United States District Court, D. Montana, Billings Division
AMENDED ORDER GRANTING § 2255 MOTION AND SETTING
P. WAITERS UNITED STATES DISTRICT JUDGE
case comes before the Court on Defendant Birdinground's
motion to vacate, set aside, or correct the sentence under 28
U.S.C. § 2255. Birdinground is a federal prisoner
proceeding with counsel.
February 21, 2003, Birdinground was indicted on one count of
second-degree murder, a violation of 18 U.S.C. § 1111(a)
(Count 1); one count of assault resulting in serious bodily
injury, a violation of 18 U.S.C. § 113(a)(6) (Count 2);
and one count of using or carrying and discharging a firearm
during and in relation to "Assault and Murder," a
violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count 3).
Indictment (Doc. 10) at 2.
four-day jury trial, Birdinground was convicted on all three
counts. Verdict (Doc. 57) at 1, 3. On March 11, 2004, he was
sentenced to serve 168 months on Count 1, 120 months on Count
2, and a consecutive ten-year term on Count 3, for a total
term of 288 months. Minutes (Doc. 64); Judgment (Doc. 65) at
1-2. Birdinground appealed. His conviction was affirmed on
December 8, 2004, and became final on March 8, 2005.
Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
now seeks relief under the United States Supreme Court's
recent decision in Johnson v. United States, ___U.S.
___, 135 S.Ct. 2551 (2015).
would agree that a person who uses a firearm as a weapon in
the course of committing a crime is using or at least
threatening to use violence. Birdinground used a firearm as a
weapon in committing a crime. But that does not necessarily
mean he is guilty of using or carrying a firearm or
possessing one in furtherance of a "crime of
violence" within the meaning of 18 U.S.C. § 924(c).
"Crime of Violence"
penalizes those who use a firearm to commit federal drug
trafficking crimes and federal crimes of violence. Pursuant
to 18 USC §924(c)(1)(A), a person who does the following
will be penalized:
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[.]
trafficking is not at issue here. The question is whether
Birdinground used or carried a firearm or possessed one in
furtherance of a "crime of violence." Congress
defines the term as follows:
purposes of this subsection [§ 924(c)] the term
"crime of violence" means an offense that is a
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(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).
person who trades a firearm for advice on how to commit tax
fraud arguably uses the firearm during and in relation to tax
fraud, or at least possesses the firearm in furtherance of
tax fraud. Cf Watson v. United States, 552 U.S. 74,
76 (2007); Smith v. United States, 508 U.S. 223, 241
(1993). But § 924(c) could not apply to that person,
because tax fraud is not a "crime of violence"-that
is, it does not have force as an element, and it does not
"by its nature" involve a substantial risk that
force will be used.
person who uses a firearm to extort advice on how to commit
tax fraud is at least threatening to use violence, and might
even use violence, during and in relation to the crime of tax
fraud. It would be reasonable to authorize punishment for
using a firearm in that manner. Congress once did so.
See Omnibus Crime Control Act of 1970, Pub. L. No.
91-644, tit. II, § 13, 84 Stat. 1889, 1890 (Jan. 2,
1971) (authorizing additional one- to ten-year penalty for
using a firearm to commit or unlawfully carrying a firearm
during commission of "any felony" prosecutable in
court of the United States); Comprehensive Crime Control Act
of 1984, Pub. L. No. 98-473, § 1005(a), 98 Stat 1837,
2138-39 (Oct. 12, 1984) (replacing former § 924(c) with
provision imposing five-year sentence for using or carrying a
firearm during and in relation to a crime of violence);
see also Firearms Owners' Protection Act, Pub.
L. No. 99-308, § 104(a)(2)(F), 100 Stat. 449 (May 19,
1986) (enacting definition of "crime of violence"
currently found in § 924(c)(3)).
Congress does not do so now. Since 1984, Congress has limited
the instances in which a person can be punished for using or
carrying a firearm in criminal activity. Section 924(c) could
not apply to a person who uses a firearm to extort tax fraud
advice, because tax fraud does not meet Congress's
definition of a crime of violence.
committed second-degree murder. The question is whether
second-degree murder meets Congress's definition of a
"crime of violence." Here, the key characteristic
of Congress's definition of a "crime of
violence" is that it applies to categories of crimes,
not to the circumstances in which an individual defendant
uses or carries or possesses a firearm. Necessarily so, using
a firearm as a weapon to commit a crime would make
any crime a violent one. But if that was what
Congress intended, the phrase "crime of violence"
would be superfluous.
uses the identical phrase, "crime of violence,"
elsewhere in Title 18, see § 16. It uses a
similar phrase, "violent felony," elsewhere in
§ 924, at subsection 924(e)(2)(B). As to both §
924(e)(2)(B) and § 16, courts use a "categorical
approach" to decide whether a given crime fits
Congress' definition. This approach looks "only to
the statutory definitions" of the crime, "not to
the particular facts underlying" an individual
defendant's commission of the crime. Taylor v. United
States, 495 U.S. 575, 600 (1990); see also United
States v. Sherbondy, 865 F.2d 996, 1009-10 (9th Cir.
1988) (holding that district court may look only "to the
statutes establishing the crimes," not "the
individual defendant's specific conduct in committing the
.. . offense."), cited in Taylor, 495 U.S. at
§ 924(e)(2)(B) and § 16 have a different function
than § 924(c). They are used to characterize an
individual defendant's prior convictions in
order to determine whether his or her criminal record
justifies new consequences, such as a higher penalty for a
new offense or removal from the United States. Prior
convictions may be incurred in at least 51 different
jurisdictions and may have widely varying elements and
contexts, so they may or may not warrant new consequences.
For instance, a person convicted of "extortion" in
a jurisdiction where the State must prove the defendant used
a firearm as a weapon is not really comparable to a person
convicted of "extortion" in a jurisdiction where
the State need only prove the defendant contacted other
people and threatened to publicly humiliate them unless they
paid at least $1, 000.
924(c) does not concern prior convictions. The drug
trafficking crime or crime of violence supporting a §
924(c) charge must be one "for which the person may be
prosecuted in a court of the United States." 18 U.S.C.
§ 924(c)(1)(A). So the predicate crime will always be a
federal crime, not one that will be defined in different
jurisdictions. Further, the United States usually prosecutes
the predicate crime at the same time as the § 924(c)
charge, as it did in this case. As a result, there is an
opportunity under § 924(c) to try the facts,
with all the due process protections of a criminal trial.
That opportunity does not exist under § 924(e)(2)(B) or
§ 16. A court could, under § 924(c), look to facts
to decide whether a particular crime was a "crime of
violence" in view of the way the defendant committed it.
Cf. United States v. Robinson, 844 F.3d 137, 144 (3d
Cir. 2016) (reasoning that the question is not whether a
crime is a crime of violence but whether that crime, if
committed while brandishing a firearm, is a crime of
violence); see also Answer (Doc. 89) at 20-21. Maybe
using a firearm as a weapon to compel someone to assist tax
fraud should qualify as using a firearm during and
in relation to a crime of violence under § 924(c)(1)(A).
whether it should or not is not an open question. The Ninth
Circuit has long required courts use the categorical approach
to interpret § 924(c)(3) just as they interpret §
924(e)(2)(B) and § 16. See United States v.
Benally, 843 F.3d 350, 352 (9th Cir. 2016); United
States v. Amparo, 68 F.3d 1222, 1224-26 (9th Cir. 1995).
Section 924(c) only penalizes those who use a firearm to
commit some crimes. For the penalty to apply, the
predicate crime to a § 924(c) conviction must
always be a "crime of violence,"
regardless of how a particular defendant might commit the
crime, and regardless of whether a firearm is used or carried
or possessed in furtherance of it. "A crime cannot
categorically be a 'crime of violence' if the statute
of conviction punishes any conduct not encompassed by the
statutory definition of a 'crime of violence.'"
Benally, 843 F.3d at 352.
next question is whether second-degree murder, as defined in
federal law, is a "crime of violence," either
because it "has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another," or because, "by its nature,
[it] 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).
To answer this question, the Court must use the categorical
The Residual Clause, § 924(c)(3)(B)
murder always "involves a substantial risk that physical
force against the person ... of another may be used in the
course of committing the offense." 18 U.S.C. §
924(c)(3)(B). Causing someone's death even without an
intent to kill, and even while trying not to harm or kill,
may be second-degree murder. But even when murder is not done
intentionally, it always involves strong forces, either in a
gross physical sense, as when a drunk driver strikes a
pedestrian, or in a minute chemical sense, as in a poisoning.
And even if "use" has a specific meaning (more on
that below), the residual clause only requires a
substantial risk that force may be used,
not that it must be used or attempted or threatened every
where Birdinground's reliance on Johnson comes
in. Johnson concerned a phrase in §
924(e)(2)(B) (the "Armed Career Criminal Act," or
"ACCA"), defining a "violent felony" as a
felony that "is burglary, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another." 18 U.S.C. § 924(e)(2)(B)(ii).
Johnson held the italicized portion, commonly called
the residual clause, unconstitutionally vague.
U.S.C. § 16(b) is a similar though not identical clause
to § 924(c)(3)(B). Section 16(b) defines a "crime
of violence" as a felony "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" On April
17, 2018, the United States Supreme Court affirmed the Ninth
Circuit Court of Appeals in holding that the residual clause
of § 16(b) is unconstitutionally vague under the rule of
Johnson. See Sessions v. Dimaya, No. 15-1498, slip
op. at 24-25 (U.S. Apr. 17, 2018).
after Dimaya, § 924(c)(3)(B) might not
necessarily be unconstitutionally vague, but it is in the
Ninth Circuit. Amparo and Benally hold that
§ 924(c)(3)(B) is applied by using categorical analysis,
and that method lies at the heart of Johnson and
Dimaya. As the Supreme Court succinctly explained in
Welch v. United States, __ U.S. __, 136 S.Ct. 1257
(2016), Johnson held that § 924(e)(2)(B)(ii)
"failed not because it adopted a 'serious potential
risk' standard but because applying that standard
under the categorical approach required courts to
assess the hypothetical risk posed by an abstract generic
version of the offense."Id. at 1262 (emphasis
added). Acknowledging that some crimes might be "clearly
risky," the Court nevertheless held the clause
unconstitutionally vague and unenforceable in any case.
See Johnson, 135 S.Ct. at 2560-61.
in Dimaya, the Supreme Court said:
[Section] 16(b) has the same two features that conspired to
make ACCA's residual clause unconstitutionally vague. It
too requires a court to picture the kind of conduct that the
crime involves in the ordinary case, and to judge whether
that abstraction presents some
not-well-specified-yet-sufficiently-large degree of risk. The
result is that § 16(b) produces, just as ACCA's
residual clause did, more unpredictability and arbitrariness
than the Due Process Clause tolerates.
Dimaya, No. 15-1498, slip op. at 11 (U.S. Apr. 17,
2018) (internal quotation marks, brackets, and citations
Court is not able to imagine how § 924(c)(3)(B), which
is textually identical to § 16(b) and also applied by
using categorical analysis, could be salvaged. At least in
the Ninth Circuit at this time, it is unconstitutionally
The Elements Clause, § 924(c)(3)(A)