USA v. James et al

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Case 1:07-cr-00139-RJA-HBS Document153_ Filed 01/08/20 Page 1 of 20

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

GARY N. JAMES, Jr.,
DECISION AND ORDER
Movant, Civil Case
No. 1:16-cv-00477-MAT

-vs-
UNITED STATES OF AMERICA, Criminal Case
No. 1:07-cr-00139-MAT
Respondent.
I. Introduction

Represented by counsel, Gary N. James, Jr. (“James”) has filed
a motion to set aside or correct his sentence under 28 U.S.C. §

2255 (“§ 2255”) pursuant to Johnson v. United States, 135 S. Ct.

2551 (2015), and a supplemental §$ 2255 motion pursuant to United

States v. Davis, 139 S. Ct. 2319 (2019).! For the reasons discussed

below, James’s § 2255 motion and supplemental § 2255 motion are
denied.
II. Factual Background and Procedural History

In an Indictment returned on June 20, 2007, James was charged,
along with co-defendants Jermaine Ellison (“Ellison”) and Alphonso
Moody (“Moody”), of violating a number of federal criminal statutes

in connection with their armed robbery of a person cooperating with

In Johnson, the Supreme Court held that the residual clause of the Armed
Career Criminal Act (“ACCA”) is void for vagueness. 135 S. Ct. at 2558-59. In
Davis, the Supreme Court held that the similarly worded residual clause in 18
U.S.C. § 924(c) (3) (B) is also void for vagueness. 139 S. Ct. at 2336.

-l1-

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

federal law enforcement. The victim of the robbery was in
possession of $1,500 in government funds intended to be used to
purchase a TEC-DC9, 9 mm. caliber semiautomatic pistol from James,
Ellison, and Moody. However, they determined that they were going
to rob the cooperator of the $1,500 instead of selling him the
weapon. The robbery took place on January 11, 2007, in a Wal-Mart
parking lot in Niagara Falls. Ellison acted as the driver and
lookout, while James and Moody effectuated the robbery. During the
course of the robbery, James shot the cooperator in the left leg.
Then, while attempting to flee the scene, James fired one shot from
the pistol he was carrying, narrowly missing one of the law
enforcement officers.
James was named in Counts 1 through 9 of the Indictment; he
eventually pleaded guilty to Counts 1, 4, 7, and 9. The instant §
2255 motion challenges Count 9, which charged a violation of 18
U.S.C. § 924(c)(1)(A)(iii) (“§ 924(c)(1)(A)(iii)”) as follows:
On or about the 11th day of January, 2007, in Niagara
Falls, New York, in the Western District of New York, the
defendant, GARY N. JAMES, Jr., during and in relation to
crimes of violence for which he may be prosecuted in a
court of the United States, namely, violations of Title
18, United States Code, Sections 111 and 1114 committed
in the manner set forth in Counts 7 and 8 of this
Indictment, the allegations of which are incorporated
herein by reference, did knowingly and unlawfully use and
carry, and in furtherance of said crimes of violence did
knowingly and unlawfully possess, a firearm, to wit, an
Iver Johnson Arms, Inc., Model TP22, .22 caliber,
semiautomatic pistol, bearing serial number AE73105, and
in the course of said carrying, use and possession did
discharge said firearm.
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Indictment at 10-11 (ECF #18) (emphases supplied).
Count 8 charged a violation of 18 U.S.C. § 111(a) and (b) as
follows:
On or about the 11th day of January, 2007, in Niagara
Falls, New York, in the Western District of New York, the
defendant, GARY N. JAMES, Jr., did knowingly and
unlawfully forcibly assault, resist, oppose, impede,
intimidate and interfere with Special Agent Jeffrey
Brannigan of United States Immigration and Customs
Enforcement and Special Agent Huy Khuu of the Bureau of
Alcohol, Tobacco, Firearms and Explosives, while they
were engaged in and on account of the performance of
their official duties, and in the commission of these
acts did use a deadly and dangerous weapon, that is, an
Iver Johnson Arms, Inc., Model TP22, .22 caliber,
semiautomatic pistol, bearing serial number AE73105.
Indictment at 9-10 (ECF #18).
Finally, Count 7 charged a violation of 18 U.S.C. § 1114 as
follows:
On or about the 11th day of January, 2007, in Niagara
Falls, New York, in the Western District of New York, the
defendant, GARY N. JAMES, Jr., did willfully and
unlawfully attempt to kill, with malice aforethought,
Special Agent Jeffrey Brannigan of United States
Immigration and Customs Enforcement, while he was engaged
in and on account of the performance of his official
duties, by discharging a firearm, to wit, an Iver Johnson
Arms, Inc., Model TP22, .22 caliber, semiautomatic
pistol, bearing serial number AE73105, at Special Agent
Jeffrey Brannigan, which acts had the tendency to produce
death.
Indictment at 9 (ECF #18).
James entered into a Plea Agreement (ECF #59) dated August 6,
2008, which recited that he was agreeing to plead guilty to Counts
1, 4, 7, and 9 of the Indictment. Count 1 charged a violation of 18
U.S.C. § 2114 (a) and 2, (Assault with Intent to Rob), which
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carries a maximum possible sentence of a term of imprisonment of 25
years and a term of supervised release of 5 years; Count 4, which
charges a violation of 18 U.S.C. § 111(a)(1) and (b)(2) (Assault of
a Person Assisting an Officer of the United States) and carries a
maximum possible sentence of 20 years’ imprisonment and a term of
supervised release (“SR”) of 3 years; Count 7, which charges a
violation of 18 U.S.C. § 1114 (Attempted Murder of an Officer of
the United States) and carries a maximum possible sentence of 20
years’ imprisonment and a 3-year term of SR; and Count 9, which
charges a violation of 18 U.S.C. § 924 (c)(1)(A)(iii) (Use and
Carrying of a Firearm during or in relation to a Crime of Violence
and the unlawful Possession of a Firearm in furtherance of a Crime
of Violence) and carries a consecutive, mandatory term of at least
10 years to life in prison plus a 5-year term of SR.
James and the Government “agree[d] to [certain] facts, which
form[ed] the basis for the entry of the plea of guilty including
relevant conduct,” and which included the following:
d) At approximately 8:00 p.m. [on January 11, 2007,]
[James], Moody and Ellison arrived at the Wal-Mart
Parking lot, in the vehicle being driven by Ellison. Upon
arrival at the Wal-Mart parking lot, [James], Moody and
Ellison went to the front of the Wal-Mart. [James] went
to the [confidential informant] CI’s car and returned
with the CI. Ellison had left and entered the Wal-Mart,
while Moody had remained and met [James] and the CI.
[James] retrieved the above described Tec-9 9 from
Ellison’s car, and he, Moody and the CI went to and
entered the CI’s vehicle. While in the vehicle, [James]
displayed the Tec-9 to the CI and when the CI produced
the money to purchase the firearm, [James] grabbed the CI
from behind, pointed the above-described Iver Johnson
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pistol at the CI’s head and demanded the money. At this
time Moody forcibly took the money and a cell phone from
the CI. After Moody took the money [James] shot the CI in
the left leg.
e) After shooting the CI, [James] and Moody exited the
vehicle, as ICE agents, ATF agents and Niagara Falls
Police officers converged upon the scene. As [James] was
running from the vehicle, attempting to escape, ICE and
ATF agents, who were wearing clothing emblazoned with the
word “Police” in large letters, exited their vehicles,
yelled words to the effect of “Police” and “Stop, Police”
and began to pursue [James]. [James] at this time turned
and, with a depraved indifference to human life, fired
one shot from the Iver Johnson pistol at the law
enforcement officers who were pursuing him. The bullet
struck the vehicle that the ICE and ATF agents were
exiting, on the front drivers side panel about 3 inches
from Special Agent Jeff Brannigan, who was exiting the
vehicle at the time. The bullet then traveled up and off
the driver’s side mirror, again inches from Agent
Brannigan. Agent Huy Khuu, ATF, who was already out of
the vehicle and who had begun to pursue [James], was also
in the line of fire and saw the muzzle flash from
[James]’s pistol and heard the projectile go by him.
f) After his arrest, [James] stated that he[,] Moody and
Ellison intended to rob the CI, that [he] had shot the CI
and that he had shot at the law enforcement officers,
although he claimed not to realize that they were law
enforcement officers at that time. . . .
Plea Agreement at 5-7 (ECF #59).
James pleaded guilty on September 10, 2008, to Counts 1, 4,
7 and 9. See ECF Minute Entry dated 9/10/2008 (unnumbered entry);
Transcript of 9/10/2008 Proceedings (ECF #130). On January 19,
2009, James filed a pro se motion to withdraw his plea based on
ineffective assistance of trial counsel but subsequently withdrew
it.
James was sentenced on June 2, 2009, to 210 months’
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imprisonment on the convictions for Counts 1, 4 and 7, to be
served concurrently with each other; 120 months’ imprisonment on
the convictions for Count 9, to be served consecutively to all
sentences, for a total of 330 months’ imprisonment. In addition,
James was sentenced to 5 years’ SR on the convictions for Counts
1 and 9, and 3 years’ SR on the convictions for Counts 4 and 7,
with all terms to be served concurrently with standard and special
conditions. Counts 2, 3, 5, 6 and 8 were dismissed on the
Government’s motion. See ECF Minute Entry dated 6/02/2009
(unnumbered entry); Judgment (ECF #100).
James filed a pro se § 2255 motion (ECF #104) in April 2011.
This was terminated on December 6, 2011, due to James’s failure to
comply with a scheduling order (ECF #5). See ECF Minute Entry
dated 12/06/2011 (unnumbered entry).
Following the Supreme Court’s issuance of the Johnson
decision, James, through counsel, filed his original § 2255 motion
(ECF #120) on June 8, 2016. On November 7, 2019, James filed his
supplemental § 2255 motion (ECF #142) based on the Supreme Court’s
decision in Davis. James contends that his conviction on Count 9
for violating § 924(c)(1)(A)(iii) must be vacated in light of
Davis because Count 7 is no longer a crime of violence within the
residual clause, § 924(c)(3)(B), and the validity of Count 9
depends solely on the validity of County 7. The Government has
filed responses to the motions (ECF ##148, 149) arguing that Count
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9 is based on two predicate crimes, Counts 7 and 8, even though
James only pleaded guilty to Count 7. Since James makes no
argument that Count 8 is not a crime of violence under the
elements clause, § 924(c)(3)(A)—which was not disturbed by
Davis—the validity of Count 9 is not called into question. In any
event, the Government contends, Count 7 is a crime of violence
within the elements clause, § 924(c)(A), and therefore can be a
predicate felony for Count 9. James has not filed a reply.
III. Scope of Review Under § 2255
Section 2255 provides, in relevant part, as follows: “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.” 28 U.S.C. § 2255(a). A court
may dismiss a Section 2255 motion without a hearing if the motion
and the record “conclusively show[,]” id., that the movant is not
entitled to relief. See, e.g., Chang v. United States, 250 F.3d
79, 85-86 (2d Cir. 2001) (district court was not required to hold
full testimonial hearing before deciding federal prisoner’s motion
to vacate, set aside or correct sentence based on claim of
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ineffective assistance of counsel alleging that counsel prevented
him from exercising his right to testify on his own behalf, where
prisoner made only general allegation, and record was supplemented
by detailed affidavit from trial counsel credibly describing
circumstances concerning prisoner’s failure to testify).
IV. Merits of the § 2255 Motions
A. Both Counts 7 and 8 Are Predicate Crimes Underlying
Count 9
James’s primary contention is that the only predicate crime
underlying Count 9 is Count 7, and that Count 7 is no longer a
crime of violence following Davis’s invalidation of the residual
clause, § 924(c)(3)(B). James’s argument depends on the
proposition that Count 8 does not qualify as a predicate crime for
Count 9 because he did not plead guilty to Count 8.
The Government counters that both Counts 7 and 8 are
predicate crimes forming the basis of Count 9, notwithstanding the
fact that James did not plead guilty to Count 8. The Government
notes that the Second Circuit has “join[ed] the consensus” of its
sister circuits in holding that Ҥ 924(c) does not require the
defendant to be convicted of (or even charged with) the predicate
crime, so long as there is legally sufficient proof that the
predicate crime was, in fact, committed.” United States v. Leonard
Johnson, 779 F.3d 125, 129-30 (2d Cir. 2015) (“Leonard Johnson”);
accord, e.g., United States v. Rivera, No. 16-191-cr, 2017 WL
659940, at *3 (2d Cir. Feb. 15, 2017) (summary order) (defendant’s
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plea allocution provided factual basis for underlying predicate
crime).
James has not addressed the Government’s argument based on
Leonard Johnson. In that case, the § 2255 petitioner had been
convicted, following a jury trial, of (1) unarmed bank robbery,
(2) armed bank robbery, and (3) using and carrying a firearm
during and in connection with a crime of violence—the bank
robbery—in violation of § 924(c). In an appeal filed before the §
2255 motion, the Second Circuit had vacated the unarmed bank
robbery conviction on the ground of multiplicity with the
conviction for armed bank robbery in the same incident. Thus, at
the time he filed his § 2255 petition, the only two remaining
convictions were for § 924(c) and armed bank robbery. The
petitioner argued that the § 924(c) conviction could not stand
because, there was no subsisting conviction on the predicate crime
of violence following the Circuit’s earlier vacatur of the unarmed
robbery conviction. Leonard Johnson, 779 F.3d at 126.
The Second Circuit noted that it was called to consider “(1)
whether a § 924(c) conviction can be sustained if, notwithstanding
legally sufficient proof, the jury acquits on the predicate crime,
and (2) whether a § 924(c) conviction requires that the defendant
be charged with and convicted of the predicate crime[.]” Leonard
Johnson, 779 F.3d at 129 (internal and other citations omitted;
footnote omitted). Noting an arguable circuit split the first
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question, the Second Circuit did not need to consider it because
the jury found beyond a reasonable doubt that the defendant
committed both bank robbery and armed bank robbery. Id. (citations
omitted).
As to the second question, which is directly relevant to
James’s case, the Second Circuit concluded that
[t]he plain language of § 924(c) requires only that the
predicate crime of violence (or drug trafficking) have
been committed; the wording does not suggest that the
defendant must be separately charged with that predicate
crime and be convicted of it.
779 F.3d at 129-30 (citing 18 U.S.C. § 924(c)(1)(A) (“[A]ny 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 [be
subject to criminal penalties].”)). The Second Circuit observed
that “[e]very circuit court to have considered the issue has
concluded that § 924(c) does not require the defendant to be
convicted of (or even charged with) the predicate crime, so long
as there is legally sufficient proof that the predicate crime was,
in fact, committed.” Id. at 129 (collecting circuit cases). In
regard to Leonard Johnson’s case, there was legally sufficient
proof that he committed the unarmed bank robbery—the specified
predicate crime—because the jury returned a guilty verdict on that
count. In other words, the Second Circuit’s earlier vacatur of
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that conviction on grounds unrelated to evidentiary sufficiency
did not undermine the § 924(c)(1) conviction premised upon it. Id.
at 129-30.
In Forman v. United States, No. 15 CR. 237 (PAC), 2017 WL
1434477, at *2 (S.D.N.Y. Apr. 20, 2017), the district court
applied Leonard Johnson to a § 2255 petitioner who had been
charged in a two-count indictment with (1) Hobbs Act robbery of a
videogame store in violation of 18 U.S.C. § 1951, and (2) using
and brandishing a firearm in furtherance of that Hobbs Act
robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Forman
pleaded guilty only to the count charging a violation of §
924(c)(1)(A)(ii). In his § 2255 petition, Forman argued, among
other things, that § 924(c) conviction must be vacated because he
did not also plead guilty to a predicate crime—the Hobbs Act
robbery charged in count one of the indictment. Forman, 2017 WL
1434477, at *2. The district court held that this argument was
“foreclosed” by the Second Circuit’s Leonard Johnson decision,
id., because “there was legally sufficient proof that Forman
committed Hobbs Act robbery” inasmuch as “he admitted during his
plea allocution that he ‘possessed and brandished a handgun while
forcibly stealing property from a retail video game store.’” id.
(quotation to record omitted; citing United States v. Rivera, No.
16-191-cr, 2017 WL 659940, at *3 (2d Cir. Feb. 15, 2017) (summary
order) (defendant’s plea allocution provided factual basis for
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underlying predicate crime)) see also Larode v. United States, 356
F. Supp.3d 561, 567–68 (E.D. Va. 2019) (charges of assault on, and
attempted murder of, a federal officer under 18 U.S.C. § 111,
which were dismissed as part of § 2255 petitioner’s plea
agreement, could still serve as predicate offenses supporting his
conviction for using a firearm during a crime of violence in
violation of § 924(c); what mattered were the facts to which he
stipulated in entering his plea and what predicate offenses he
committed based on those facts) (citing United States v. Nelson,
27 F.3d 199, 200-01 (6th Cir. 1994) (“[W]hile it is necessary for
the government to present proof of the underlying crime to convict
under § 924(c), a defendant need not be convicted or even charged
with the underlying crime to be convicted under § 924(c).”); other
citation omitted).
Here, at the beginning of the plea proceeding, the assistant
United States attorney (“AUSA”) summarized the four charges to
which James would be pleading guilt. He explained Count 9 as “a
violation of 18 U.S.C. Section 924(c)(1) which is the using and
carrying of a firearm during or in relation to a crime of violence
in this case, the assault on both -- the attempted murder both of
Agent Brannigan [as charged in Count 7] and the shot fired in
Count Number 8[,] which he is not pleading guilty to[,] at Special
Agent Khuu of ATF.” Transcript of 9/10/08 Plea Proceeding (“Plea
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Tr.”) at 5:13-18 (ECF #130) (emphasis supplied).2
The AUSA then articulated the factual basis, including
relevant conduct—on which James and the Government had agreed—for
the entry of the guilty plea. Id. at 11:16-15:2 (ECF #130).3 With
particular regard to Count 9, the AUSA explained as follows:
The defendant at this time turned and with depraved
indifference to human life fired one shot from the Iver
Johnson pistol at the law enforcement officers who were
pursuing him. The bullet struck a vehicle that ICE and
ATF agents were exiting on the front driver’s side panel
about three inches from Special Agent Jeff Brannigan who
was then exiting the vehicle. The bullet then travelled
up and off the driver’s side mirror again inches from
Jeff -- from Agent Brannigan. Agent Hui Khuu, H-U-I;
K-H-U-U of the ATF who is already out of the vehicle and
who had begun to pursue the defendant was also in the
line of fire and saw the muzzle flash from the
defendant’s pistol and heard the projectile go by him.
Plea Tr. at 14:16-15:2. The AUSA thus clearly referenced the
conduct charged in both Count 7 (the attempt to kill a federal
agent based on the shot fired at Special Agent Brannigan) and
Count 8 (the forcible assault of federal agents based on the shot
fired by James at Special Agent Brannigan that also nearly hit
Special Agent Khuu). The AUSA proceeded to set forth a summary of
the Government’s proof regarding these allegations, including the
2
Incidentally, James’s defense counsel, when asked by the Court (Arcara,
D.J.), stated that were no reason to go through any further explanation of the
charges, that he had fully reviewed the terms of the Plea Agreement with James,
and that James understood them. Id. at 6:1-8 (ECF #130). James affirmatively
stated that he had “[n]o complaints” about the advice he had received. Id. at
6:20-24 (ECF #130).
3
As noted in the Factual Background and Procedural History section of this
Decision and Order, all of these factual allegations had been set forth with the
same level of detail in the Plea Agreements. See Plea Agreement (ECF #59).
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proposed testimony by Special Agents Brannigan and Khuu about the
shot fired in their direction:
Agent Brannigan would testify that [the bullet] struck
the panel of the car right by the rearview mirror roughly
three inches from where he was, traveled up and past his
head, again, roughly a matter of inches.
Agent Hui Khuu of the ATF would testify that he had
already been out of the car and had begun the pursuit
when he saw the defendant turn, Agent Khuu would say he
saw the muzzle flash and heard a bullet go by, what he
perceived as his head, but obviously he couldn’t say his
head, but he did hear the bullet go by close enough to
him to realize that it was a bullet and that he’d been
shot at.
Plea Tr. at 17:8-17.
James confirmed that he understood the facts as recited by
the AUSA as well as the summary of the evidence. Id. at 15:15-16;
18:10-11 (ECF #130). James then entered guilty pleas as to all
four counts (1, 4, 7, and 9), Plea Tr. at 36:16-24. His guilty
plea was accepted by the Court (Arcara, D.J.) as “a knowing and
voluntary plea supported by an independent basis in fact
containing each of the essential elements of the offense charged.”
Id. at 37:2-4.
There is no question that .
B. Count 8 Qualifies as a Crime of Violence Under §
924(c)’s Elements Clause, § 924(c)(3)(A)
The Court now turns to a consideration of whether Count 8
qualifies as a crime of violence under § 924(c)(1)(A), which
provides for a sentencing enhancement when a defendant “uses or a
carries a firearm” or “possesses a firearm” “in furtherance of” “a
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crime of violence.” 18 U.S.C. § 924(c)(1)(A). “For purposes of
[Section 924(c)(1)(A)] the term ‘crime of violence’ means an
offense that is a felony that 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) of the Section 924(c)(3) is
known as the “elements clause,” while Subsection (B) is called the
“residual clause.” Knight v. United States, 936 F.3d 495, 497 (6th
Cir. 2019). The Supreme Court recently invalidated the residual
clause, § 924(c)(3)(B), as unconstitutionally vague. Davis, 139 S.
Ct. at 2336. But an offense still qualifies as a “crime of
violence” if it satisfies the elements clause, § 924(c)(3)(A).
See, e.g., Knight, 936 F.3d at 497 (holding that assault and
robbery of a postal employee under 18 U.S.C. § 2114(a) constituted
a “crime of violence” because it satisfied the elements clause of
§ 924(c)(3)).
Title 18 U.S.C., § 111(a) punishes assaults committed on
federal agents by imprisonment up to 8 years as follows:
In general.--Whoever—
(1) forcibly assaults, resists, opposes, impedes,
intimidates, or interferes with any person designated in
section 1114 of this title while engaged in or on account
of the performance of official duties; . . . shall, where
the acts in violation of this section constitute only
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simple assault, be fined under this title or imprisoned
not more than one year, or both, and where such acts
involve physical contact with the victim of that assault
or the intent to commit another felony, be fined under
this title or imprisoned not more than 8 years, or both.
18 U.S.C. § 111(a).
Title 18 U.S.C., § 111(b) contains a sentencing enhancement
which is triggered upon the occurrence of the following:
Enhanced penalty.--Whoever, in the commission of any acts
described in subsection (a), uses a deadly or dangerous
weapon . . . or inflicts bodily injury, shall be fined
under this title or imprisoned not more than 20 years, or
both.
18 U.S.C. § 111(b). Courts have held that § 111 “is plainly
divisible,” United States v. Taylor, 848 F.3d 476, 492 (1st Cir.),
cert. denied, ––– U.S. ––––, 137 S. Ct. 2255 (2017). Count 8 of
the Indictment, by alleging “and in the commission of these acts
did use a deadly and dangerous weapon, that is, an Iver Johnson
Arms, Inc., Model TP22, .22 caliber, semiautomatic pistol, bearing
serial number AE73105,” Indictment at 10 (ECF #18), clearly
charged the enhanced offense as set forth in 18 U.S.C. § 111(b).
As the Government observes, James has not suggested that the
violation of 18 U.S.C. § 111(b) alleged in Count 8 is not a crime
of violence within § 924(c)(3)(A). The Court’s research indicates
that the circuit courts to have dealt with this issue post-Johnson
have held that the enhanced offense of § 111(b) is a crime of
violence within the elements (or force) clause of § 924(c)(3)(A),
or the similarly-worded 18 U.S.C. § 16(a). See Taylor, 848 F.3d at
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492–93 (“In assessing whether the enhanced versions of § 111(b)
are crimes of violence, we do not write on a clean slate. In fact,
every court we are aware of that has considered the issue has
found that it is because the elements of the enhanced offense
require the use, attempted use, or threatened use of force capable
of causing pain or injury.”) (citing United States v. Rafidi, 829
F.3d 437, 445–46 (6th Cir. 2016), cert. denied, 137 S. Ct. 2147
(2017); United States v. Hernandez–Hernandez, 817 F.3d 207, 215
(5th Cir. 2016) (decided under Sentencing Guidelines § 2L1.2);
other citations omitted), cert. denied, 137 S. Ct. 2255 (2017);
see also United States v. Kendall, 876 F.3d 1264, 1271 (10th Cir.
2017).
The First Circuit in Taylor analyzed the enhanced version of
§ 111 that involves the use of a “deadly or dangerous weapon,” the
version with which James was charged. “[A] deadly or dangerous
weapon is ‘any object which, as used or attempted to be used, may
endanger the life of or inflict great bodily harm on a person.’”
Taylor, 848 F.3d at 493 (quoting United States v. Sanchez, 914
F.2d 1355, 1358 (9th Cir. 1990)). Citing the definition of
“physical force” articulated in Johnson v. United States, 559 U.S.
133 (2010) (“Johnson I”), the First Circuit noted that “to be a
crime of violence, the crime must require the ‘use, attempted use,
or threatened use’ of ‘force capable of causing physical pain or
injury to another person.’” Taylor, 848 F.3d at 494 (quoting
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Johnson I, 559 U.S. at 140). The First Circuit reasoned that “[a]
defendant who acts ‘forcibly’ using a deadly or dangerous weapon
under § 111(b) must have used force by making physical contact
with the federal employee, or at least threatened the employee,
with an object that, as used, is capable of causing great bodily
harm.” Id. at 494 (emphasis supplied). Even “‘in the absence of
physical contact,’” a petitioner “may be convicted of violating §
111 if he engages in ‘such a threat or display of physical
aggression toward the officer as to inspire fear of pain, bodily
harm, or death,’ which in combination with the use or brandishing
of a deadly weapon is more than enough to satisfy § 924(c)(3)(A)’s
requirement of the “threatened use of physical force.” Larode, 356
F. Supp.3d at 572 (quoting Rafidi, 829 F.3d at 446).
The Court accordingly joins with those circuit and district
courts which have found that § 111(b), one of the predicate
offenses underlying James’s § 924(c)(3) conviction, qualifies as
a crime of violence under the elements clause. Although James did
not plead guilty to Count 8 charging a violation of § 111(b), he
admitted, in the facts set forth in the Plea Agreement and recited
by the AUSA during the plea colloquy, that he fired a deadly
weapon in the direction of Special Agent Brannigan, that the shot
hit the car about three inches from Special Agent Brannigan and
traveled inches past his head, and that Special Agent Khuu heard
the bullet go by him. These facts demonstrate that James used a
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deadly weapon to engage in the threat of physical aggression
toward the officer so as to inspire fear of pain, bodily harm, or
death,” which is enough to satisfy § 924(c)(3)(A)’s requirement of
the “threatened use of physical force.”
In sum, the Court finds that Count 8 charging a violation of
§111(b) can serve as a predicate offense for Count 9, and that §
111(b) is a crime of violence under § 924(c)’s elements clause.
Since there exists a sufficient predicate for Count 9, the Court
need not consider whether Count 7 also constitutes a crime of
violence under § 924(c)’s elements clause.
V. Conclusion
James’s § 2255 Motion and Supplemental § 2255 Motion are
denied for the reasons stated above. The Court declines to grant
a certificate of appealability because James has not made a
substantial showing of the denial of a constitutional right. The
Clerk of Court is directed to close case No. 1:16-cv-00477-MAT.
SO ORDERED.
S/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated: January 8, 2020
Rochester, New York
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