Graham v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JOHN ROBERT GRAHAM,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
4:20-CV-04091-KES
REPORT AND RECOMMENDATION
INTRODUCTION
This matter is before the court on the motion of John Robert Graham to
vacate, set aside or modify his sentence pursuant to 28 U.S.C. § 2255. See
Docket No. 1.1 Respondent United States of America (“government”) now
moves to dismiss Mr. Graham’s motion without holding an evidentiary hearing.
See Docket No. 10. Mr. Graham resists the government’s motion. See Docket
No. 16. This matter was referred to this magistrate judge for a recommended
disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014,
standing order of the Honorable Karen E. Schreier, United States
District Judge.
1 In this opinion, the court refers to documents filed in Mr. Graham’s civil
§ 2255 action by their docket numbers in the court’s docket. 	The court refers
to documents filed in Mr. Graham’s underlying criminal case, United States v.
Graham, 4:12-cr-40016 (D.S.D.) by their docket number in that case preceded
by the designation “CR.”
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FACTS
On January 18, 2012, Mr. Graham was indicted and charged with:
count one—burglary involving controlled substances, in violation of 18 U.S.C.
§ 2118(b)(2) and (c)(1); count two—possession of a firearm in relation to a crime
of violence, in violation of 18 U.S.C. § 924(c); and count three—burglary
involving controlled substances, in violation of 18 U.S.C. § 2118 (b)(2). 	See CR
Docket No. 1. 	Counts one and two were alleged to have occurred in Lennox,
South Dakota, on December 23, 2011, and count three was alleged to have
occurred in Dell Rapids, South Dakota, on November 20, 2011. 	Id. 	The
associated “crime of violence” alleged in the indictment in support of count two,
the firearm count, was the commission of the federal crime of burglary
involving controlled substances as alleged in count one. 	Id.
On August 14, 2012, the parties filed a plea agreement whereby
Mr. Graham agreed to plead guilty to counts one and two in the indictment and
the government agreed to dismiss count three. 	See CR Docket No. 19 at p. 2,
¶ C.2 The burglary crime contained in count one carried a maximum term of
imprisonment of 25 years. 	Id. 	The firearms offense charged in count two
carried a mandatory minimum sentence of imprisonment of 10 years and a
maximum term of imprisonment of up to life. 	Id. 	The sentence imposed for
count two was required to be served consecutive to whatever sentence was
imposed for count one. 	Id.
2 An amended plea agreement was filed two days later, but the amendment did
not change the terms recited in the body of this opinion. 	Compare CR Docket
No. 24 at p. 2, ¶ C, with CR Docket No. 19 at p. 2, ¶ C.
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The plea was supported by a statement of factual basis, which provided
in pertinent part as follows:
On December 23, 2011, at Lennox, South Dakota, defendant
John Robert Graham attempted to enter, without permission, a
business premises that contained a Lewis Drug Pharmacy, a
business registered with the Drug Enforcement Administration.
Graham did so by entering a structure that contained multiple
businesses and mistakenly entered a neighboring business instead
of the Lewis Drug Pharmacy. 	The intent of the attempted entry
was to steal controlled substances. 	To further his burglary
attempt he used various facilities of interstate commerce, including
automobiles, the interstate highway system, a cellular telephone,
and the internet to locate the pharmacy. 	In the course of
committing the offense and attempting to elude law enforcement,
Defendant discharged a firearm into a window to allow his exit
through an otherwise locked exit out of the premises.
Subsequently, he brandished his weapon in the direction of
a pursuing law enforcement officer. 	In his further attempt to
escape capture, Graham stole a vehicle parked nearby and led
pursuing officers on a high-speed chase resulting in the lives of
others being placed in jeopardy.
See CR Docket No. 21.
Mr. Graham was sentenced on November 5, 2012. 	See CR Docket No.
32. 	A sentence of imprisonment of 27 months was imposed for count one and
the mandatory minimum sentence of 10 years (120 months) was imposed for
count two, to run consecutive to the sentence for count one. 	Id. at p. 2. 	Thus,
Mr. Graham’s combined sentence was for 147 months’ imprisonment. 	Id.
No direct appeal was filed. 	On June 24, 2019, the Supreme Court
decided United States v. Davis, ___ U.S. ___, 139 S. Ct. 2319 (2019), on which
Mr. Graham bases his § 2255 motion. 	See Docket No. 1. 	He argues his
conviction on count two should be invalidated under the rule announced in
Davis. 	Mr. Graham filed the instant § 2255 motion on June 15, 2020. 	Id.
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Both parties agree that the rule announced in Davis applies retroactively to
cases on collateral appeal and that Mr. Graham’s motion is timely.
Additionally, the parties agree that Mr. Graham’s claim is a cognizable one
under § 2255 and that it presents a question of law. 	Accordingly, there are no
procedural impediments to consideration of the merits of Mr. Graham’s claim.
DISCUSSION
A. 	Scope and Procedure Applicable to a § 2255 Motion
Section 2255 of Title 28 of the United States Code was enacted to
supersede habeas corpus practice for federal prisoners. 	Davis v. United States,
417 U.S. 333, 343-44 (1974). 	Section “2255 was intended to afford federal
prisoners a remedy identical in scope to federal habeas corpus.” 	Id. at 343.
Prior to the enactment of § 2255, habeas claims had to be brought in the
district where the prisoner was confined, resulting in overburdening those
districts where federal correctional institutions were located and presented
logistical issues because the record in the underlying criminal case was often
in a distant location. 	United States v. Hayman, 342 U.S. 205, 212-16 (1952).
The enactment of § 2255 resolved these issues by requiring that the motion be
filed in the sentencing court. 	Id.
The scope of a § 2255 motion is seemingly broader than the scope of a
habeas petition, the latter of which is typically limited to allegations of a
constitutional dimension. 	Section 2255 allows a federal prisoner to “vacate, set
aside or correct” a federal sentence on the ground that “the sentence was
imposed in violation of the Constitution or laws of the United States, or that
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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.” 	See 28 U.S.C. § 2255(a) (2018).
Where the allegation for relief is not based on a violation of a
Constitutional or federal statutory right or an assertion that the court was
without jurisdiction, the Supreme Court has read a “fundamentality”
requirement into § 2255—relief is available for only those errors which
constitute a “fundamental defect which inherently results in a complete
miscarriage of justice” or “an omission inconsistent with the rudimentary
demands of fair procedure.” 	Hill v. United States, 368 U.S. 424, 428 (1962);
see Peguero v. United States, 526 U.S. 23, 27-30 (1999).
Generally, petitioners are precluded from asserting claims pursuant to
§ 2255 that they failed to raise on direct appeal. 	United States v. Frady, 456
U.S. 152, 167-68 (1982); McNeal v. United States, 249 F.3d 747, 749 (8th Cir.
2001). 	When a § 2255 petitioner asserts a claim that is procedurally defaulted
because it was not raised on direct appeal, the claim can only proceed after the
petitioner has shown either: (1) actual innocence or (2) that the procedural
default should be excused because there was both cause for the default and
actual prejudice to the petitioner. 	Bousley v. United States, 523 U.S. 614,
621-22 (1998); McNeal, 249 F.3d at 749. 	Therefore, barring a claim of actual
innocence, a petitioner must show both cause for why he failed to raise an
issue on direct appeal as well as actual prejudice caused by the alleged errors.
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Where a new rule of constitutional law is announced that is made
retroactive to cases on collateral review, however, procedural default does not
apply to prevent a movant from raising a claim based on the new rule of law.
See 28 U.S.C. § 2255(f)(3) (2018). 	That is the situation Mr. Graham finds
himself in, as the government agrees.
B. 	Standard Applicable to Rule 12(b)(6) Motions
The government’s motion to dismiss Mr. Graham’s § 2255 motion is
based on Federal Rule of Civil Procedure 12(b)(6). 	See Docket No. 10.3 The
Federal Rules of Civil Procedure are applicable to § 2255 habeas actions so
long as the procedural rules do not conflict with the habeas statutes or the
Rules Governing Section 2255 Cases in the United States District Courts
(“Governing Rules”). 	See Governing Rule 12. 	Federal Rule of Civil Procedure
12(b)(6) is not inconsistent with the Governing Rules. 	Compare Governing
Rules 4 & 5 (allowing respondent to respond to petitioner’s habeas petition with
a motion), with FED. R. CIV. P. 12(b)(6) (same); see also Ebert v. Clarke, 320 F.
Supp. 2d 902, 909-10 (D. Neb. 2004) (holding that FED. R. CIV . P. 12(b)(6)
applies in habeas proceedings).
Rule 12(b)(6) allows dismissal of a habeas petition if the petitioner has
failed to state a claim upon which relief can be granted. 	See F ED. R. CIV. P.
12(b)(6). 	Here, the government does not take issue with Mr. Graham’s factual
statement of his claim. 	Instead, a pure question of law is raised. 	Even
3 The government also initially invoked Rule 12(h)(3) but retracted that
invocation in its reply brief. 	See Docket No. 19 at pp. 11-12. 	Accordingly, the
court does not discuss Rule 12(h)(3) as a ground for the government’s motion.
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assuming all the facts alleged by Mr. Graham in his petition are true, is the
government entitled to judgment as a matter of law? 	Put another way, if all the
facts alleged by Mr. Graham are true, has he demonstrated a claim upon which
relief may be granted? 	Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 	In
analyzing Mr. Graham’s petition, the court sets aside conclusory statements
and legal conclusions. 	Id. at 678-79.
Rule 12(b)(6) requires the court to evaluate the sufficiency of a
petitioner’s pleading of a claim by examining his or her petition. 	See FED. R.
CIV. P. 12(b)(6); Iqbal, 556 U.S. at 679. 	But courts evaluating a Rule 12(b)(6)
motion are not strictly limited to evaluating the petition alone. 	Dittmer Props.,
L.P. v. F.D.I.C., 708 F.3d 1011, 1021 (8th Cir. 2013). 	They may consider
“matters incorporated by reference or integral to the claim, items subject to
judicial notice, matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint whose authenticity is
unquestioned.” 	Id. (quoting Miller v. Redwood Toxicology Lab., Inc., 688 F.3d
928, 931 n.3 (8th Cir. 2012) (quoting 5B Charles A. Wright & Arthur R. Miller,
Fed. Practice & Procedure § 1357 (3d ed. 2004))).
C. 	From Johnson to Davis
On June 26, 2015, the Supreme Court decided Johnson v. United States,
576 U.S. 591 (2015). 	That decision interpreted the “residual clause” of the
Armed Career Criminal Act (“ACCA”) and held the clause to be
unconstitutionally vague under the Due Process clause of the Fifth
Amendment. 	Id. at 606. 	Later, the Court would hold that its ruling in
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Johnson was retroactive to cases on collateral review. 	Welch v. United States,
___ U.S. ___, 136 S. Ct. 1257, 1268 (2016).
The ACCA provides a mandatory minimum sentence of 15 years’
imprisonment for a defendant who violates 18 U.S.C. § 922(g)4 and has three
prior convictions for a “violent felony” or a “serious drug offense.” 	See 18
U.S.C. § 924(e)(1) (2018). 	The ACCA defined “violent felony” as an act
punishable by more than one year imprisonment that threatens “use of
physical force against the person of another,” “is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 	See 18 U.S.C.
§ 924(e)(2)(B) (2018). 	The last part of this definition—“otherwise involves
conduct . . .”—is known as the residual clause.
The Johnson decision held the residual clause of the ACCA was
unconstitutionally vague. 	Johnson, 576 U.S. at 597-98. 	The Court specifically
noted that its decision did not affect the remainder of the ACCA definition of
“violent felony”—that is, the four enumerated offenses or the remaining parts of
the definition aside from the residual clause. 	Id. at 606.
The same or similar wording of the ACCA residual clause is repeated
multiple times in other provisions of law. 	Predictably, then, the Johnson
4 Section 922(g) makes it a crime for certain persons to possess a firearm or
ammunition that has been shipped in interstate or foreign commerce. 	See 18
U.S.C. § 922(g) (2018). 	Some of the persons prohibited from possessing
firearms are those with a previous felony conviction or misdemeanor domestic
violence conviction, an illegal alien, a fugitive, or a person addicted to
controlled substances. 	Id.
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decision has spawned a great deal of litigation involving these other provisions
of law.
In the immigration context, the Court held the federal criminal code’s
definition of “crime of violence,” which was incorporated by reference into
certain immigration statutes and included the same language as the ACCA
residual clause language was also void for vagueness. 	Sessions v. Dimaya, ___
U.S. ___, 138 S. Ct. 1204, 1210 (2018).
However, the Court held that the same language found in the United
States Sentencing Guidelines (“USSG”) (in the residual clause found in USSG
§ 4B1.2(a)(2), to which the commentary to USSG § 2K2.1, cmt. 1 refers), was
not rendered void by the holding of Johnson. 	Beckles v. United States, ___ U.S.
___, 137 S. Ct. 886, 890 (2017). 	The Court held that the Due Process void-for-
vagueness analysis only applies to laws that define crimes and that “fix”
sentences. 	Id. at 892. 	Because the USSG are advisory only, the Court held
they do not “fix” sentences. 	Id. 	Rather, they simply guide a district court's
discretion in determining sentences. 	Therefore, no void-for-vagueness analysis
is applicable to the USSG. 	Id. at 892-95. 	For this reason, Johnson did not
render the USSG provisions using the same exact language unconstitutional.
Id. at 895.
In United States v. Davis, ___ U.S. ___, 139 S. Ct. 2319, 2323 (2019), two
defendants were convicted of several federal crimes after a series of gas station
robberies. 	One of the crimes they stood convicted of was 18 U.S.C.
§ 924(c)(1)(A): 	using, carrying or possessing a firearm “in furtherance of” any
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“crime of violence.” 	Id. at 2324 (quoting § 924(c)(1)(A)). 	The statute contains
its own definition of “crime of violence” in two subparts, the first known as the
“elements” clause and the second known as the “residual” clause. 	Id. 	The
language of the § 924(c) residual clause was identical to the language
construed in Johnson. 	Id.
As the Davis Court explained, a conviction under § 924(c) carries with it
a mandatory minimum sentence of 5 years’ imprisonment, consecutive to the
sentence imposed for the “crime of violence” on which the § 924(c) conviction is
based. 	Id. 	That mandatory minimum sentence goes up to 7 years if the
defendant brandished the firearm and 10 years if the defendant discharged the
firearm. 	Id. 	The Court held that the residual clause definition of “crime of
violence” under § 924(c) was void for vagueness for the same reason the same
language was held invalid in Johnson. 	Id. at 2336.
B. 	Applying Davis to Mr. Graham’s Case
The conviction and sentence attacked by Mr. Graham in his § 2255
motion is his conviction under 18 U.S.C. § 924(c)(1)(A) for which he received a
mandatory minimum consecutive sentence of 10 years. 	Section 924(c) states
in pertinent part as follows:
(1) 	(A) . . . any person who, during and in relation to any crime
of violence or drug trafficking crime . . . for which the person
may be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment
provided for such crime of violence . . .
* * *
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(ii) if the firearm is brandished, be sentenced to a term
of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term
of imprisonment of not less than 10 years.
* * *
(D) 	(ii) no term of imprisonment imposed on a person
under this subsection shall run concurrently with any
other term of imprisonment imposed on the person,
including any term of imprisonment imposed for the
crime of violence . . . during which the firearm was
used, carried, or possessed.
* * *
(3) 	For purposes of this subsection [subsection 924(c)] the term
“crime of violence” means 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 course of committing the offense.
See 18 U.S.C. § 924(c)(1)(A)(ii) and (iii), (D)(ii), and (3)(A) and (B) (2018).
Subparagraph (c)(3)(A) immediately above is the “elements” definition of “crime
of violence,” also sometimes called the “force” clause. 	Subparagraph (c)(3)(B),
also immediately above, is the “residual” definition of “crime of violence.” 	If
Mr. Graham’s § 924(c)(1)(A) conviction rests on the elements clause of
§ 924(c)(3)(A), the validity of his conviction is not called into question by Davis.
If his conviction rests on the residual clause of § 924(c)(3)(B), Davis would
require that conviction be vacated.
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The court observes that the crime Mr. Graham pleaded guilty to must
have been a violation of § 924(c)(1)(A)(iii). 	This is because Mr. Graham’s plea
agreement recited that the crime to which he was pleading guilty carried with it
a mandatory minimum sentence of 10 years’ imprisonment. 	See CR Docket
No. 19 at p. 2, ¶ C. 	The presentence investigative report (“PSR”) also recites the
same mandatory minimum penalty. 	See PSR at p. 1, p. 16 at ¶ 83. 	The only
instance in which that penalty would be applicable is if Mr. Graham discharged
a firearm in connection with the burglary. 	18 U.S.C. § 924(c)(1)(A)(iii) (2018).
Therefore, the court takes it as a given that Mr. Graham pleaded guilty to this
provision.
The predicate crime upon which Mr. Graham’s § 924(c)(1)(A) conviction
depends is count one of the indictment—burglary involving a controlled
substance under 18 U.S.C. § 2118. 	The government cited two provisions of
§ 2118 in Mr. Graham’s indictment on count one—subsections (b)(2) and (c)(1).
Those provisions read in pertinent part as follows:
(b) Whoever, without authority, enters or attempts to enter, or
remains in, the business premises or property of a person
registered with the Drug Enforcement Administration [“DEA”] . . .
with the intent to steal any . . . controlled substance shall . . . be
. . . imprisoned not more than twenty years . . . if . . . (2) the
person who engaged in such entry or attempted entry or who
remained in such premises or property traveled in interstate or
foreign commerce or used any facility in interstate or foreign
commerce to facilitate such entry or attempt or to facilitate
remaining in such premises or property . . . .
(c)(1) Whoever in committing any offense under subsection (a) or (b)
assaults any person, or puts in jeopardy the life of any person, by
the use of a dangerous weapon or device shall be fined under this
title and imprisoned for not more than twenty-five years.
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See 18 U.S.C. § 2118(b)(2) and (c)(1) (2018). 	Thus, if one merely burgles or
attempts to burgle a property registered with the DEA, the maximum term of
imprisonment is 20 years. 	Id. at (b)(2). 	But if one assaults someone or puts in
jeopardy the life of any person by using a dangerous weapon or device while
committing the burglary, the penalty increases to a maximum of 25 years’
imprisonment. 	Id. at (c)(1).
Here, Mr. Graham pleaded guilty, he did not avail himself of a jury or
other trial. 	His plea agreement, signed by all parties, indicated a maximum
term of imprisonment on the burglary count of 25 years’ imprisonment. 	See
CR Docket No. 19 at p. 2, ¶ C. 	Therefore, it is evident that, although the
indictment references both subsections (b)(2) and (c)(1) of § 2118, and although
the factual basis supports a conviction under both subparts, Mr. Graham
pleaded guilty at least to a violation of subsection (c)(1). 	Id. 	Mr. Graham’s
presentence investigation report (“PSR”) is in accord that the maximum term of
imprisonment for count one was 25 years’ imprisonment. 	See PSR at p. 1,
p. 16 at ¶ 83. 	This would only be true if Mr. Graham’s conviction was for a
violation of at least 18 U.S.C. § 2118(c)(1).
This supposition is borne out by the factual basis statement filed in
support of the plea agreement. 	That document recites that, during the
commission of the burglary alleged in count one, Mr. Graham both discharged
his firearm and brandished his firearm. 	See CR Docket No. 21. 	These
allegations would be unnecessary to establish a factual basis for a violation
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under § 2118(b)(2). 	They would be necessary to support a violation of
§ 2118(c)(1), however.
The question under Davis then, in Mr. Graham’s case, is whether a
conviction under § 2118(c)(1) constitutes a “crime of violence” under the
elements clause of § 924(c)(3)(A), in which case his conviction is not
implicated by Davis, or whether his conviction is a “crime of violence”
only under the residual clause of § 924(c)(3)(B), in which case Davis is
squarely implicated. 	That question in turn is answered by determining
whether the elements of the crime of burglary involving a controlled
substance under § 2118(c)(1) require proof that Mr. Graham used,
attempted to use, or threatened the use of physical force against the
person or property of another. 	See 18 U.S.C. § 924(c)(3)(A) (2018).
Because it is clear that Mr. Graham’s § 924(c) conviction rests at least in
part on a violation of § 2118(c)(1), the court does not address whether a
violation of § 2118(b)(2) standing alone would be a sufficient predicate
crime to support a prosecution under the elements clause of
§ 924(c)(3)(A).
Importantly, the question whether a violation of § 2118(c)(1) can
satisfy the elements clause of § 924(c)(3)(A) is answered in the abstract—
or “categorically.” 	Davis 139 S. Ct. at 2326-32 (explaining in detail why
the categorical approach, not a case-specific approach, must be applied
to determine the meaning of “crime of violence” under § 924(c)). 	In other
words, the proper inquiry is whether every conviction under § 2118(c)(1)
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requires the government to prove as an element that the defendant used,
attempted to use, or threatened to use physical force against the person
or property of another. 	Id. 	See also United States v. Ross, 969 F.3d 829,
837 (8th Cir. 2020). 	The question is not whether Mr. Graham in fact did
so under the facts of his conviction. 	Id. 	Under the facts of Mr. Graham’s
conviction, he clearly did use force by discharging his firearm while the
police officer was on the other side of the glass bank door and by
pointing his gun at the policeman later while the policeman was
pursuing him. 	See PSR at p. 5, ¶¶ 12-13.
The government argues this court should apply a “modified
categorical approach” to determine whether a violation of § 2118(c)(1)
requires use of force. 	Applying the modified categorical approach would
allow the court to look to certain limited facts of Mr. Graham’s
underlying criminal case. 	Mathis v. United States, ___ U.S. ___, 136
S. Ct. 2243, 2248-50 (2016). 	To justify application of the modified
categorical approach, § 2118(c)(1) must set forth alternative elements to
separate crimes and not just different means to commit one crime. 	A
statute setting forth several separate crimes is “divisible” and allows the
courts to “peek” at a defendant’s underlying documents to see which
crime he committed. 	Id. 	A statute that sets forth a single crime but
states alternative means of committing that one crime requires courts to
examine the statute in the abstract without reference to the facts of the
defendant’s case. 	Id.
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In service of its modified categorical approach argument, the
government asserts that § 2118(c)(1) describes two separate crimes. 	The
language, repeated here for reference, is “assaults any person, or puts in
jeopardy the life of any person, by the use of a dangerous weapon.” 	The
government argues this language creates two separate crimes: 	one is
committed by assaulting any person, the second is committed by putting
in jeopardy the life of any person by the use of a dangerous weapon. 	In
the government’s view, the clause “by the use of a dangerous weapon”
modifies only the immediately preceding phrase “putting in jeopardy the
life of any person” and does not modify the earlier phrase “committed by
assaulting any person.” 	The court disagrees.
The government cites no case interpreting § 2118(c)(1) this way.
The court finds the most natural reading of the statute is to interpret the
clause “by the use of a dangerous weapon” as modifying both preceding
phrases. 	In other words, the crime described under § 2118(c)(1) can be
committed by assaulting any person by the use of a dangerous weapon or
by putting any person’s life in jeopardy by the use of a dangerous
weapon. 	Thus read, § 2118(c)(1) clearly describes different means of
committing one crime. 	It does not describe two separate crimes in the
alternative.
Prosecutions under § 2118(c)(1) appear to be relatively rare and,
hence, there is an absence of case law interpreting it. 	However,
violations of the federal bank robbery statute are much more common
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and there is definitive case law. 	As with the controlled substance
burglary statute, bank robbery in its simplest form is described in 18
U.S.C. § 2113(a). 	Also, in similar fashion, an enhanced penalty is
described in subparagraph (d) in language identical to that found in
§ 2118(c)(1). 	See 18 U.S.C. § 2113(d) (2018). 	The bank robbery
enhancement reads in pertinent part: 	“Whoever in committing, or
attempting to commit [bank robbery] assaults any person, or puts in
jeopardy the life of any person by the use of a dangerous weapon or
device” shall receive an increased penalty. 	Id. 	The Supreme Court and
the Eighth Circuit have both interpreted this bank robbery provision to
require the use of a dangerous weapon both as to the assault clause and
as to the puts-in-jeopardy clause. 	See Simpson v. United States, 435
U.S. 6, 11 n.6 (1978), overruled on other grounds by statute as
recognized in United States v. Gonzales, 520 U.S. 1, 10 (1997); United
States v. Cobb, 558 F.2d 486, 489 (8th Cir. 1977) (holding that proof of
use of a dangerous weapon was the crucial element upon which a
conviction under § 2113(d) must be bottomed).
This interpretation is supported by the meaning of the word
“assault.” 	One of the meanings of the term “assault,” a definition clearly
indicated in the statute, is to point a firearm at another person. 	Thus,
§ 2118(c)(1) is violated if a defendant, using a dangerous weapon or
device, assaults another person (by pointing the weapon or device at
them) or otherwise puts any person’s life in jeopardy by using a
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dangerous weapon or device. 	Thus, the statute delineates one crime
(using a dangerous weapon or device in committing a controlled
substance burglary), but two means of committing the crime: 	one, by
assaulting a person with the dangerous weapon or device or, two, by
otherwise putting a person’s life in jeopardy with that dangerous weapon
or device.
The court rejects the government’s invitation to apply a modified
categorical approach and applies instead the categorical approach. 	This
is, in fact, what the Davis Court instructed lower courts to do when
applying a Johnson analysis to § 924(c). 	Davis, 139 S. Ct. at 2326-32.
See also Mathis, 136 S. Ct. at 2248-50 (categorical approach applies
where a statute defines one crime with multiple alternative means of
committing that crime).
Because the court has concluded that Mr. Graham’s conviction rests on
a violation of at least § 2118(c)(1), and that such a conviction must include
proof that a defendant used a dangerous weapon or device, the question
becomes, under § 924(c)(3)(A), does the use of a dangerous weapon or device in
the commission of a burglary (i.e., as an element of the crime) constitute a
crime which has as an element “the use, attempted use, or threatened use of
physical force against the person or property of another”?
The Eighth Circuit, post-Davis, found that a conviction for robbery
involving controlled substances under § 2118(a) constitutes a “crime of
violence” under the elements clause of § 924(c)(3)(A). 	Kidd v. United States,
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929 F.3d 578, 581 (8th Cir. 2019). 	Because a conviction under subsection (a)
of § 2118 does not require use of a dangerous weapon, and conviction under
subsection (c)(1) does require the use of a dangerous weapon, it seems a solid
prediction that the Eighth Circuit, if presented with the question, would also
find the crime of aggravated burglary involving controlled substances also
satisfies force requirement of the elements clause of § 924(c)(3)(A).
A district court from the Northern District of Alabama has interpreted
§ 2118(c)(1) in light of Davis and concluded that aggravated burglary involving
controlled substances is a “crime of violence” under the elements clause of
§ 924(c)(3)(A). 	Love v. United States, No. 5:17-CV-08008-RDP, 2020 WL
1235546, at *2-3 (N.D. Ala. Mar. 9, 2020). 	The Love court concluded that
assaulting someone or putting them in jeopardy with a dangerous weapon or
device necessarily involves the use, attempted use, or threatened use of force.
Id.
The Fifth Circuit found, post-Davis, that a conviction under the
aggravated bank robbery statute, § 2113(d), which contains language identical
to § 2118(c)(1), constitutes a “crime of violence” under the elements clause of
§ 924(c)(3)(A). 	United States v. Smith, 957 F.3d 590, 593-94 (5th Cir. 2020).
See also Stamps v. United States, 812 F. App’x 871, 873 (9th Cir. May 1, 2020)
(conviction for aggravated bank robbery under § 2113(d) constitutes a “crime of
violence” under the elements clause of § 924(c)(3)(A)). 	Cf. United States v.
Bryant, 949 F.3d 168, 178-80 (4th Cir. 2020) (interpreting an aggravated mail
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robbery statute with similar wording to § 2118(c)(1) to constitute a “crime of
violence” under the elements clause of § 924(c)(3)(A)).
Based on the above authority, this court concludes that the
elements of a violation of aggravated burglary involving controlled
substances under § 2118(c)(1) satisfies the definition of “crime of
violence” under the elements clause of § 924(c)(3)(A). 	Section 2118(c)(1)
requires proof that a defendant used a dangerous weapon or device to
either assault a person or to put their life in jeopardy. 	The court agrees
with the Love court that this element of proof necessarily involves the
use, attempted use, or threatened use of force.
The parties discuss in their briefs whether Mr. Graham’s recklessly
leading police on a high-speed chase is sufficient to satisfy the
requirement of § 2118(c)(1). 	As discussed, § 2118(c)(1) requires proof
that the defendant used a dangerous weapon or device. 	Two cases are
cited in support of the proposition that a motor vehicle is a dangerous
weapon.
In United States v. Mills, 1 F.3d 414, 419-21 (6th Cir. 1993), the
court held the defendant’s immediate flight from the scene of the
burglary was part of the offense under § 2118(b)(2) because he crossed
state lines in his flight, a fact not occurring in Mr. Graham’s case. 	The
court also held that the defendant’s collision with a police officer’s vehicle
met the “put in jeopardy” element of § 2118(c)(1) because the defendant
“knowingly [did] an act which expose[d] [a] person to a risk of death.” 	Id.
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The court agrees when a defendant knowingly uses an automobile in a
way that poses a risk of death—as in colliding with a policeman’s car—
that this can satisfy the element of using a dangerous weapon or device
to put a person’s life in jeopardy. 	The definition of the mens rea
requirement contained in the Mills opinion clearly satisfies the use of
force requirement of § 924(c).
The other case cited is United States v. Yates, 304 F.3d 818 (8th
Cir. 2002). 	That case involved a prosecution for assault of a federal
officer and involved a defendant using his motor vehicle to attempt to
ram the vehicle driven by United States Marshals. 	Id. at 819. 	There is
little question that a defendant’s use of a motor vehicle in this way
constitutes an attempted use of force within the meaning of § 924(c).
Mr. Graham, relying on United States v. Schneider, 905 F.3d 1088
(8th Cir. 2018), argues that § 2118(c)(1) is overbroad because it can be
satisfied by mere reckless driving. 	But a more recent Eighth Circuit case
clarifies that, although recklessness is a sufficient mens rea for § 924(c),
“unadorned reckless driving causing injury” is not sufficient. 	Ross, 969
F.3d at 839. 	In the Ross case, the crime of violence at issue was
kidnapping resulting in death, so it was not “unadorned reckless driving”
and the court held the Schneider rule had no application. 	Id. 	Similarly
here, the crime of violence under contemplation is not “unadorned
reckless driving,” but rather reckless driving in connection with a
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controlled substances burglary. 	The court concludes the Schneider rule
has been limited by the Eighth Circuit so that it is inapplicable here.
In conclusion, the court agrees that a prosecution under
§ 2118(c)(1) could be premised on the use of an automobile as a
dangerous weapon or device. 	However, the court finds the mens rea
required for such a prosecution would require the government to show
that the defendant 	“knowingly [did] an act which expose[d] [a] person to
a risk of death.” 	Mills, 1 F.3d at 420. 	Doing so satisfies the elements
clause of § 924(c)(3)(A). 	Id.
Mr. Graham also argues that § 2118(c)(1) is broader than the
elements clause of § 924(c)(3)(A) because the former requires proof of
endangerment of “any person,” which could include the defendant
himself, while § 924(c) requires use of force against “another person,” i.e.,
not the defendant. 	Thus, Mr. Graham argues § 2118(c)(1) is overbroad
because he could be prosecuted for endangering himself under that
statute while § 924(c) is applicable only if some third party is
endangered.
First, the court notes that Mr. Graham has not cited to any case
anywhere involving a prosecution of a defendant under the controlled
substances burglary statute—or the bank robbery statute containing the
same language—where the only body who was endangered by the
defendants’ actions was the defendant himself. 	Mr. Graham’s citation to
Portee v. United States, 941 F.3d 263 (7th Cir. 2019), is inapposite. 	That
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case examined a state statute which is dissimilar to § 2118(c)(1). 	Id. at
265. 	The court examined a number of hypothetical prosecutions under
the statute, but not one of those hypotheticals involved the defendant
potentially endangering only himself. 	Id. at 267-68.
In attempting to demonstrate that § 2118(c)(1) is broader than
§ 924(c)(3)(A), Mr. Graham is required to show a realistic probability that
the government would prosecute conduct suggested in a hypothetical.
Mowlana v. Lynch, 803 F.3d 923, 925 (8th Cir. 2015). 	Fanciful
hypotheticals or theoretical possibilities will not suffice to demonstrate
under the categorical approach that a statute is overbroad. 	Id. 	Here, the
court finds Mr. Graham’s suggestion that § 2118(c)(1) could be satisfied if
only he were endangered is too fanciful and theoretical to bear the
burden of demonstrating overbreadth under the categorical approach. 	A
natural reading of the controlled substances burglary statute, like the
natural reading of the kidnapping resulting in death statute in Ross,
leads to the conclusion that the peril of bodily injury required by
§ 2118(c)(1) must have a causal nexus with the burglary itself. 	Ross, 969
F.3d at 838. 	If the defendant committed a burglary of a pharmacy and
only endangered his own life, he would have to be prosecuted if at all
under § 2118(b)(2), not under § 2118(c)(1).
The court backs away from the trees here and reminds the reader of the
forest. 	Mr. Graham’s claim rests on an assertion that § 924(c) is
unconstitutional, not that § 2118 is unconstitutional. 	One examines § 2118 as
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the predicate crime only to find if there is any set of facts under which a
defendant could be prosecuted that would not involve use of force.
But Mr. Graham’s prosecution under § 924(c) requires a showing that he
used, possessed or carried a firearm in connection with the violation of
§ 2118(c)(1). 	Therefore, as a matter of course, every prosecution of any
defendant under § 924(c) for using a firearm in connection with a controlled
substance burglary under § 2118(c)(1) will involve the use of a firearm. 	In
addition, the mere presence of a firearm is insufficient to support a violation of
§ 924(c); instead, the government is required to prove that there is a nexus
between the firearm and the burglary involving controlled substances. 	United
States v. Close, 518 F.3d 617, 619 (8th Cir. 2008) (prosecution under
§ 924(c)(1)(A) requires a showing of a nexus between the firearm and the
predicate crime).
Even ignoring the facts of Mr. Graham’s case, even applying a categorical
lens to both § 924(c) and § 2118(c)(1), every such prosecution of every such
defendant will necessarily involve a firearm that has some nexus to the
burglary. 	The court has little trouble reaching the conclusion that the use of a
firearm that constitutes an assault or that otherwise jeopardizes someone’s life
during a controlled substances burglary constitutes the use, threatened use, or
attempted use of force.
In this way, prosecutions under § 924(c) differ from prosecutions under
the ACCA. 	Under the ACCA, the predicate crimes being analyzed under the
categorical approach almost never arise out of the same facts, transaction or
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occurrence as the ACCA prosecution. 	Under § 924(c), the prosecution for
violation of that statute will almost always be predicated on a violent or drug
trafficking crime that arises out of the same facts, transaction and occurrence.
So, every prosecution for violation of § 924(c) where the predicate crime is
burglary involving controlled substances will involve use of a firearm that has a
nexus with the burglary. 	Although use of a vehicle or any other dangerous
weapon would support a violation of § 2118(c)(1), it would not trigger the
application of § 924(c). 	The use, possession, or carrying of a firearm in
connection with the burglary is a fact that will always be present when a
defendant is charged with violating § 924(c) by virtue of using a firearm in
connection with a violation of § 2118(c)(1).
The court’s observation immediately above is just that: 	an observation
about an obvious fact involving § 924(c) prosecutions. 	The forest-for-the-trees
analysis plays no part in the court’s overall conclusion that Mr. Graham has
failed to state a claim. 	Rather, that conclusion is based on the discussion of
the statutes and caselaw preceding this observation.
The court concludes Mr. Graham’s § 924(c)(1)(A) conviction is not called
into question by Davis. 	It follows, then, that Mr. Graham’s § 2255 motion
should be denied.
CONCLUSION
Based on the foregoing facts, law, and analysis, this magistrate judge
respectfully recommends granting the government’s motion to dismiss [Docket
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No. 10] and dismissing Mr. Graham’s § 2255 motion without holding an
evidentiary hearing.
NOTICE TO PARTIES
The 	parties 	have 	fourteen 	(14) 	days 	after 	service 	of 	this 	report 	and
recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. 	Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
district court. 	Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED December 11, 2020.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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