United States v. Mjoness
| Decision Date | 13 July 2021 |
| Docket Number | No. 20-8029,20-8029 |
| Citation | 4 F.4th 967 |
| Parties | UNITED STATES of America, Plaintiff - Appellee, v. Joshua James MJONESS, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John C. Arceci, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant – Appellant.
Thomas A. Szott, Assistant United States Attorney (Mark A. Klaassen, United States Attorney, with him on the brief), District of Wyoming, Cheyenne, Wyoming, for Plaintiff – Appellee.
Before TYMKOVICH, Chief Judge, KELLY, and McHUGH, Circuit Judges.
Joshua James Mjoness challenges his conviction under 18 U.S.C. § 924(c) for using and carrying a firearm in relation to a crime of transmitting threats in interstate commerce under 18 U.S.C. § 875(c). The question on appeal is whether 18 U.S.C. § 875(c) constitutes a crime of violence such that it may serve as a predicate for the 18 U.S.C. § 924(c) charge. Because § 875(c) provides separate elements in the form of threats to kidnap or, alternatively, threats to injure, we conclude Mr. Mjoness's offense of transmitting threats to injure in interstate commerce meets the definition of a crime of violence. We therefore affirm the district court's order, but on alternate grounds.
On September 18, 2019, Mr. Mjoness sent a text message from Wyoming to North Dakota containing a threat to injure another person. The text message included a picture of a firearm. Mr. Mjoness admitted he made this threat with the intent and knowledge it would be viewed as a threat, and that he included the picture of the firearm to make clear he would use the firearm as part of the threat.
In a five-count indictment, a federal grand jury in the District of Wyoming charged Mr. Mjoness with transporting a firearm in interstate commerce with the intent to commit a felony, in violation of 18 U.S.C. § 924(b) (Count I); two counts of "transmitt[ing] in interstate commerce a communication containing a threat to injure the person of another," in violation of 18 U.S.C. § 875(c) (Counts II & III); using and carrying a firearm during and in relation to federal crimes of violence—specifically, threats by interstate communications, as alleged in Counts II and III—in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count IV); and possessing a firearm as an unlawful user of a controlled substance, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2) (Count V). ROA, Vol. I at 9–11.
Mr. Mjoness moved to dismiss Count IV, the § 924(c) count, arguing § 875(c) does not constitute a crime of violence under the categorical approach and so is not a proper predicate. The district court denied the motion, reasoning there was no realistic possibility § 875(c) could be applied to acts that are not crimes of violence, meaning a violation of it categorically constitutes a crime of violence.
Thereafter, Mr. Mjoness entered into a plea agreement with the government, under which he pleaded guilty to the § 924(c) count in return for the government dismissing the other four counts. The parties also agreed to a sentence of 60 months’ imprisonment; if the court imposed a higher sentence, the plea agreement became void. In addition, the plea agreement was conditional—Mr. Mjoness reserved his right to appeal the district court's denial of his motion to dismiss the § 924(c) count. If Mr. Mjoness prevails on that argument before this court, the agreement provides that he may withdraw his guilty plea and the government may reinstate the remaining counts in the indictment.
The district court accepted the plea agreement and sentenced Mr. Mjoness to 60 months’ imprisonment. Mr. Mjoness now exercises his reserved right to appeal the district court's denial of his motion to dismiss the § 924(c) charge.
The question in this case is whether 18 U.S.C. § 875(c) constitutes a crime of violence and may therefore serve as a predicate offense under § 924(c). A "crime of violence," for purposes of § 924(c), is a felony 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 is a crime of violence, courts may compare only the statutory definition of the predicate crime with § 924(c) ’s definition of "crime of violence"; courts may not consider the facts underlying a particular offense. United States v. Bowen , 936 F.3d 1091, 1102 (10th Cir. 2019). This restricted inquiry is dubbed the "categorical approach." Id. Section 875(c) criminalizes threats to kidnap as well as threats to injure. If these alternatives are merely different means by which a defendant can commit a particular element of a single crime, we apply the categorical approach. In contrast, if the alternatives are separate elements, either of which can be proved beyond a reasonable doubt to constitute a distinct crime, we apply the "modified categorical approach" and review record materials to determine which element formed the basis of the conviction. The latter type of criminal statute—i.e., one that sets out one or more elements of the crime in the alternative—is referred to as a "divisible statute." Descamps v. United States , 570 U.S. 254, 258, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). A statute is "indivisible" if it does not contain alternative elements. Id.
Mr. Mjoness argues § 875(c) is indivisible and a threat to kidnap does not categorically require a threat of physical force because kidnapping can be accomplished by inveiglement.2 The government raises three counterarguments on appeal. First, the government argues § 875(c) is divisible, and because Mr. Mjoness was convicted under the threat-to-injure branch there is no need to consider whether a threat to kidnap may be accomplished without violence. Second, the government contends a nonviolent threat to kidnap would not constitute a "true threat" and thus could not be prosecuted under § 875(c).3 Third, the government asserts that a nonviolent threat to kidnap, even if theoretically possible, is not a realistic probability and therefore does not prevent § 875(c) from being a crime of violence for purposes of § 924(c). Because we conclude that § 875(c) is divisible and that an offense based on a threat to injure is a crime of violence, we affirm on those alternate grounds.4
Title 18, Section 924(c)(1)(A) of the United States Code proscribes "us[ing] or carr[ying] a firearm" "during and in relation to any crime of violence," or "in furtherance of any such crime, possess[ing] a firearm." As noted, a "crime of violence" is a felony 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).5
"[T]he ‘force’ component in ‘physical force’ refers to ‘violent force—that is, force capable of causing physical pain or injury to another person.’ " United States v. Muskett , 970 F.3d 1233, 1239 (10th Cir. 2020) (quoting Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ), cert. denied , ––– U.S. ––––, 141 S. Ct. 1710, 209 L.Ed.2d 478 (2021). This requires "only potentiality," not "any particular degree of likelihood or probability that the force used will cause physical pain or injury." Id. (quoting Stokeling v. United States , ––– U.S. ––––, 139 S. Ct. 544, 554, 202 L.Ed.2d 512 (2019) ). And "physical" means "force exerted by and through concrete bodies—distinguishing physical force from, for example, intellectual force or emotional force." Id. (quoting Johnson , 559 U.S. at 138, 130 S.Ct. 1265 ).
Under the categorical approach, courts "look[ ] to the elements of the statute of conviction ‘and not to the particular facts underlying [that conviction].’ " United States v. O'Connor , 874 F.3d 1147, 1151 (10th Cir. 2017) () (quoting Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). Put another way, the court must examine "whether the elements of the offense are of the type that would justify its inclusion ... without inquiring into the specific conduct of this particular offender." United States v. Melgar-Cabrera , 892 F.3d 1053, 1061 (10th Cir. 2018) (quotation marks omitted). But for a crime to fall outside the definition, "there must be ‘a realistic probability, not a theoretical possibility,’ that the statute at issue could be applied to conduct that does not constitute a crime of violence." Id. (quoting Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ).
Laws that are alternatively phrased—that is, laws that utilize two or more terms in the disjunctive—present a more complicated inquiry. "The first task for a sentencing court faced with an alternatively phrased statute is ... to determine whether its listed items are elements or means." Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2256, 195 L.Ed.2d 604 (2016). "Elements" are the constituent parts of the definition of a crime, the things the prosecution must prove beyond a reasonable doubt to sustain a conviction. Id. at 2248. By contrast, "means" are different ways of committing a single element. Id. at 2249. A jury need not unanimously agree upon which factual "means" a defendant used to commit an element of the offense; it is enough that each juror believes the defendant committed all elements via one or more means. Id. If the alternative phrasing sets forth means, the statute is indivisible and the court must apply the categorical approach as normal. Id. at 2256. But if a statute sets forth alternative elements, the statute is divisible and the court must "review the record materials to discover which of the enumerated alternatives played a part in the defendant's ... conviction, and then compare that element (along with all...
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