United States v. Muskett

• Citation: 970 F.3d 1233
• Decision Date: 14 August 2020
• Docket Number: No. 17-2123,17-2123
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Donovan MUSKETT, Defendant - Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

970 F.3d 1233

UNITED STATES of America, Plaintiff - Appellee,

v.Donovan MUSKETT, Defendant - Appellant.

No. 17-2123

United States Court of Appeals, Tenth Circuit.

FILED August 14, 2020

Aric G. Elsenheimer, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant - Appellant.

Jennifer M. Rozzoni, Assistant United States Attorney (John C. Anderson, United States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff - Appellee.

Before BACHARACH, McHUGH, and EID, Circuit Judges.

McHUGH, Circuit Judge.

In this 28 U.S.C. § 2255 case, Donovan Muskett appeals the denial of his motion to vacate his federal conviction for brandishing a firearm in furtherance of a crime of violence on the basis of the Supreme Court's decision in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019) (invalidating the residual clause in 18 U.S.C. § 924(c) ’s definition of a "crime of violence" as unconstitutionally vague).

The parties’ primary dispute on appeal is whether Mr. Muskett's predicate federal felony—assault with a dangerous weapon, 18 U.S.C. § 113(a)(3) —qualifies as a crime of violence under the elements clause,¹ thereby rendering harmless the Davis defect in his conviction. Mr. Muskett suggests that we must conduct this analysis using the law as it existed at the time of his conviction because application of current law would violate due process limits on the retroactive application of judicial decisions enlarging criminal liability.

As explained below, our precedent compels the conclusion that assault with a dangerous weapon is categorically a crime of violence under the elements clause. And we conclude that at the time of his offense, Mr. Muskett had fair notice that § 924(c) ’s elements clause could ultimately be construed to encompass his commission of assault with a dangerous weapon. We thus affirm the district court's denial of Mr. Muskett's § 2255 motion.

I. BACKGROUND

A. Mr. Muskett's Federal Conviction

On August 22, 2013, a grand jury returned a superseding indictment that charged Mr. Muskett with four counts: assault with a dangerous weapon in Indian Country under 18 U.S.C. § 113(a)(3) ; aggravated burglary in Indian Country (based on New Mexico's aggravated burglary statute by way of the federal Assimilative Crimes Act); using, carrying, possessing, and brandishing a firearm during and in relation to and in furtherance of a crime of violence under 18 U.S.C. § 924(c) ; and negligent child abuse in Indian Country.

On November 6, 2013, Mr. Muskett entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).² Under that agreement, Mr. Muskett pleaded guilty only to the § 924(c) charge³ (for using, carrying, possessing, and brandishing a firearm in furtherance of a crime of violence), and the government agreed to dismiss the three remaining counts. Pursuant to Rule 11(c)(1)(C), the parties agreed that, contingent on the district court's acceptance of the plea agreement, Mr. Muskett would be sentenced to an 84-month term of imprisonment.

On March 11, 2014, the district court accepted Mr. Muskett's plea and sentenced him to 84 months of imprisonment followed by a three-year term of supervised release.⁴

B. Mr. Muskett's § 2255 Proceedings

On June 16, 2016, just under a year after the Supreme Court invalidated the Armed Career Criminal Act's residual clause definition of "violent felony" in Johnson v. United States , 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), Mr. Muskett filed a 28 U.S.C. § 2255 motion seeking to vacate his conviction and to "set this matter for resentencing on the remaining counts of the indictment." App. Vol. I, at 31–42. Mr. Muskett argued that the residual clause invalidated by Johnson was "materially indistinguishable from the residual clause under [§] 924(c)," and thus § 924(c) ’s residual clause was similarly unconstitutional. App. Vol. I, at 34. Mr. Muskett further asserted that none of his predicate, dismissed charges qualified as crimes of violence under § 924(c) ’s elements clause, and thus his conviction could not be sustained under that definition.

On June 2, 2017, the magistrate judge to whom Mr. Muskett's § 2255 motion had been referred issued proposed findings and a recommendation that Mr. Muskett's motion be denied. The magistrate judge concluded that even if § 924(c) ’s residual clause was invalid, Mr. Muskett's commission of assault with a dangerous weapon (as criminalized by 18 U.S.C. § 113(a)(3) ) satisfied the elements clause.

Mr. Muskett timely objected to the magistrate's conclusion that his conviction could be sustained under the elements clause, but on July 6, 2017, the district judge overruled that objection, adopted the magistrate's findings and recommended disposition, denied Mr. Muskett's § 2255 motion, and declined to issue a Certificate of Appealability ("COA").

Following a timely notice of appeal, Mr. Muskett filed his opening brief in this court in which he sought a COA. In March of 2019, the Clerk's office entered an order abating Mr. Muskett's appeal pending resolution of our then-pending appeal in United States v. Bowen , a case already abated pending the Supreme Court's resolution of Davis .

In June of 2019, the Supreme Court issued its decision in Davis , invalidating § 924(c) ’s residual clause as "unconstitutionally vague."⁵ 139 S. Ct. at 2336. In September of 2019, we issued our decision in Bowen , concluding that " Davis ’s new rule is substantive and therefore retroactively applicable to cases on collateral review." United States v. Bowen , 936 F.3d 1091, 1100 (10th Cir. 2019).

Shortly after our decision in Bowen , we entered an order lifting the abatement in this appeal and granting Mr. Muskett a broad COA encompassing the entirety of the district court's denial of his § 2255 motion. We further ordered supplemental briefing to permit the parties to address the effect of Bowen and Davis on Mr. Muskett's entitlement to post-conviction relief.

II. DISCUSSION

Under 28 U.S.C. § 2255(a),

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Pursuant to this statute, Mr. Muskett seeks to vacate his conviction based on the Supreme Court's invalidation of § 924(c) ’s residual clause definition of a "crime of violence." See Davis , 139 S. Ct. at 2336. The government counters that Mr. Muskett's predicate federal felony—assault with a dangerous weapon—separately satisfies § 924(c) ’s elements clause definition, and thus any Davis infirmity in Mr. Muskett's conviction is harmless.

"On appeal from the denial of a § 2255 motion, ... we review the district court's findings of fact for clear error and its conclusions of law de novo." United States v. Snyder , 871 F.3d 1122, 1125 (10th Cir. 2017) (internal quotation marks omitted). Because the parties’ dispute on appeal is purely legal, our review is de novo.

To prevail on appeal, Mr. Muskett must establish that his conviction cannot be sustained under § 924(c) ’s elements clause.⁶ Under § 924(c) ’s elements clause, an offense is a crime of violence if it "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 Mr. Muskett's commission of assault with a dangerous weapon qualifies as a crime of violence under the elements clause, we apply the categorical approach. See Bowen , 936 F.3d at 1102. Under that framework, we must first identify the minimum force required to commit the crime of assault with a dangerous weapon, and then "determine if that force categorically fits the definition of physical force." United States v. Ontiveros , 875 F.3d 533, 535–36 (10th Cir. 2017) (quotation marks omitted).

According to Mr. Muskett, we must decide whether his crime falls within the elements clause based on the law as it existed at the time he committed it. To better contextualize Mr. Muskett's argument concerning retroactive application of current law, we begin our analysis by tracing the development of precedent from this court and the Supreme Court interpreting "physical force" as used in various federal statutes and the United States Sentencing Guidelines (the "Guidelines").

A. Changes in the Interpretation of "Physical Force"

Now, as in 2013 when Mr. Muskett brandished a firearm in furtherance of the crime of assault with a dangerous weapon, the "force" component in "physical force" refers to "violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States (Curtis Johnson ), 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). As indicated by the presence of "capable" in that definition, violent force "does not require any particular degree of likelihood or probability that the force used will cause physical pain or injury; only potentiality." Stokeling v. United States , ––– U.S. ––––, 139 S. Ct. 544, 554, 202 L.Ed.2d 512 (2019). And now, as in 2013, "physical" refers to the type of force employed: "force exerted by and through concrete bodies—distinguishing physical force from, for example, intellectual force or emotional force." Curtis Johnson , 559 U.S. at 138, 130 S.Ct. 1265.

But while these definitions were static both before and after Mr. Muskett's conduct, our precedent addressing whether such "physical force" must be applied directly to the person or property of another to qualify under the elements clause was not. That is, whether persons employ "physical force" when they do not directly impart such force onto the person or property of...