Brown v. United States

United States Court of Appeals
For the First Circuit

No. 16-1293

ELAINE BROWN,

Petitioner,

v.

UNITED STATES,

Respondent.

APPLICATION FOR LEAVE TO FILE A SECOND
OR SUCCESSIVE MOTION UNDER 28 U.S.C. § 2255

Before

Lynch, Stahl, and Thompson,
Circuit Judges.

Bjorn R. Lange for petitioner.
Seth R. Aframe, Assistant U.S. Attorney, with whom Scott W.
Murray, United States Attorney, was on brief, for respondent.

October 12, 2018
 LYNCH, Circuit Judge. Elaine Brown seeks permission to

file a successive motion under 28 U.S.C. § 2255 to vacate her

conviction and sentence for possessing a destructive device

"during and in relation to" and "in furtherance of" a "crime of

violence," in violation of 18 U.S.C. § 924(c). 18 U.S.C.

§ 924(c)(1)(A). Brown hopes to argue in the district court that

the rule announced in Johnson v. United States, 135 S. Ct. 2551

(2015), and reiterated in Sessions v. Dimaya, 138 S. Ct. 1204

(2018), renders the definition of "crime of violence" under which

she was convicted and sentenced void for vagueness under the Fifth

Amendment's Due Process Clause. We deny her application.

I.

Elaine Brown and her husband staged a nine-month-long

armed standoff with federal law enforcement in 2007. United

States marshals sought to apprehend the Browns after their

convictions for tax evasion. Heavily armed with firearms,

ammunition, and explosives, including pipe bombs, the Browns

locked themselves in their New Hampshire house and announced, via

Internet radio, that the government lacked authority to arrest

them. The Browns threatened to kill law enforcement who

approached the house.

When the standoff ended with the Browns' arrest, Elaine

Brown was indicted in the District of New Hampshire on six counts,

including: (1) conspiracy to prevent federal officers from

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discharging their duties, in violation of 18 U.S.C. § 372;

(2) conspiracy to assault, resist, or interfere with federal

officers, in violation of 18 U.S.C. § 371 and 18 U.S.C.

§ 111(a)(1); and (3) possession of a firearm or destructive device

during and in relation to and in furtherance of a crime of

violence, in violation of 18 U.S.C. § 924(c). Section 924(c)(3)

defines a "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).

At Brown's trial in 2009, the jury was instructed that

the conspiracy counts were "crimes of violence." Here, the

parties agree that the predicates were found under § 924(c)(3)(B),

which is known as the residual clause.

The jury convicted Brown on all counts, and she was

sentenced to 420 months in prison. The § 924(c) charge carried a

mandatory minimum sentence of thirty years because it was for

possession of a destructive device. See id. § 924(c)(1)(B)(ii).

Brown's direct appeal was unsuccessful, United States v.

Brown, 669 F.3d 10, 34 (1st Cir. 2012), cert. denied, 566 U.S.

1017 (2012), as were her earlier § 2255 motions to "vacate, set

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aside or correct [her] sentence," 28 U.S.C. § 2255(a); see Brown

v. United States, No. 13-CV-21-GZS, 2013 WL 2474683 (D.N.H. June

7, 2013); Brown v. United States, No. 14-1410 (1st Cir. Apr. 22,

2014); Brown v. United States, No. 15-1689 (1st Cir. June 25,

2015). Brown first sought to file this successive motion in March

2016, following the Supreme Court's decision in Johnson. She

supplemented her motion this summer after Dimaya.

Before a federal prisoner can file a second or successive

§ 2255 motion in the sentencing court, the circuit court must give

permission. See 28 U.S.C. § 2255(h). As gatekeeper, this court

may "authorize the filing of a . . . successive application only

if" the application "makes a prima facie showing," id.

§ 2244(b)(3)(C), that it "relies on a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable," id. § 2244(b)(2)(A); see

id. § 2255(h) (stating that a "successive motion must be certified

as provided in section 2244"). 1 A prima facie showing is "a

sufficient showing of possible merit to warrant a fuller

exploration by the district court." Moore v. United States, 871

1 Although § 2244 only states that it applies to § 2254,
we have held that § 2244(b)'s requirements also apply to § 2255.
See Moore v. United States, 871 F.3d 72, 78 (1st Cir. 2017); see
also, e.g., Bennett v. United States, 119 F.3d 468, 469 (7th Cir.
1997) (holding the same).

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F.3d 72, 78 (1st Cir. 2017) (quoting Rodriguez v. Superintendent,

Bay State Corr. Ctr., 139 F.3d 270, 273 (1st Cir. 1998)).

The question here is whether Brown has made a prima facie

showing that Johnson's rule was new and previously unavailable,

has been made retroactive by the Supreme Court, and applies to her

conviction and sentence under § 924(c)'s residual clause. See id.

at 78-80 (describing our approach to evaluating second or

successive § 2255 motions).

Johnson held that the residual clause of the Armed Career

Criminal Act's (ACCA) definition of "violent felony" was

unconstitutionally vague. 135 S. Ct. at 2555-57. ACCA imposes

on a defendant a more severe penalty for being a felon in

possession of a firearm if he has three or more prior convictions

for a "violent felony." 18 U.S.C. § 924(e)(1). In Dimaya, the

residual clause of the definition of "crime of violence" at 18

U.S.C. § 16(b) had been used to evaluate a prior conviction in an

immigration removal proceeding. 138 S. Ct. at 1211. Applying

Johnson's reasoning, Dimaya invalidated § 16(b)'s residual clause,

the text of which was identical in relevant part to the text of

§ 924(c)'s residual clause, quoted above. Id. at 1216.

It is undisputed that Johnson established a new rule of

constitutional law that was previously unavailable to Brown and

that has been made retroactive to cases on collateral review.

See, e.g., Moore, 871 F.3d at 80 (explaining Johnson's novelty,

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availability, and retroactivity); see also Welch v. United States,

136 S. Ct. 1257, 1264-65 (2016) (making Johnson retroactive).

Disputed is whether Johnson's rule, reaffirmed in

Dimaya, extends to Brown's conviction under § 924(c)'s residual

clause. Brown argues that this is reasonably likely because

§ 924(c)'s residual clause is textually identical in relevant part

to § 16(b)'s and is materially the same as ACCA's. The government

counters that Johnson's rule cannot reach § 924(c)'s residual

clause because that provision demands a case-specific rather than

a categorical, or ordinary case, approach to "crime of violence"

determinations. This is significant because the Court had applied

a categorical approach to both § 16(b)'s and ACCA's residual

clauses. As the Court explained in Johnson and Dimaya, the

intolerable vagueness of those provisions largely derived from the

categorical approach. See Johnson, 135 S. Ct. 2557-58; id. at

2561; Dimaya, 138 S. Ct. at 1213-16; see also Welch, 136 S. Ct. at

1262 ("The vagueness of [ACCA's] residual clause rests in large

part on its operation under the categorical approach.").

Johnson's rule would not extend to a provision that evaluated

crimes of violence using a case-specific approach.

Recently, in United States v. Douglas, No. 18-1129, slip

op. at 14 (1st Cir. Oct. 12, 2018) we held that § 924(c)(3)(B)

requires a case-specific approach. We rejected a Johnson-based

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challenge to that provision. See Douglas, slip op. at 2. After

Douglas, we cannot certify Brown's application.

In that decision, we emphasized that the Supreme Court

has never applied the categorical approach in a context like

§ 924(c)'s residual clause. See id. at 25-26. That approach was

devised to address practical and Sixth Amendment concerns related

to judicial evaluation at sentencing of prior convictions,

especially remote prior convictions. See id. at 15-19. But

§ 924(c) charges are always contemporaneous with the underlying

"crime of violence" charges. When predicate charges are

contemporaneous, a conduct-specific evaluation by the jury or

through the plea hearing is both practical and consistent with the

right to a jury trial. See id. at 25-30. We also concluded that

the text of § 924(c)(3)(B), and the congressional intent behind

that text, indicate a case-specific approach. Id. at 20-25.

In Douglas, we rejected the arguments that Brown

advances and that she would advance in the district court. As a

result, Brown cannot make the requisite "showing of possible merit

to warrant a fuller exploration in the district court." Moore,

871 F.3d at 78 (quoting Rodriguez, 139 F.3d at 273). It is "clear

as a matter of law" that Brown could not get relief in the district

court under her "identified constitutional rule." See United

States v. Evans-García, 744 F.3d 235, 240-41 (1st Cir. 2014)

(denying an application where the identified rule was

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inapplicable); see also In re Hoffner, 870 F.3d 301, 311 (3d Cir.

2017) (explaining that an application "foreclosed by our

precedent" cannot be certified (quoting In re Arnick, 826 F.3d

787, 790 (5th Cir. 2016) (Elrod, J., dissenting))). We must deny

her application.

Brown emphasizes that other circuits have granted

petitions like hers. See Acosta v. United States, No. 16-1492 (2d

Cir. June 8, 2018); In re Chapman, No. 16-246 (4th Cir. May 3,

2016); Ruiz v. United States, No. 16-1193 (7th Cir. Feb. 19, 2016);

Freeman v. United States, No. 15-3687 (2d Cir. Jan. 26, 2016); In

re Pinder, 824 F.3d 977 (11th Cir. 2016). But these circuits had

precedent requiring a categorical approach to § 924(c)'s residual

clause. See, e.g., United States v. Cardena, 842 F.3d 959, 996

(7th Cir. 2016), cert. denied, 138 S. Ct. 247 (2017); United States

v. Ivezaj, 568 F.3d 88, 95 (2d Cir. 2009). So did the circuits

that have held § 924(c)(3)(B) to be unconstitutionally vague after

Johnson and Dimaya. See United States v. Salas, 889 F.3d 681,

684-86 (10th Cir. 2018); United States v. Eshetu, 898 F.3d 36, 37

(D.C. Cir. 2018) (per curiam); United States v. Davis, 903 F.3d

483, 486 (5th Cir. 2018) (per curiam); Cardena, 842 F.3d at 996.

But see United States v. Taylor, 814 F.3d 340, 379 (6th Cir. 2016)

(upholding § 924(c)'s residual clause); United States v. Barrett,

903 F.3d 166, 184 (2d Cir. 2018) (same). In contrast, before

Douglas adopted the case-specific approach to § 924(c)'s residual

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clause, this circuit had adopted neither a categorical nor a case-

specific approach. See Douglas, slip op. at 15; see also United

States v. Turner, 501 F.3d 59, 67 (1st Cir. 2007). Douglas dooms

this application.

We would deny Brown's application even absent Douglas.

Brown would have to show sufficiently that the categorical

approach, and with it Johnson's rule, applies to § 924(c)(3)(B).

This is a hurdle she cannot clear. Circuit precedent does not

help her. The Supreme Court has never applied Johnson's rule, or

the related categorical approach, in a context like this one,

involving pending charges, not prior convictions. See Douglas,

slip op. at 25; Barrett, 903 F.3d at 181-82. As explained, that

approach was designed to address the practical and constitutional

problems attendant to evaluating prior convictions at sentencing.

Recognizing all of this, Brown leans on the text, arguing

that the Dimaya plurality required a categorical approach to

§ 924(c)(3)(B) when it commented that § 16(b)'s language was

"[b]est read" to "demand[] a categorical approach." Dimaya, 138

S. Ct. at 1217 (plurality opinion). Brown cannot make a prima

facie showing that the categorical approach applies based on this

statement. For one, § 924(c)(3)(B) might be read differently

because it applies to pending, not prior convictions. In

addition, this statement garnered only four votes. Justice

Gorsuch, the majority's fifth member, "remain[s] open to different

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arguments . . . about . . . language like this." Id. at 1233

(Gorsuch, J., concurring in part and concurring the judgment).2

In short, neither the Dimaya plurality, nor other

Supreme Court precedent, nor circuit case law require a categorical

approach for § 924(c)(3)(B). Contrast this with Moore, in which

we certified a motion arguing that Johnson's rule applied to a

sentencing law that used the same language as ACCA's residual

clause. Moore, 871 F.3d at 80. To make a prima facie showing

that Johnson applied to his sentence, Moore needed to demonstrate

that this sentencing law, as applied to him, fixed sentences. Id.

The court looked closely at how the Supreme Court and the First

Circuit had applied that sentencing law at the time Moore was

sentenced, before the Supreme Court made sentencing guidelines

advisory in United States v. Booker, 543 U.S. 220 (2005). Based

on this case law, the court determined that Moore had made a prima

facie showing that the law could fix sentences and therefore that

Johnson applied. Moore, 871 F.3d at 83-84. Brown has not made a

comparable showing under relevant case law that the categorical

approach, and with it Johnson, applies to § 924(c)(3)(B).

2 Any suggestion by other circuits that Dimaya implicitly
held that § 924(c)(3)(B), like § 16(b)'s residual clause, is
unconstitutional depended on binding precedent in those circuits
holding that the categorical approach applies. See Davis, 903
F.3d at 485-86; id. at 486 ("Because the language of the residual
clause here and that in § 16(b) are identical, this court lacks
the authority to say that, under the categorical approach, the
outcome [here and in Dimaya] would not be the same.").

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 Of course, if the Supreme Court decides that Johnson's

rule applies, or otherwise holds that § 924(c)(3)(B) is

constitutionally problematic, then Brown can at that time seek

permission to file a new motion. This application, however, does

not meet the requirements for certification of a successive § 2255

motion.

II.

We deny certification of Brown's successive motion under

28 U.S.C. § 2255(h).

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