United States v. Bullock

• Decision Date: 11 August 2020
• Docket Number: No. 18-1013,18-1013
• Parties: UNITED STATES of America v. Julious BULLOCK, Appellant
• Court: U.S. Court of Appeals — Third Circuit

970 F.3d 210

UNITED STATES of America

v.Julious BULLOCK, Appellant

No. 18-1013

United States Court of Appeals, Third Circuit.

Submitted March 2, 2020

Filed: August 11, 2020

Christy Martin, Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540, West Philadelphia, PA 19106, Attorney for Appellant Julious Bullock.

Robert O'Hara, Office of United States Attorney, 235 North Washington Avenue, P.O. Box 309, Suite 311, Scranton, PA 18503, Attorney for Appellee United States of America.

Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

The question presented is whether 18 U.S.C. § 111(b) —assaulting, resisting, or impeding certain officers or employees of the United States—is categorically a crime of violence under § 4B1.1 of the United States Sentencing Guidelines. We hold that it is.

I

Following an altercation with a correctional officer at the United States Penitentiary in Lewisburg in 2016, Julious Bullock pleaded guilty to knowingly and intentionally forcibly assaulting, resisting, opposing, impeding, intimidating, and interfering with a correctional officer in violation of 18 U.S.C. § 111(a) and (b). At sentencing, the District Court adopted the Presentence Investigation Report's (PSR) Guidelines calculation in its entirety. Based on the Court's determination that Bullock qualified as a career offender under U.S.S.G. § 4B1.1, his Guidelines range was 151 to 188 months’ imprisonment. The Court gave Bullock a substantial downward variance, imposing a sentence of 84 months’ imprisonment.

Bullock timely appealed, challenging the District Court's career offender designation. Bullock argues his conviction under 18 U.S.C. § 111 is not categorically a crime of violence.¹

II

Before he pleaded guilty in this case, Bullock had two prior convictions for robbery in North Carolina. The District Court found—and Bullock does not contest—that those convictions corresponded to generic robbery under U.S.S.G. § 4B1.2(a)(2). So Bullock is a career offender if his conviction in this case is a crime of violence. Section 111 states:

(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 ...

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, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 111.

Since subsections (a) and (b) carry different punishments, subsection (b) constitutes a different offense. United States v. Henderson , 841 F.3d 623, 630 (3d Cir. 2016). Accordingly, the Government argues that § 111 is divisible and the modified categorical approach applies. Bullock has not argued that § 111 is indivisible, Bullock Reply Br. 8., and does not mention the modified categorical approach in either of his briefs. But he acknowledges—consistent with our prior decision in United States v. McCulligan , 256 F.3d 97 (3d Cir. 2001) —that " Section 111 sets forth three separate crimes for the use of varied forcible conduct." Bullock Br. 9. In McCulligan , we held that " §§ 111(a) and 111(b) create three separate offenses: simple assaults, other ‘non-simple’ assaults not involving a dangerous weapon or injury, and assaults that involve a dangerous weapon or cause injury." 256 F.3d at 102 (citation omitted).²

Because § 111 creates three separate offenses, we join several of our sister circuits and hold that § 111 is divisible. See United States v. Bates , 960 F.3d 1278, 1286 (11th Cir. 2020) ("Thus, the statute is divisible, and the modified categorical approach applies."); United States v. Kendall , 876 F.3d 1264, 1269 (10th Cir. 2017) ("[W]e conclude the statute is divisible as a whole."); United States v. Taylor , 848 F.3d 476, 492 (1st Cir. 2017) (holding the statute "is plainly divisible"); United States v. Rafidi , 829 F.3d 437, 445 (6th Cir. 2016) (holding § 111 "sets forth ‘three separate crimes’ ") (citation omitted); United States v. Hernandez-Hernandez , 817 F.3d 207, 212 (5th Cir. 2016) ("But the parties agree, and our cases confirm, that § 111 is divisible."); see also United States v. Juvenile Female , 566 F.3d 943, 947 (9th Cir. 2009) ("The appropriate question before us, therefore, is whether an ‘assault involving a deadly or dangerous weapon or resulting in bodily injury,’ under 18 U.S.C. § 111, is, categorically, a crime of violence."). So we will apply the modified categorical approach. United States v. Ramos , 892 F.3d 599, 606–07 (3d Cir. 2018).

The modified categorical approach requires us to determine which subsection of § 111 Bullock violated. To do so, we inquire into the record of conviction "solely to determine the particular subpart under which the [defendant] was convicted." Jean-Louis v. Att'y Gen. , 582 F.3d 462, 474 n.16 (3d Cir. 2009) (citations omitted). The analysis then proceeds in the same manner as under the traditional categorical approach.

Guidelines § 4B1.1 provides that a defendant is a career offender if, among other factors, the "instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). Section 4B1.2(a)(1) then defines a "crime of violence" as any offense punishable by more than one year in prison which "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1). This provision is known as the elements clause. See United States v. Wilson , 880 F.3d 80, 83 n.2 (3d Cir. 2018).

In determining whether a specific offense qualifies as a "crime of violence" under § 4B1.1, we "compare the elements of the statute under which the defendant was convicted to the [G]uidelines’ definition of crime of violence." Id. at 83 (citation and internal quotation marks omitted). When analyzing a statute under the elements clause, we must determine whether "the use, attempted use, or threatened use of physical force against another person is categorically an element of the offense of conviction." Ramos , 892 F.3d at 606 (citation omitted). If it is, then the conviction is for a "crime of violence" under the Guidelines. Id.

Under the modified categorical approach, we look to the record of conviction to determine whether Bullock violated § 111(a) or § 111(b). Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2256, 195 L.Ed.2d 604 (2016) (explaining the modified categorical approach permits courts to "review the record materials to discover which of the enumerated alternatives played a part in the defendant's [ ] conviction"). Bullock pleaded guilty to a violation of " 18 U.S.C. §§ 111(a) & (b)." App. 7. The citation to both subsections indicates subsection (b) "was the operative statutory provision." See Hernandez-Hernandez , 817 F.3d at 214 & n.7.

Subsection (b) carries an enhanced penalty for offenders who use "a deadly or dangerous weapon" or who "inflict[ ] bodily injury." 18 U.S.C. § 111(b). Six circuit courts have already held that subsection (b) is a crime of violence. See Bates , 960 F.3d at 1285 ; Kendall , 876 F.3d at 1269–70 ; Taylor , 848 F.3d at 491–95 ; Rafidi , 829 F.3d at 445 ; Hernandez-Hernandez , 817 F.3d at 217 ; Juvenile Female , 566 F.3d at 947–48. Once again, we join the chorus. As the Tenth Circuit succinctly explained in Kendall , "a conviction under § 111(b) necessarily requires a finding the defendant intentionally used, attempted to use, or threatened to use physical force against the person of another." 876 F.3d at 1270 (internal quotations marks and alterations omitted) (quoting Hernandez-Hernandez , 817 F.3d at 217 ). Here, Bullock pleaded guilty to the enhanced penalty under § 111(b).³

A defendant may violate § 111(b) by committing forcible assault and either (1) using a deadly or dangerous weapon, or (2) inflicting bodily injury. 18 U.S.C. § 111(b). In the first scenario, a deadly or dangerous weapon includes "any object which, as used or attempted to be used, may endanger the life of or inflict great bodily harm on a person." United States v. Sanchez , 914 F.2d 1355, 1358–59 (9th Cir. 1990) (collecting cases). "[T]he object's latent capability ... coupled with the manner of its use, is determinative." United States v. Loman , 551 F.2d 164, 169 (7th Cir. 1977) (citation omitted). "A defendant who acts ‘forcibly’ using a deadly or dangerous weapon under § 111(b) must have used force by making physical contact with the federal employee, or at least threatened the employee, with an object that, as used, is capable of causing great bodily harm." Taylor , 848 F.3d at 494. As the First Circuit aptly concluded, "this enhancement necessarily requires the use or threat of force ‘capable of causing physical pain or injury to another.’ " Id. (quoting Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ).

In the second scenario, "[a]n assault that causes bodily injury by definition involves the use of physical force." Kendall , 876 F.3d at 1270. The Supreme Court has defined physical force as "violent force—that is, force capable of causing physical pain or injury to another person." Johnson , 559 U.S. at 140, 130 S.Ct. 1265. A forcible assault causing bodily injury is a "crime of violence" because it requires the use of physical...