United States v. Julious Bullock ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1013
___________
UNITED STATES OF AMERICA
v.
JULIOUS BULLOCK,
Appellant
___________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4-16-cr-00264-001)
District Judge: Honorable Matthew W. Brann
___________
Submitted March 2, 2020
Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE,
Circuit Judges.
(Filed: August 11, 2020)
Christy Martin
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Attorney for Appellant Julious Bullock
Robert O’Hara
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Attorney for Appellee United States of America
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
The question presented is whether 18 U.S.C. § 111(b)—
assaulting, resisting, or impeding certain officers or employees
of the United States—is categorically a crime of violence under
§ 4B1.1 of the United States Sentencing Guidelines. We hold
that it is.
I
Following an altercation with a correctional officer at
the United States Penitentiary in Lewisburg in 2016, Julious
Bullock pleaded guilty to knowingly and intentionally forcibly
assaulting, resisting, opposing, impeding, intimidating, and
interfering with a correctional officer in violation of 18 U.S.C.
§ 111(a) and (b). At sentencing, the District Court adopted the
2
Presentence Investigation Report’s (PSR) Guidelines
calculation in its entirety. Based on the Court’s determination
that Bullock qualified as a career offender under U.S.S.G.
§ 4B1.1, his Guidelines range was 151 to 188 months’
imprisonment. The Court gave Bullock a substantial
downward variance, imposing a sentence of 84 months’
imprisonment.
Bullock timely appealed, challenging the District
Court’s career offender designation. Bullock argues his
conviction under 18 U.S.C. § 111 is not categorically a crime
of violence.1
1
Relying on our precedent in United States v. Joseph,
730 F.3d 336, 341 (3d Cir. 2013), the Government argues
Bullock failed to preserve this argument in the District Court.
Id. at 342 (“[T]o preserve an argument and avoid waiver, the
argument[s] presented in the Court of Appeals must depend on
both the same legal rule and the same facts as the argument
presented in the District Court.”). Bullock raised the argument,
albeit briefly, in the objections he filed to the PSR. Crucially,
Bullock also maintains the District Court discussed and ruled
upon his argument during an unrecorded telephone conference
improperly excluded from the record. See App. 105
(referencing the “sentencing conference held on this matter”).
At sentencing, Bullock’s counsel noted “Bullock [] simply
wants to make sure that Your Honor is aware that the objection
for the career offender is still outstanding from the defense.”
App. 171–72. The Court responded it thought it had made a
ruling on that and it was a matter Bullock could “certainly take
up with the Court of Appeals.” Id. at 172. Taken together, the
record indicates Bullock’s objections were discussed and ruled
upon. So the argument was preserved.
3
II
Before he pleaded guilty in this case, Bullock had two
prior convictions for robbery in North Carolina. The District
Court found—and Bullock does not contest—that those
convictions corresponded to generic robbery under U.S.S.G.
§ 4B1.2(a)(2). So Bullock is a career offender if his conviction
in this case is a crime of violence. Section 111 states:
(a) 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 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.
(b) Enhanced penalty.--Whoever, in the
commission of any acts described in subsection
(a), uses a deadly or dangerous weapon
(including a weapon intended to cause death or
danger but that fails to do so by reason of a
defective component) or inflicts bodily injury,
shall be fined under this title or imprisoned not
more than 20 years, or both.
4
18 U.S.C. § 111.
Since subsections (a) and (b) carry different
punishments, subsection (b) constitutes a different offense.
United States v. Henderson, 841 F.3d 623, 630 (3d Cir. 2016).
Accordingly, the Government argues that § 111 is divisible and
the modified categorical approach applies. Bullock has not
argued that § 111 is indivisible, Bullock Reply Br. 8., and does
not mention the modified categorical approach in either of his
briefs. But he acknowledges—consistent with our prior
decision in United States v. McCulligan, 256 F.3d 97 (3d Cir.
2001)—that “Section 111 sets forth three separate crimes for
the use of varied forcible conduct.” Bullock Br. 9. In
McCulligan, we held that “§§ 111(a) and 111(b) create three
separate offenses: simple assaults, other ‘non-simple’ assaults
not involving a dangerous weapon or injury, and assaults that
involve a dangerous weapon or cause injury.” 256 F.3d at 102
(citation omitted).2
Because § 111 creates three separate offenses, we join
several of our sister circuits and hold that § 111 is divisible. See
United States v. Bates, 960 F.3d 1278, 1286 (11th Cir. 2020)
(“Thus, the statute is divisible, and the modified categorical
approach applies.”); United States v. Kendall, 876 F.3d 1264,
1269 (10th Cir. 2017) (“[W]e conclude the statute is divisible
as a whole.”); United States v. Taylor, 848 F.3d 476, 492 (1st
Cir. 2017) (holding the statute “is plainly divisible”); United
States v. Rafidi, 829 F.3d 437, 445 (6th Cir. 2016) (holding
2
In McCulligan, we did not have occasion to consider
whether assaultive conduct is always required under § 111 and
we do not reach that issue today.
5
§ 111 “sets forth ‘three separate crimes’”) (citation omitted);
United States v. Hernandez-Hernandez, 817 F.3d 207, 212 (5th
Cir. 2016) (“But the parties agree, and our cases confirm, that
§ 111 is divisible.”); see also United States v. Juvenile Female,
566 F.3d 943, 947 (9th Cir. 2009) (“The appropriate question
before us, therefore, is whether an ‘assault involving a deadly
or dangerous weapon or resulting in bodily injury,’ under 18
U.S.C. § 111, is, categorically, a crime of violence.” ). So we
will apply the modified categorical approach. United States v.
Ramos, 892 F.3d 599, 606–07 (3d Cir. 2018).
The modified categorical approach requires us to
determine which subsection of § 111 Bullock violated. To do
so, we inquire into the record of conviction “solely to
determine the particular subpart under which the [defendant]
was convicted.” Jean-Louis v. Att’y Gen., 582 F.3d 462, 474
n.16 (3d Cir. 2009) (citations omitted). The analysis then
proceeds in the same manner as under the traditional
categorical approach.
Guidelines § 4B1.1 provides that a defendant is a career
offender if, among other factors, the “instant offense of
conviction is a felony that is either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1(a). Section
4B1.2(a)(1) then defines a “crime of violence” as any offense
punishable by more than one year in prison which “has as an
element the use, attempted use, or threatened use of physical
force against the person of another.” U.S.S.G. § 4B1.2(a)(1).
This provision is known as the elements clause. See United
States v. Wilson, 880 F.3d 80, 83 n.2 (3d Cir. 2018).
In determining whether a specific offense qualifies as a
“crime of violence” under § 4B1.1, we “compare the elements
of the statute under which the defendant was convicted to the
6
[G]uidelines’ definition of crime of violence.” Id. at 83
(citation and internal quotation marks omitted). When
analyzing a statute under the elements clause, we must
determine whether “the use, attempted use, or threatened use
of physical force against another person is categorically an
element of the offense of conviction.” Ramos, 892 F.3d at 606
(citation omitted). If it is, then the conviction is for a “crime of
violence” under the Guidelines. Id.
Under the modified categorical approach, we look to the
record of conviction to determine whether Bullock violated
§ 111(a) or § 111(b). Mathis v. United States, 136 S. Ct. 2243,
2256 (2016) (explaining the modified categorical approach
permits courts to “review the record materials to discover
which of the enumerated alternatives played a part in the
defendant’s [] conviction”). Bullock pleaded guilty to a
violation of “18 U.S.C. §§ 111(a)&(b).” App. 7. The citation to
both subsections indicates subsection (b) “was the operative
statutory provision.” See Hernandez-Hernandez, 817 F.3d at
214 & n.7.
Subsection (b) carries an enhanced penalty for offenders
who use “a deadly or dangerous weapon” or who “inflict[]
bodily injury.” 18 U.S.C. § 111(b). Six circuit courts have
already held that subsection (b) is a crime of violence. See
Bates, 960 F.3d at 1285; Kendall, 876 F.3d at 1269–70; Taylor,
848 F.3d at 491–95; Rafidi, 829 F.3d at 445; Hernandez-
Hernandez, 817 F.3d at 217; Juvenile Female, 566 F.3d at 947–
48. Once again, we join the chorus. As the Tenth Circuit
succinctly explained in Kendall, “a conviction under § 111(b)
necessarily requires a finding the defendant intentionally used,
attempted to use, or threatened to use physical force against the
person of another.” 876 F.3d at 1270 (internal quotations marks
and alterations omitted) (quoting Hernandez-Hernandez, 817
7
F.3d at 217). Here, Bullock pleaded guilty to the enhanced
penalty under § 111(b).3
A defendant may violate § 111(b) by committing
forcible assault and either (1) using a deadly or dangerous
weapon, or (2) inflicting bodily injury. 18 U.S.C. § 111(b). In
the first scenario, a deadly or dangerous weapon includes “any
object which, as used or attempted to be used, may endanger
the life of or inflict great bodily harm on a person.” United
States v. Sanchez, 914 F.2d 1355, 1358–59 (9th Cir. 1990)
(collecting cases). “[T]he object’s latent capability . . . coupled
with the manner of its use, is determinative.” United States v.
Loman, 551 F.2d 164, 169 (7th Cir. 1977) (citation omitted).
“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.” Taylor, 848 F.3d at 494.
As the First Circuit aptly concluded, “this enhancement
necessarily requires the use or threat of force ‘capable of
3
Under both the unenhanced offense of § 111(a) and the
enhanced offense of § 111(b), the government must prove the
defendant acted “forcibly.” 18 U.S.C. § 111(a). “The element
of ‘forcible’ action can be met by a showing of either physical
contact with the federal agent, or by ‘such a threat or display
of physical aggression toward the officer as to inspire fear of
pain, bodily harm, or death.’” Taylor, 848 F.3d at 493 (quoting
Rafidi, 829 F.3d at 446). We need not decide here whether
either offense under § 111(a) qualifies as a crime of violence,
because Bullock pleaded guilty to the enhanced penalty under
§ 111(b).
8
causing physical pain or injury to another.’” Id. (quoting
Johnson v. United States, 559 U.S. 133, 140 (2010)).
In the second scenario, “[a]n assault that causes bodily
injury by definition involves the use of physical force.”
Kendall, 876 F.3d at 1270. The Supreme Court has defined
physical force as “violent force—that is, force capable of
causing physical pain or injury to another person.” Johnson,
559 U.S. at 140. A forcible assault causing bodily injury is a
“crime of violence” because it requires the use of physical
force. See Bates, 960 F.3d at 1287; Taylor, 848 F.3d at 494 (“If
a slap in the face counts as violent force under Johnson because
it is capable of causing pain or injury, a forcible act that injures
does, too, because the defendant necessarily must have
committed an act of force in causing the injury[.]”) (internal
citation and quotation marks omitted). The bottom line is that
a defendant who violates § 111(b) has used physical force
against the person of another, either through employing a
deadly or dangerous weapon or by inflicting bodily injury.
III
Relying on an Eighth Circuit case, United States v.
Murdock, 826 F.2d 771 (8th Cir. 1987), Bullock argues that
§ 111 is not a crime of violence because one can violate the
statute by indirectly causing bodily injury (i.e., without
physical force as defined by the Supreme Court in Johnson,
559 U.S. at 140), or by using a deadly or dangerous weapon to
interfere with an official, but without deploying or threatening
to deploy that weapon against the person of that officer.
In Murdock, a dispute over whether the defendant’s
cattle were allowed to graze on public land turned ugly. After
Murdock and a park ranger argued, Murdock “drove up on his
9
motorcycle, got into the [park ranger’s] jeep, and drove it away
from the gate.” Id. at 772. When the ranger ran back to the jeep
and “leaned in through the open window to try to pull the keys
out of the ignition[,] Murdock resisted her and tried to roll up
the window in the passenger door.” Id. He then “turned the
engine off, opened the hood, and pulled the distributor wire off
the distributor to disable the vehicle.” Id. Bullock interprets
this case to mean that the “forcible conduct” required by the
plain language of § 111 need not be directed “against the
person of another” as required by Guidelines §§ 4B1.1 and
4B1.2(a)(1).
Murdock is distinguishable from Bullock’s case. First
and most critically, at the time of Murdock’s conviction, § 111
did not contain separate subsections as it does now. Though it
did contain an unnamed enhanced penalty for use of a deadly
or dangerous weapon, there is no indication Murdock received
that enhanced penalty. In fact, Murdock received only a one-
year suspended jail term and two years of probation. Murdock,
826 F.2d at 772. So Murdock sheds no light on the current
version of § 111, which we (and six of our sister courts) have
held to be divisible.
We likewise disagree with Bullock’s broader argument,
supposedly illustrated by the facts in Murdock, that “[n]either
bodily injury nor use of a deadly weapon under § 111(b) need
have resulted from force used against the person.” Bullock Br.
12. The defendant’s forcible conduct must take the form of
either contact with the officer or else “such a threat or display
of physical aggression toward the officer as to inspire fear of
pain, bodily harm, or death.” Taylor, 848 F.3d at 493 (internal
quotation marks omitted). Contrary to Bullock’s assertion, the
force contemplated by the statute, in other words, must be
directed at the officer and the plain text of the statute makes
10
clear that the bodily injury must be “inflict[ed]” by the
defendant “in the commission of” the acts set forth in § 111(a).
This is only bolstered by the Supreme Court’s and our Court’s
rejection of Bullock’s attempted distinction between direct and
indirect force that results in bodily injury. United States v.
Castleman, 572 U.S. 157, 170 (2014) (“And the common-law
concept of ‘force’ encompasses even its indirect
application . . . . It is impossible to cause bodily injury without
applying force in the common-law sense.”); United States v.
Chapman, 866 F.3d 129, 132–33 (3d Cir. 2017) (“It is
important to note that the use of physical force does not require
that the person employing force directly apply harm to—i.e.,
strike—the victim.”) (emphasis in original); accord Rafidi, 829
F.3d at 446 (“[E]ven if the defendant [does] not come into
physical contact with the officers at all, the government still
must establish the ‘forcible’ element [required by § 111].”).
And it applies with equal force to the enhancement for a deadly
or dangerous weapon. The use of such a weapon “in the
commission of” an act that includes either the deployment of
force against an officer or the threat of force is plainly a crime
of violence.
* * *
For the reasons stated, we hold 18 U.S.C. § 111(b) is
categorically a crime of violence under the Sentencing
Guidelines. And because Bullock was properly designated a
career offender, we will affirm his judgment of sentence.
11