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United States v. Bowen

United States Court of Appeals, Tenth Circuit

September 3, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
AARON BOWEN, Defendant-Appellant.

          Appeal from the United States District Court for the District of Colorado (D.C. Nos. 16-CV-01119-REB & 05-CR-00425-REB-4)

          Meredith B. Esser, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, and Josh Lee, Assistant Federal Public Defender, with her on the briefs), Office of the Federal Public Defender for the District of Colorado, Denver, Colorado, appearing for Appellant.

          J. Bishop Grewell, Assistant United States Attorney (Robert C. Troyer, Acting United States Attorney, with him on the brief), Office of the United States Attorney for the District of Colorado, Denver, Colorado, appearing for Appellee.

          Before BRISCOE, KELLY, and McHUGH, Circuit Judges.

          BRISCOE, CIRCUIT JUDGE.

         Aaron Bowen appeals the district court's dismissal of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Bowen challenges his conviction for brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), which rested on the trial court's instruction that witness retaliation was a crime of violence under 18 U.S.C. § 924(c)(3). Given the narrowing of issues by the parties and developments in the law while this appeal was pending, resolution of this case requires us to answer certain questions and leave others for another day. In short, we hold that United States v. Davis, 139 S.Ct. 2319 (2019), in which the Supreme Court held that 18 U.S.C. § 924(c)(3)(B) is void for vagueness, created a new substantive rule that is retroactively applicable on collateral review, and we conclude that Bowen's convictions for witness retaliation do not qualify as crimes of violence under 18 U.S.C. § 924(c)(3)(A). Therefore, Bowen is actually innocent of 18 U.S.C. § 924(c)(1). The parties have agreed in this case that, if Bowen is actually innocent, his § 2255 motion is timely. Because Bowen is entitled to relief under § 2255, we REVERSE the district court's dismissal of Bowen's § 2255 motion and REMAND with instructions to VACATE his § 924(c)(1) conviction.[1]

         I

         In 2007, a jury convicted Bowen of: (1) aiding and abetting the retaliation against a witness, in violation of 18 U.S.C. § 1513(b)(2); (2) conspiracy to retaliate against a witness, in violation of 18 U.S.C. §§ 371 and 1513(e) (collectively, the "witness retaliation convictions"); and (3) possession and brandishing of a firearm in furtherance of a federal crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (the "brandishing conviction"). The district court sentenced Bowen to 161 months in prison and a five-year term of supervised release. This sentence included an 84-month sentence for Bowen's brandishing conviction, to be served consecutively to his witness retaliation conviction sentences.

         Bowen's brandishing conviction was imposed pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), which provides, in relevant part, that "any person who, during and in relation to any crime of violence . . ., uses or carries a firearm," or who possesses a firearm in furtherance of the crime of violence, shall, "if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years" to run consecutively to the term of imprisonment for the underlying crime of violence. 18 U.S.C. § 924(c)(1)(A)(ii) (emphasis added). Section 924(c)(3) defines "crime of violence" as:

         [A]n 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). Subsection (A) is referred to as the "elements clause," and subsection (B) is referred to as the "residual clause." The jury was instructed that both of Bowen's witness retaliation convictions were crimes of violence.

         On June 26, 2015, the United States Supreme Court held in Johnson v. United States that 18 U.S.C. § 924(e)(2)(B)(ii), the Armed Career Criminal Act's (the "ACCA") residual clause, is void for vagueness. 135 S.Ct. 2551, 2563 (2015). That clause defined a "violent felony" as a felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. at 2555-56 (emphasis omitted). The Court later made its Johnson ruling retroactive to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         Within one year of the Court's decision in Johnson, Bowen filed this § 2255 motion challenging his brandishing conviction. Bowen argued that although Johnson expressly applied to the ACCA's residual clause, it also invalidated § 924(c)(3)'s residual clause. And, according to Bowen, his witness retaliation convictions could only qualify as crimes of violence under the residual clause, § 924(c)(3)(B), because they do not constitute crimes of violence under the elements clause, § 924(c)(3)(A). Therefore, Bowen argued, Johnson mandates that his brandishing conviction be vacated.

         The district court dismissed Bowen's § 2255 motion. As to Bowen's conviction for aiding and abetting witness retaliation, the district court concluded that "witness retaliation constitutes a crime of violence under" the elements clause. ROA at 122. The district court "assume[d] without deciding" that Bowen's conviction for conspiracy to retaliate against a witness did not qualify as a crime of violence under the elements clause, id., but concluded that Bowen's § 2255 motion was untimely because he was not "assert[ing] a right newly recognized by the Supreme Court in Johnson," id. at 124. On January 13, 2017, the district court entered final judgment, dismissing Bowen's motion. Id. at 128.

         Bowen filed a timely notice of appeal, and we granted a certificate of appealability on the following two issues:

In Johnson v. United States, 135 S.Ct. 2551 (2015), the Court invalidated part of the Armed Career Criminal Act. Bowen filed a post-conviction motion challenging a similar (but not identical) statute, 18 U.S.C. § 924(c)(3)(B), as unconstitutional under Johnson. Does such a motion "assert[]" a violation of "the right . . . newly recognized" in Johnson so as to authorize an otherwise barred post-conviction motion under 28 U.S.C § 2255(f)(3)?
Bowen was convicted under 18 U.S.C. § 924(c) for brandishing a firearm during a crime of violence, predicated on the offense of retaliating against a witness, 18 U.S.C. § 1513. Does Bowen's § 924(c) conviction violate Johnson in that retaliating against a witness qualifies as a crime of violence only under § 924(c)(3)(B), which is unconstitutional under Johnson?

Dkt. No. 10477354, at 3-4.

         After briefing and oral argument, we abated this case pending the Supreme Court's decision in United States v. Davis. On June 24, 2019, the Supreme Court ruled in Davis that § 924(c)(3)(B), the residual clause, is void for vagueness. 139 S.Ct. at 2336. We thereafter lifted the abatement and ordered supplemental briefing.

         II

         "On appeal from the denial of a § 2255 motion, ordinarily 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) (quoting United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015)). When, as here, "the district court does not hold an evidentiary hearing, but rather denies the motion as a matter of law upon an uncontested trial record, our review is strictly de novo." Barrett, 797 F.3d at 1213 (quoting United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011)).

         Although the district court concluded that Bowen's § 2255 motion was untimely, the United States now asserts that if "Bowen [is] actually innocent of his § 924(c) offense[, ] . . . . he would overcome the procedural bar of timeliness." Aplee. 28(j) Letter (filed Aug. 27, 2018). Bowen agrees. See Aplt. Supp. Reply Br. at 5 (filed July 26, 2019) ("[I]t appears that the parties agree that, unless the offense of witness retaliation necessarily requires violent physical force, Mr. Bowen is actually innocent, and any time bar is excused.").

         Based on the parties' agreement, we assume without deciding that Bowen's § 2255 motion is timely if he is actually innocent of § 924(c)(1).[2] Cf. Day v. McDonough, 547 U.S. 198, 202 (2006) ("[W]e would count it an abuse of discretion to override [the government's] deliberate waiver of a limitations defense."). We therefore turn to the question of whether retaliating against a witness qualifies as a crime of violence under § 924(c)(3). As discussed below, we conclude that it does not.

         III

         We first conclude that the Supreme Court's ruling in Davis that § 924(c)(3)'s residual clause is void for vagueness is a new constitutional rule that is retroactive on collateral review. Therefore, Bowen cannot be guilty of violating § 924(c)(1) if his witness retaliation convictions qualify as crimes of violence only under § 924(c)(3)'s residual clause.

         A brief discussion of the relevant cases will help frame our analysis. As noted, Johnson held that the ACCA's residual clause was unconstitutionally vague. 135 S.Ct. at 2563. And in Welch, the Court ruled that Johnson created a new, substantive rule and was therefore retroactively applicable to cases on collateral review. 136 S.Ct. at 1265 ("By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering 'the range of conduct or the class of persons that the [Act] punishes.'" (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004))). In Sessions v. Dimaya, the Court held that 18 U.S.C. § 16(b), which has language similar to that of § 924(c)(3)(B), was also void for vagueness. 138 S.Ct. 1204, 1213-16 (2018). The Dimaya plurality relied on Johnson for its holding, stating that "Johnson effectively resolved the case now before [it]," id. at 1213, and that "Section 16's residual clause violates [due process] in just the same way" as did the ACCA's residual clause, id. at 1215. Finally, in Davis, the Court struck down § 924(c)(3)(B) as void for vagueness. 139 S.Ct. at 2336. Davis resolved a circuit split, rejecting the United States' argument and the holding of three circuits that reading § 924(c)(3)(B) to require a conduct-specific- rather than categorical-approach could save that clause from unconstitutionality. Id. at 2325 & n.2, 2332-33. The Court held that the categorical approach applied, and that § 924(c)(3)(B) was unconstitutionally vague. Id. at 2336.

         We now conclude that, in striking down § 924(c)(3)(B) as void for vagueness, Davis created a new constitutional rule.

         "[A]s a general matter, 'new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.'" Welch, 136 S.Ct. at 1264 (quoting Teague v. Lane, 489 U.S. 288, 310 (1989)). For purposes of determining retroactivity, "a case announces a new rule when it breaks new ground or imposes a new obligation" on the government. Teague, 489 U.S. at 301. A rule is new "if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. And a result was not dictated by precedent unless it would have been "apparent to all reasonable jurists." Lambrix, 520 U.S. at 527-528. Even when the Court applies an already existing rule, its decision may create a new rule if it applies the existing rule in a new setting, thereby extending the rule "in a manner that was not dictated by precedent." Stringer v. Black, 503 U.S. 222, 228 (1992).

         Davis created a new rule.

         Davis's legal analysis makes clear that it created a new rule.[3] Importantly, Davis begins the vagueness inquiry for § 924(c)(3)(B) by addressing the threshold determination of whether the categorical approach applies to § 924(c)(3)(B) at all.[4] See Davis, 139 S.Ct. at 2326 ("[Johnson and Dimaya] teach that the imposition of criminal punishment can't be made to depend on a judge's estimation of the degree of risk posed by a crime's imagined 'ordinary case.' But does § 924(c)(3)(B) require that sort of inquiry?" (emphasis added)). Much of Davis is devoted to answering that question by carefully examining the text of the statute, as well as its context and history. See id. at 2327-37.

         First, because "the word 'offense' appears just once in § 942(c)(3)," the Court noted that it should have the same meaning in both the elements and residual clauses. Id. at 2328. "And everyone agree[d] that, in connection with the elements clause, the term 'offense' carries [its] . . . 'generic' meaning." Id. Therefore, the same was true for § 924(c)(3)(B). The Court then explained that, while "dozens of federal statutes . . . use the phrase 'crime of violence' to refer to presently charged conduct," [s]ome of those statutes cross-reference the definition of 'crime of violence' in § 924(c)(3), while others are governed by the virtually identical definition in § 16." Id. at 2329. "[H]old[ing] . . . that § 16(b) requires the categorical approach while § 924(c)(3)(B) requires the case-specific approach would [have] ma[d]e a hash of the federal criminal code." Id. at 2330. Finally, the Court reasoned that "[§] 924(c)(3)(B)'s history provides still further evidence that it carries the same categorical approach command as § 16(b)" because, when § 924(c) was enacted, "Congress didn't provide a separate definition of 'crime of violence" in § 942(c) but relied on § 16's general definition." Id. Because Davis required that the Court resolve the threshold inquiry of whether the categorical approach applied, its resulting constitutional holding was not dictated by Johnson. Cf. Chaidez, 568 U.S. at 348-49 (noting that the "preliminary question" came to the "Court unsettled-so . . . the Court's answer . . . required a new rule").

         In Chaidez, the Supreme Court decided whether Padilla v. Kentucky, 559 U.S. 356 (2010), created a new rule. 568 U.S. at 344. In Padilla, the Court held that the Sixth Amendment "requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea." Id. The Chaidez Court acknowledged that

Padilla would not have created a new rule had it only applied Strickland's general standard to yet another factual situation-that is, had Padilla merely made clear that a lawyer who neglects to inform a client about the risk of deportation is professionally incompetent.
But Padilla did something more. Before deciding if failing to provide such advice "fell below an objective standard of reasonableness," Padilla considered a threshold question: Was advice about deportation "categorically removed" from the scope of the Sixth Amendment right to counsel because it involved only a "collateral consequence" of a conviction, rather than a component of the criminal sentence? 559 U.S. at 366. In other words, prior to asking how the Strickland test applied ("Did this attorney act unreasonably?"), Padilla asked whether the Strickland test applied ("Should we even evaluate if this attorney acted unreasonably?"). And . . . that preliminary question about Strickland's ambit came to the Padilla Court unsettled-so that the Court's answer ("Yes, Strickland governs here") required a new rule.

Id. at 348-49.

         As did Padilla, Davis required the Court to answer a threshold question: Does § 924(c)(3)(B) require "a judge's estimation of the degree of risk posed by a crime's imagined 'ordinary case'"? Davis, 139 S.Ct. at 2326. Because that question "came to the [Davis] Court unsettled," "the Court's answer ("Yes, [the categorical approach applies] here") required a new rule." Chaidez, 568 U.S. at 349; see also In re Hammoud, ___ F.3d ___, 2019 WL 3296800, at *3 (11th Cir. July 23, 2019) ("[T]he rule announced in Davis is also 'new' because it extended Johnson and Dimaya to a new statute and context.").

         We also conclude that Davis's new rule is substantive and therefore retroactively applicable to cases on collateral review.

         Two categories of decisions fall outside Teague's general bar on retroactivity: "[n]ew substantive rules," Schriro, 542 U.S. at 351, and new "watershed rules of criminal procedure," Saffle v. Parks, 494 U.S. 484, 495 (1990) (quotations omitted). A new rule is substantive "if it alters the range of conduct or the class of persons that the law punishes." Schriro, 542 U.S. at 353. "This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish." Id. at 351-52 (citation omitted). In other words, substantive rules "produce a class of persons convicted of conduct the law does not make criminal." Id. at 352.

         Under this framework, the rule announced in Davis is clearly substantive. Davis struck down § 924(c)(3)'s residual clause as void for vagueness, "chang[ing] the substantive reach of [§ 924(c)(3) and] altering 'the range of conduct or the class of persons that [§ 924(c)(3)] punishes.'" Welch, 136 S.Ct. at 1265 (quoting Schriro, 542 U.S. at 353). Before Davis, a person could be convicted for the crime of using a firearm in connection with a crime of violence, even if the predicate crime qualified as a crime of violence only under § 924(c)(3)'s residual clause. After Davis, "the same person engaging in the same conduct is no longer subject to" this conviction. Id. "It follows that [Davis] announced a substantive rule that has retroactive effect in cases on collateral review." Id. at 1268.

         Because § 924(c)(3)'s residual clause is void for vagueness-and because that ruling applies to Bowen's case on collateral review-Bowen cannot be guilty of violating § 924(c)(1) if his witness retaliation convictions qualify as crimes of violence only under § 924(c)(3)(B).

         IV

         We also conclude that Bowen's witness retaliation convictions are not crimes of violence under § 924(c)(3)'s elements clause-§ 924(c)(3)(A).

         A

         As noted, 18 U.S.C. § 924(c)(3) defines the term "crime of violence" 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 ...

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