United States v. Bryant

• Citation: 949 F.3d 168
• Decision Date: 24 January 2020
• Docket Number: No. 17-6719,17-6719
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Terron Lamar BRYANT, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

949 F.3d 168

UNITED STATES of America, Plaintiff - Appellee,

v.Terron Lamar BRYANT, Defendant - Appellant.

No. 17-6719

United States Court of Appeals, Fourth Circuit.

Argued: October 29, 2019

Decided: January 24, 2020

ARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: John P. Cronan, Acting Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Beth Drake, Acting United States Attorney, Columbia, South Carolina, Nick Bianchi, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Before KING, FLOYD, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion in which Judge King and Judge Rushing joined.

FLOYD, Circuit Judge:

In 2010, Terron Lamar Bryant was convicted for assaulting with intent to rob, steal, or purloin a postal employee and placing their life in jeopardy by use of a dangerous weapon, in violation of 18 U.S.C. § 2114(a), and for brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). The district court sentenced Bryant to 46 months on the § 2114(a) aggravated-assault charge (Count I), followed by 84 months for the § 924(c) violation (Count II). Bryant did not file a direct appeal. Instead, in 2016, he moved to vacate his § 924(c) conviction and sentence under 28 U.S.C. § 2255.¹ The district court denied Bryant’s motion both initially and upon reconsideration, and this appeal followed. For the reasons set forth below, we hold that Bryant’s § 2114(a) conviction constitutes a "crime of violence" under § 924(c) ’s force clause. Therefore, we affirm the judgment of the district court.

I.

We review de novo whether an offense qualifies as a crime of violence under § 924(c). United States v. Mathis , 932 F.3d 242, 263 (4th Cir. 2019). Section 924(c) provides that a person who "uses or carries" a firearm "during and in relation to any crime of violence," or who "possesses" a firearm "in furtherance of any such crime," may be separately convicted of both the underlying crime of violence and the use, carrying, or possession of that firearm. 18 U.S.C. § 924(c)(1)(A) ; accord United States v. Walker , 934 F.3d 375, 377 (4th Cir. 2019). A "crime of violence" is defined for such purposes as "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 refer to § 924(c)(3)(A) as the ‘force clause’ and to § 924(c)(3)(B) as the (now-invalid) ‘residual clause.’ " Walker , 934 F.3d at 377 ; see also United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2323–24, 2336, 204 L.Ed.2d 757 (2019) (invalidating residual clause as unconstitutionally vague). In light of Davis , which the Supreme Court decided while Bryant’s appeal was pending before this Court, the parties now agree that Bryant’s § 2114(a) conviction only qualifies as a crime of violence if it satisfies the force clause.

II.

To determine whether an offense qualifies as a crime of violence under the force clause of § 924(c)(3)(A), "we apply the categorical approach or the modified categorical approach, depending on the nature of the offense." Mathis , 932 F.3d at 264 ; accord Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).

We must apply the categorical approach when the predicate statute "sets out a single (or ‘indivisible’) set of elements to define a single crime." Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). Under this approach, we focus on "the elements of the prior offense rather than the conduct underlying the conviction," United States v. Cabrera-Umanzor , 728 F.3d 347, 350 (4th Cir. 2013), and ask whether those elements "necessarily require the use, attempted use, or threatened use of physical force," United States v. Simms , 914 F.3d 229, 233 (4th Cir. 2019). If the "minimum conduct necessary" to sustain a conviction under the predicate statute does not require the use, attempted use, or threatened use of force, see Castillo v. Holder , 776 F.3d 262, 267 (4th Cir. 2015), then the offense "is not ‘categorically’ a crime of violence under the force clause." Walker , 934 F.3d at 378 (quoting Simms , 914 F.3d at 233 ). In undertaking this inquiry, however, we must ensure that there is a "realistic probability," rather than a "theoretical possibility," that the minimum conduct would actually be punished under the statute. Moncrieffe v. Holder , 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (quoting Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ).

The "modified" categorical approach is simply "a tool for implementing the categorical approach." Descamps , 570 U.S. at 262, 133 S.Ct. 2276 ; see also Mathis , 136 S. Ct. at 2249 (describing modified categorical approach as aid for determining "what crime, with what elements, a defendant was convicted of"). We apply this approach in the " ‘narrow range of cases’ " involving a "divisible" statute. Descamps , 570 U.S. at 261, 133 S.Ct. 2276 (quoting Taylor v. United States , 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ).

A divisible statute is one that lists "potential offense elements in the alternative," and thus includes "multiple, alternative versions of the crime." Id. at 260, 262, 133 S.Ct. 2276 (emphasis added). A statute that merely lists alternative means of committing a crime is not divisible. Mathis , 136 S. Ct. at 2249 ; see also Omargharib v. Holder , 775 F.3d 192, 198 (4th Cir. 2014) ("[A] crime is divisible under Descamps only if it is defined to include multiple alternative elements (thus creating multiple versions of a crime), as opposed to multiple alternative means (of committing the same crime). Elements, as distinguished from means, are factual circumstances of the offense the jury must find unanimously and beyond a reasonable doubt." (citations and internal quotation marks omitted)).

If a court determines that the underlying statute is divisible, and that application of the modified categorical approach is therefore appropriate, then it may examine a limited set of documents, such as "the indictment, jury instructions, or plea agreement and colloquy," Mathis , 136 S. Ct. at 2249, for the sole purpose of determining "which of the statute’s alternative elements formed the basis of the defendant’s prior conviction," Descamps , 570 U.S. at 262, 133 S.Ct. 2276. And once a court has isolated the specific crime of conviction, it must apply the traditional categorical approach outlined above to determine whether that crime constitutes a "crime of violence" under § 924(c) ’s force clause. See Mathis , 136 S. Ct. at 2249, 2256 ; cf. Mathis , 932 F.3d at 265 & n.23.

III.

With this framework in mind, we turn to consider whether Bryant’s § 2114(a) conviction constitutes a crime of violence under § 924(c) ’s force clause. If so, we must affirm the district court’s denial of Bryant’s § 2255 motion collaterally attacking his § 924(c) conviction and sentence.

As noted, the predicate statute in this case is 18 U.S.C. § 2114. Section 2114 is located within the "Robbery and Burglary" chapter of the federal criminal code and is titled "Mail, money, or other property of United States." Bryant was charged under paragraph (a) of this section, which reads:

(a) Assault. —A person who 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 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 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 mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned not more than twenty-five years.

18 U.S.C. § 2114(a).

At the outset, the parties agree that § 2114(a) is divisible into at least two parts: a basic version of the crime in the first clause (before the semicolon) and an aggravated version of the crime with an enhanced maximum penalty in the second clause (after the semicolon). Accord Knight v. United States , 936 F.3d 495, 498–99 (6th Cir. 2019) ; United States v. Enoch , 865 F.3d 575, 580–81 (7th Cir. 2017). Instead, they dispute whether the aggravated version of the crime (that is, the additional "wounding" and "life in jeopardy by the use of a dangerous weapon" elements in the second clause) applies only to the robbery and attempted robbery offenses listed in the first clause, and not to assault.

In the government’s view, the aggravated version of the crime is not so limited, and Bryant’s offense of conviction is appropriately characterized as "life-in-jeopardy assault" under § 2114(a). See Appellee’s Br. 2. But Bryant avers that the second clause of the statute cannot apply to "assault with intent to rob" convictions. See Appellant’s Br. 22.² In essence, Bryant claims that there is no such thing as "life-in-jeopardy assault," even though both the indictment and his plea agreement explicitly state that he put the victim’s life in jeopardy by using a dangerous weapon. His logic goes something like this: The first clause outlines two categories of offenses—(1) assault with intent to...