United States of America v. Richard Glen Mathews

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD GLEN M ATHEWS ,
Defendant-Appellant.
No. 19-56110
D.C. Nos.
3:16-cv-01356-BEN
3:91-cr-00663-BEN-2
OPINION
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted December 8, 2021*
Pasadena, California
Filed June 13, 2022
Before: Paul J. Kelly, Jr.,** Milan D. Smith, Jr., and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Forrest
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

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2 UNITED STATES V. M ATHEWS
SUMMARY***
28 U.S.C. § 2255
Reversing the district court’s denial of Richard
Mathews’s 28 U.S.C. § 2255 motion and remanding with
instructions to vacate his conviction and sentence under
18 U.S.C. § 924(c)(1) for use and carrying an explosive
device during a crime of violence, the panel held that, as the
parties agree, a conviction under 18 U.S.C. § 844(i) is not a
crime of violence under 18 U.S.C. § 924(c)(3).
Applying the categorical approach, the panel explained
that because a person can be convicted under Section 844(i)
for using an explosive to destroy his or her own property,
Section 844(i) criminalizes conduct that falls outside Section
924(c)’s definition of crime of violence definition—an
offense committed against the person or property of another.
The panel wrote that the district court—which relied on
this court’s decision in Mathews’s direct appeal rejecting
Mathews’s argument that his property-damage and firearm
convictions violated the double jeopardy clause “as
punishment for the same conduct”—erred by not applying
the categorical approach, which is required when
determining whether an offense is a crime of violence.
*** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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UNITED STATES V. M ATHEWS 3
COUNSEL
Kara Hartzler, Federal Defenders of San Diego Inc., San
Diego, California, for Defendant-Appellant.
Randy S. Grossman, Chief, Appellate Section, Criminal
Division; Daniel E. Zipp, Assistant United States Attorney;
United States Attorney’s Office, San Diego, California; for
Plaintiff-Appellee.
OPINION
FORREST, Circuit Judge:
Defendant-Appellant Richard Mathews argues that his
conviction and sentence under 18 U.S.C. § 924(c)(1) for
using or carrying an explosive device during a crime of
violence should be vacated. The Government concedes that
Mathews’s conviction under 18 U.S.C. § 844(i) is not a
crime of violence under Section 924(c)(3) after United States
v. Davis, __ U.S. __, 139 S. Ct. 2319 (2019). We reverse the
district court’s denial of Mathews’s 28 U.S.C. § 2255 motion
and remand with instructions to vacate his Section 924(c)
conviction and resentence him accordingly.
I. BACKGROUND
A. Mathews’s Conviction and Sentence
In 1990, the leader of Mathews’s motorcycle gang
kicked him out of the gang. In retaliation, Mathews and an
accomplice placed a “bomb packed with steel balls (to
increase the risk of personal injury)” in the alley beside the
gang leader’s home. United States v. Mathews, 120 F.3d 185,
186 (9th Cir. 1997), as amended (Aug. 6, 1997). A man

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4 UNITED STATES V. M ATHEWS
unaffiliated with either Mathews or his target walked down
the alley collecting cans and picked up the box that had the
bomb in it. Id. The bomb detonated, and the man suffered
serious injuries. Id.
Mathews was convicted of multiple felonies. Relevant
here, he was convicted of maliciously damaging or
destroying property by means of an explosive, in violation
of 18 U.S.C. § 844(i) (the property-damage conviction), and
of using or carrying a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c)(1) (the firearm conviction).
An explosive device is a “firearm” under Section 924(c), and
when a conviction under this statute is based on use of an
explosive device, it carries a 30-year mandatory, consecutive
sentence. 18 U.S.C. § 924(c)(1)(B)(ii). After several
appeals, Mathews was sentenced to 495 months’
imprisonment, 360 months of which were for the firearm
conviction.
B. The Supreme Court’s Johnson and Davis Decisions
Section 924(c)(3) defines a “crime of violence” as any
felony that “(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another,” or a felony “(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 commonly referred to as the “elements” clause, while
subsection B is referred to as the “residual” clause. Davis, __
U.S. at __, 139 S. Ct. at 2324.
In 2015, the Supreme Court struck down a similarly
worded “residual clause” in the Armed Career Criminal Act
as unconstitutionally vague. Johnson v. United States,
576 U.S. 591, 597–98 (2015). Mathews then moved under

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UNITED STATES V. M ATHEWS 5
28 U.S.C. § 2255 to vacate his firearm conviction, arguing
that it rested on the residual clause in Section 924(c)(3)(B).
The district court received briefing from both parties, but it
did not decide the motion. Then, in 2019, the Supreme Court
also struck down Section 924(c)(3)’s residual clause as
unconstitutionally vague. Davis, __ U.S. at __, 139 S. Ct.
at 2336. Mathews raised the Davis decision to the district
court in a supplemental brief.
C. The District Court’s Decision
Two months after the Davis decision, the district court
denied Mathews’s Section 2255 motion to vacate his
sentence, holding that his property-damage conviction was a
crime of violence under Section 924(c)(3). The district court
did not apply the categorical approach to determine whether
the property-damage conviction was a crime of violence but
instead held that “the primary purpose of the categorical
approach is to effectuate the intent of Congress,” and thus it
was “bound” by our 1994 decision in Mathews’s direct
appeal stating that Congress intended for bombing under
28 U.S.C. § 844(i) to be a crime of violence under Section
924(c).
We granted Mathews a certificate of appealability. Case
No. 19-56110, Dkt. No. 5. Before either party submitted
briefing, the Government filed an unopposed motion to
vacate Mathews’s conviction and remand for resentencing.
The Government concedes that, under the categorical
approach, Mathews’s property-damage conviction is not a
crime of violence under Section 924(c)(3)(A)’s elements
clause. We denied the Government’s unopposed motion
“without prejudice to renewing its arguments in the
answering brief” and “express[ed] no opinion as to the
merits of the appeal.” Case No. 19-56110, Dkt. No. 7.

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6 UNITED STATES V. M ATHEWS
II. DISCUSSION
“We review de novo whether a criminal conviction is a
‘crime of violence.’” United States v. Benally, 843 F.3d 350,
353 (9th Cir. 2016). Following Davis, Mathews’s conviction
cannot qualify as a crime of violence under the residual
clause of Section 924(c)(3)(B). Thus, his firearm conviction
stands only if it comes within the elements clause. 18 U.S.C.
§ 924(c)(3)(A). We conclude that it does not.
To determine whether an offense is a crime of violence
under Section 924(c), we apply the “categorical approach.”
United States v. Dominguez, 954 F.3d 1251, 1259 (9th Cir.
2020). “An offense is categorically a crime of violence only
if the least violent form of the offense qualifies as a crime of
violence.” Id. In other words, we must “compare the
elements of the statute forming the basis of the defendant’s
conviction with the elements of the ‘generic’ crime—i.e., the
offense as commonly understood.” Descamps v. United
States, 570 U.S. 254, 257 (2013). The categorical test is
satisfied “only if the statute’s elements are the same as, or
narrower than, those of the generic offense.” Id.
We agree with the parties that Mathews’s property-
damage conviction is not categorically a crime of violence
and, therefore, cannot serve as a predicate crime for his
firearm conviction. Section 924(c) defines a crime of
violence as an offense committed against “the person or
property of another.” 18 U.S.C. § 924(c)(3)(A) (emphasis
added). A person can be convicted under Section 844(i) for
using an explosive to destroy his or her own property. See,
e.g., United States v. White, 771 F.3d 225, 227 (4th Cir.
2014). As such, Section 844(i) criminalizes conduct that falls
outside Section 924(c)’s definition of “crime of violence,”
and there is not a categorical match between the two statutes.

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UNITED STATES V. M ATHEWS 7
No doubt it is strange to classify placing a bomb in an
alleyway for the purpose of causing harm to another person
or their property as not a crime of violence, particularly
where the bomb was picked up by an innocent bystander
who was seriously injured by the detonation. But that is what
the law requires of us in this case. Davis, __ U.S. at __, 139
S. Ct. at 2328; Dominguez, 954 F.3d at 1259.
In holding to the contrary, the district court relied on our
decision in United States v. Mathews, 36 F.3d 821, 823 (9th
Cir.), supplemented, 37 F.3d 1507 (9th Cir. 1994). Mathews
argued in that direct appeal that his property-damage and
firearm convictions violated the double jeopardy clause “as
punishment for the same conduct.” Id. We rejected that
argument, explaining that Congress intended to punish the
firearm provision as a separate offense. Id. In doing so, we
did not apply the categorical approach. The district court
concluded that it was “bound by [our] prior findings about
Congressional intent” such that it “need not apply the
categorical approach” when analyzing whether Mathews’s
property-damage conviction qualified as a crime of violence
under Section 924(c)(3). This was error because courts must
apply the categorical approach when determining whether an
offense is a crime of violence. Davis, __ U.S. at __, 139 S.
Ct. at 2328.
In sum, we now join our sister circuits in holding that a
conviction under Section 844(i) is not a crime of violence for
purposes of Section 924(c)(3). See In re Franklin, 950 F.3d
909, 911 (6th Cir. 2020); United States v. Salas, 889 F.3d
681, 684 (10th Cir. 2018); United States v. Wilder, 834 F.
App’x 782, 784 (4th Cir. 2020).
We REVERSE the district court’s denial of Mathews’s
Section 2255 motion and REMAND with instructions to

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8 UNITED STATES V. M ATHEWS
vacate his Section 924(c) conviction and resentence him
accordingly.

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