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. 924(e). Just over twenty years later, in 2016, Allred filed a motion pursuant to 28 U.S.C. § 2255 protesting that his sentence was no longer valid because his predicate conviction for retaliation against a witness, see 18 U.S.C. § 1513(b)(1), did not qualify as an ACCA violent felony in light of the Supreme Court’s decision in Samuel Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). The district court granted relief and subsequently resentenced Allred to a term of 120 months in prison with credit for time served. See Allred v. United States , 2018 WL 1936481 (M.D.N.C., April 24, 2018) ; J.A. 143-49. Because we hold that causing bodily injury to a witness under § 1513(b)(1) is categorically a violent ACCA felony, we reverse the judgment.

I.

On June 16, 1994, Allred was arrested by local police outside a restaurant in Greensboro, North Carolina. Earlier that evening, a security guard at the restaurant had called the police after he observed Allred enter the restaurant with the outline of a firearm in his pants. When the police arrived, Allred left the restaurant and proceeded to a vehicle driven by a third party. As Allred entered the car, a police officer saw him place a firearm under the passenger’s seat. The officer ordered both occupants out of the vehicle and, after finding a Glock semi-automatic handgun under the seat, placed Allred under arrest.

Because he was a convicted felon, Allred was charged in the Middle District of North Carolina with one count of possession of a firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1). A jury found him guilty on February 16, 1995.

Typically, a conviction under § 922(g) carries a statutory maximum sentence of ten years in prison. See 18 U.S.C. § 924(a)(2). But if the defendant is considered an armed career criminal under the ACCA, then he is subject to a mandatory minimum sentence of fifteen years with a maximum of life imprisonment. 18 U.S.C. § 924(e)(1) ; see also United States v. Vann , 660 F.3d 771, 772 (4th Cir. 2011) (en banc) (per curiam). A defendant is an armed career criminal if he has three predicate convictions for either a "violent felony or a serious drug offense." Id. Allred’s pre-sentence report listed three such predicate convictions: (1) a 1986 North Carolina state conviction for felony assault with a deadly weapon with intent to kill inflicting serious injury, (2) a 1990 North Carolina state conviction for felony possession with intent to sell and deliver cocaine, and (3) a 1990 federal conviction for retaliating against a witness in violation of 18 U.S.C. § 1513(b)(1).^* Consequently, the district court found Allred to be an armed career criminal and sentenced him to 264 months in prison.

At the time of Allred’s sentence, ACCA defined a "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that either (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another," (2) "is burglary, arson, or extortion, [or] involves [the] use of explosives," or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). These three provisions are often referred to as (1) the "force clause," also known as the "elements clause;" (2) the "enumerated clause;" and (3) the "residual clause," respectively. See Stokeling v. United States , ––– U.S. ––––, 139 S. Ct. 544, 556, 202 L.Ed.2d 512 (2019). In Samuel Johnson v. United States , the Supreme Court held that the residual clause was unconstitutionally vague. ––– U.S. ––––, 135 S. Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). As a result, "the elements clause and the enumerated clause are now the only channels by which a prior conviction can qualify as an ACCA ‘violent felony.’ " Stokeling , 139 S. Ct. at 556.

The Supreme Court applied Samuel Johnson retroactively to cases on collateral review in Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 194 L.Ed.2d 387 (2016). Allred thereafter filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Because Allred had already filed a § 2255 motion, he needed this court’s authorization to file a second or successive motion. Finding that he had "made a prima facie showing that the new rule of constitutional law announced in [ Samuel Johnson ] ... may apply to his case," we granted Allred the requisite authorization on May 5, 2016, thus permitting consideration of his motion by the district court. J.A. 68-69.

Allred’s claim for relief focused solely on his federal conviction for witness retaliation under 18 U.S.C. § 1513(b)(1). In pertinent part, § 1513(b)(1) makes it a felony punishable by up to ten years in prison to "knowingly engage[ ] in any conduct and thereby cause[ ] bodily injury to another person or damage[ ] the tangible property of another person, or threaten[ ] to do so, with intent to retaliate against any person for" being a witness or party in certain official proceedings. 18 U.S.C. § 1513(b)(1). For the purposes of § 1513, "bodily injury" is defined as "(A) a cut, abrasion, bruise, burn, or disfigurement; (B) physical pain; (C) illness; (D) impairment of the function of a bodily member, organ, or mental faculty; or (E) any other injury to the body, no matter how temporary." 18 U.S.C. § 1515(a)(5).

The basis for Allred’s § 2255 motion was that his conviction under § 1513(b)(1) no longer qualifies as a "violent felony" for ACCA purposes. Preliminarily, he argued that federal witness retaliation does not fall within the ambit of either the force or enumerated clauses. And because the government could no longer rely on the residual clause after Samuel Johnson , he concluded that it simply cannot count as a predicate offense under ACCA. Thus, Allred maintained that he has only two predicate convictions and was not properly subject to the ACCA sentence enhancement.

In response to Allred’s motion, the government conceded that a conviction pursuant to § 1513(b)(1) cannot qualify as an ACCA predicate under the enumerated clause or the residual clause. But it nevertheless maintained that Allred’s sentence was valid because his § 1513(b)(1) offense is a violent felony under the force clause.

The district court agreed with Allred. It held that Allred’s conviction for witness retaliation was not a violent felony under the force clause. As a result, the court granted Allred’s requested relief and resentenced him to 120 months in prison with credit for time served.

The government appealed, challenging the district court’s conclusion that witness retaliation under § 1513(b) is not a violent felony under the force clause.

II.

We begin by laying out the framework that governs our analysis of predicate offenses under ACCA. Whether an offense constitutes a "violent felony" and thus qualifies as a predicate conviction for purposes of ACCA is a question of law that we review de novo. United States v. Cornette , 932 F.3d 204, 207 (4th Cir. 2019).

At the outset, we must determine which of the two modes of analysis the Supreme Court has approved in this context applies to the instant case. Specifically, we must choose between the "categorical approach" and the "modified categorical approach." See United States v. Hemingway , 734 F.3d 323, 327 (4th Cir. 2013).

Where the criminal statute at issue is indivisible, that is it "sets out a single ... set of elements to define a single crime," we are bound to apply the categorical approach. Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) ; see also United States v. Winston , 850 F.3d 677, 683 & n.5 (4th Cir. 2017). In that mode of analysis, we focus "only [on] the elements of the ... offense and the fact of conviction, not [on] the defendant’s conduct." United States v. Doctor , 842 F.3d 306, 308 (4th Cir. 2016). To qualify as a predicate offense under the categorical approach and ACCA’s force clause, the offense itself "necessarily must have as an element the ‘use, attempted use, or threatened use of physical force against the person of another.’ " United States v. Gardner , 823 F.3d 793, 803 (4th Cir. 2016) (quoting 18 U.S.C. § 924(e)(2)(B)(i) ).

In making that determination, we counterintuitively ignore whether the defendant’s actual conduct involved such a use of force. Doctor , 842 F.3d at 308. Instead, we ask whether "the most innocent conduct that the law criminalizes" requires proof of the use, attempted use, or threatened use of force sufficient to satisfy the force clause. United States v. Drummond , 925 F.3d 681, 689 (4th Cir. 2019). If so, then the offense categorically qualifies as a...