                                                                                     FILED
                                                                         United States Court of Appeals
                                        PUBLISH                                  Tenth Circuit

                      UNITED STATES COURT OF APPEALS                           August 14, 2020

                                                                            Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                               Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 17-2123
                                                (D.C. Nos. 1:16-CV-00596-MCA-SMV &
 DONOVAN MUSKETT,                                       1:13-CR-00980-MCA-1)
                                                               (D. N.M.)
       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                           for the District of New Mexico
                       (D.C. No. 1:16-CV-00596-MCA-SMV)
                       _________________________________

Aric G. Elsenheimer, Assistant Federal Public Defender, Albuquerque, New Mexico, for
Defendant - Appellant.

Jennifer M. Rozzini, Assistant United States Attorney (John C. Anderson, United States
Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff - Appellee.
                        _________________________________

Before BACHARACH, McHUGH, and EID, Circuit Judges.
                 _________________________________

McHUGH, Circuit Judge.
                    _________________________________


       In this 28 U.S.C. § 2255 case, Donovan Muskett appeals the denial of his motion

to vacate his federal conviction for brandishing a firearm in furtherance of a crime of

violence on the basis of the Supreme Court’s decision in United States v. Davis, 139
S. Ct. 2319 (2019) (invalidating the residual clause in 18 U.S.C. § 924(c)’s definition of a

“crime of violence” as unconstitutionally vague).

        The parties’ primary dispute on appeal is whether Mr. Muskett’s predicate federal

felony—assault with a dangerous weapon, 18 U.S.C. § 113(a)(3)—qualifies as a crime of

violence under the elements clause, 1 thereby rendering harmless the Davis defect in his

conviction. Mr. Muskett suggests that we must conduct this analysis using the law as it

existed at the time of his conviction because application of current law would violate due

process limits on the retroactive application of judicial decisions enlarging criminal

liability.

        As explained below, our precedent compels the conclusion that assault with a

dangerous weapon is categorically a crime of violence under the elements clause. And we

conclude that at the time of his offense, Mr. Muskett had fair notice that § 924(c)’s

elements clause could ultimately be construed to encompass his commission of assault

with a dangerous weapon. We thus affirm the district court’s denial of Mr. Muskett’s

§ 2255 motion.




        1
         The government’s briefing, as well as some lower court decisions, refer to the
definition of “crime[s] of violence” set forth at § 924(c)(3)(A) as the “force clause” rather
than the “elements clause.” See, e.g., App. Vol. I, at 53 (“[T]he United States only needs
to establish that one of these predicates is a crime of violence under the force clause.”). In
this opinion, we follow the Supreme Court’s convention in Davis of referring to that
definition as the “elements clause.”

                                                  2
                                   I.   BACKGROUND

                         A. Mr. Muskett’s Federal Conviction

       On August 22, 2013, a grand jury returned a superseding indictment that charged

Mr. Muskett with four counts: assault with a dangerous weapon in Indian Country under

18 U.S.C. § 113(a)(3); aggravated burglary in Indian Country (based on New Mexico’s

aggravated burglary statute by way of the federal Assimilative Crimes Act); using,

carrying, possessing, and brandishing a firearm during and in relation to and in

furtherance of a crime of violence under 18 U.S.C. § 924(c); and negligent child abuse in

Indian Country.

       On November 6, 2013, Mr. Muskett entered into a plea agreement pursuant to

Federal Rule of Criminal Procedure 11(c)(1)(C). 2 Under that agreement, Mr. Muskett

pleaded guilty only to the § 924(c) charge 3 (for using, carrying, possessing, and

brandishing a firearm in furtherance of a crime of violence), and the government agreed

to dismiss the three remaining counts. Pursuant to Rule 11(c)(1)(C), the parties agreed




       2
         Plea agreements reached under Rule 11(c)(1)(C) contain provisions requiring the
government to “agree that a specific sentence or sentencing range is the appropriate
disposition of the case, or that a particular provision of the Sentencing Guidelines, or
policy statement, or sentencing factor does or does not apply (such a recommendation or
request binds the court once the court accepts the plea agreement).”
       3
         To be convicted under § 924(c), a defendant need not be convicted of, or even
charged with, a predicate crime of violence. Rather, a violation of § 924(c) is complete
when a firearm is used, carried, possessed, or brandished in furtherance of a felony crime
of violence “for which the [defendant] may be prosecuted in a court of the United States.”
18 U.S.C. § 924(c)(1)(A) (emphasis added).

                                                 3
that, contingent on the district court’s acceptance of the plea agreement, Mr. Muskett

would be sentenced to an 84-month term of imprisonment.

       On March 11, 2014, the district court accepted Mr. Muskett’s plea and sentenced

him to 84 months of imprisonment followed by a three-year term of supervised release. 4

                        B. Mr. Muskett’s § 2255 Proceedings

       On June 16, 2016, just under a year after the Supreme Court invalidated the

Armed Career Criminal Act’s residual clause definition of “violent felony” in Johnson v.

United States, 135 S. Ct. 2551 (2015), Mr. Muskett filed a 28 U.S.C. § 2255 motion

seeking to vacate his conviction and to “set this matter for resentencing on the remaining

counts of the indictment.” App. Vol. I, at 31–42. Mr. Muskett argued that the residual

clause invalidated by Johnson was “materially indistinguishable from the residual clause

under [§] 924(c),” and thus § 924(c)’s residual clause was similarly unconstitutional.

App. Vol. I, at 34. Mr. Muskett further asserted that none of his predicate, dismissed

charges qualified as crimes of violence under § 924(c)’s elements clause, and thus his

conviction could not be sustained under that definition.

       On June 2, 2017, the magistrate judge to whom Mr. Muskett’s § 2255 motion had

been referred issued proposed findings and a recommendation that Mr. Muskett’s motion


       4
         According to the Bureau of Prisons’ Inmate Locator, of which we may take
judicial notice, Mr. Muskett was released from prison on February 14, 2020. His release
did not moot his § 2255 motion challenging his conviction, however, because if he were
successful before us, his conviction would be vacated entirely, thereby eliminating his
three-year term of supervised release—which portion of his sentence also continues to
satisfy the “in custody” requirement of § 2255. See United States v. Cervini, 379 F.3d
987, 989 n.1 (10th Cir. 2004).

                                                4
be denied. The magistrate judge concluded that even if § 924(c)’s residual clause was

invalid, Mr. Muskett’s commission of assault with a dangerous weapon (as criminalized

by 18 U.S.C. § 113(a)(3)) satisfied the elements clause.

       Mr. Muskett timely objected to the magistrate’s conclusion that his conviction

could be sustained under the elements clause, but on July 6, 2017, the district judge

overruled that objection, adopted the magistrate’s findings and recommended disposition,

denied Mr. Muskett’s § 2255 motion, and declined to issue a Certificate of Appealability

(“COA”).

       Following a timely notice of appeal, Mr. Muskett filed his opening brief in this

court in which he sought a COA. In March of 2019, the Clerk’s office entered an order

abating Mr. Muskett’s appeal pending resolution of our then-pending appeal in United

States v. Bowen, a case already abated pending the Supreme Court’s resolution of Davis.

       In June of 2019, the Supreme Court issued its decision in Davis, invalidating

§ 924(c)’s residual clause as “unconstitutionally vague.” 5 139 S. Ct. at 2336. In

September of 2019, we issued our decision in Bowen, concluding that “Davis’s new rule


       5
         In its response brief, the government asserted, and then seemingly withdrew, a
challenge to the timeliness of Mr. Muskett’s § 2255 motion on grounds that he failed to
file a new motion after the Supreme Court issued its decision in Davis, and that he was
required to do so to avail himself of the limitations period prescribed by § 2255(f)(3). See
28 U.S.C. § 2255(f)(3) (providing a one-year limitations period that begins to run on “the
date on which the right asserted was initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court and made retroactively applicable
to cases on collateral review”). After the panel sought clarification at oral argument, the
government explicitly relinquished its right to invoke timeliness as a bar to Mr. Muskett’s
§ 2255 motion. Oral Argument at 38:32–38:42. We accept that concession.


                                                 5
is substantive and therefore retroactively applicable to cases on collateral review.” United

States v. Bowen, 936 F.3d 1091, 1100 (10th Cir. 2019).

       Shortly after our decision in Bowen, we entered an order lifting the abatement in

this appeal and granting Mr. Muskett a broad COA encompassing the entirety of the

district court’s denial of his § 2255 motion. We further ordered supplemental briefing to

permit the parties to address the effect of Bowen and Davis on Mr. Muskett’s entitlement

to post-conviction relief.

                                    II.   DISCUSSION

       Under 28 U.S.C. § 2255(a),

       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.

Pursuant to this statute, Mr. Muskett seeks to vacate his conviction based on the Supreme

Court’s invalidation of § 924(c)’s residual clause definition of a “crime of violence.” See

Davis, 139 S. Ct. at 2336. The government counters that Mr. Muskett’s predicate federal

felony—assault with a dangerous weapon—separately satisfies § 924(c)’s elements

clause definition, and thus any Davis infirmity in Mr. Muskett’s conviction is harmless.

       “On appeal from the denial of a § 2255 motion, . . . we review the district court’s

findings of fact for clear error and its conclusions of law de novo.” United States v.

Snyder, 871 F.3d 1122, 1125 (10th Cir. 2017) (internal quotation marks omitted).

Because the parties’ dispute on appeal is purely legal, our review is de novo.

                                                 6
       To prevail on appeal, Mr. Muskett must establish that his conviction cannot be

sustained under § 924(c)’s elements clause. 6 Under § 924(c)’s elements clause, an

offense is a crime of violence if it “has as an element the use, attempted use, or

threatened use of physical force against the person or property of another.” 18 U.S.C.

§ 924(c)(3)(A). To determine whether Mr. Muskett’s commission of assault with a

dangerous weapon qualifies as a crime of violence under the elements clause, we apply

the categorical approach. See Bowen, 936 F.3d at 1102. Under that framework, we must

first identify the minimum force required to commit the crime of assault with a dangerous

weapon, and then “determine if that force categorically fits the definition of physical

force.” United States v. Ontiveros, 875 F.3d 533, 535–36 (10th Cir. 2017) (quotation

marks omitted).

       According to Mr. Muskett, we must decide whether his crime falls within the

elements clause based on the law as it existed at the time he committed it. To better

contextualize Mr. Muskett’s argument concerning retroactive application of current law,

we begin our analysis by tracing the development of precedent from this court and the


       6
         As with collateral attacks based on the Supreme Court’s invalidation of the
residual clause contained in the Armed Career Criminal Act, see Johnson v. United
States, 135 S. Ct. 2551 (2015), our analysis of a motion seeking relief on the basis of
Davis proceeds in two stages. “The first question asks, as a matter of historical fact,
whether the sentencing court relied on [§ 924(c)’s] residual clause” in accepting the plea
and imposing a sentence. See United States v. Lewis, 904 F.3d 867, 872 (10th Cir. 2018)
(emphasis in original). Only if the answer is yes do we proceed to the second stage, a
harmless error analysis that asks whether the movant’s predicate crime separately
qualifies under § 924(c)’s still-valid elements clause. See id. We conduct only the second
inquiry here because the government concedes Mr. Muskett has established that his
conviction rested on § 924(c)’s residual clause.

                                                 7
Supreme Court interpreting “physical force” as used in various federal statutes and the

United States Sentencing Guidelines (the “Guidelines”).

                A. Changes in the Interpretation of “Physical Force”

       Now, as in 2013 when Mr. Muskett brandished a firearm in furtherance of the

crime of assault with a dangerous weapon, the “force” component in “physical force”

refers to “violent force—that is, force capable of causing physical pain or injury to

another person.” Johnson v. United States (Curtis Johnson), 559 U.S. 133, 140 (2010).

As indicated by the presence of “capable” in that definition, violent force “does not

require any particular degree of likelihood or probability that the force used will cause

physical pain or injury; only potentiality.” Stokeling v. United States, 139 S. Ct. 544, 554

(2019). And now, as in 2013, “physical” refers to the type of force employed: “force

exerted by and through concrete bodies—distinguishing physical force from, for

example, intellectual force or emotional force.” Curtis Johnson, 559 U.S. at 138.

       But while these definitions were static both before and after Mr. Muskett’s

conduct, our precedent addressing whether such “physical force” must be applied directly

to the person or property of another to qualify under the elements clause was not. That is,

whether persons employ “physical force” when they do not directly impart such force

onto the person or property of another (by, for example, poisoning another’s drink) has

undergone some revision, at least in this court, in the period following Mr. Muskett’s

offense.

       In United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005), overruled by

Ontiveros, 875 F.3d 533, we analyzed whether Colorado’s crime of third-degree assault

                                                 8
was categorically a crime of violence so as to qualify for a sentencing enhancement under

the Guidelines. 7 We explained that the predicate Colorado crime was committed when a

defendant “knowingly or recklessly causes bodily injury to another person or with

criminal negligence he causes bodily injury to another person by means of a deadly

weapon.” Id. at 1285 (quoting Colo. Rev. Stat. § 18-3-204). And we noted that

Colorado’s statute focused on the result of the defendant’s conduct (“bodily injury to

another”), and as such could be violated by “recklessly shooting a gun in the air to

celebrate, intentionally placing a barrier in front of a car causing an accident, or

intentionally exposing someone to hazardous chemicals.” Id. at 1286.

       By contrast, we explained, the Guidelines’ definition of “crime of violence”

focused on the means “by which an injury occurs (the use of physical force).” Id. at 1285;

accord United States v. Rodriguez-Enriquez, 518 F.3d 1191, 1194 (10th Cir. 2008)

(“[T]he adjective physical must refer to the mechanism by which the force is imparted to

the ‘person of another.’”), overruled by Ontiveros, 875 F.3d 533. We thus concluded that

Colorado third-degree assault could be committed, as in one of the above hypotheticals,

without the use of direct physical force, and was therefore “not categorically a crime of

violence under [the Guidelines].” Perez-Vargas, 414 F.3d at 1287.




       7
        The Guidelines’ elements definition of “crime of violence” is indistinguishable
from the elements clause in § 924(c) except that the Guidelines’ definition is limited to
“physical force against the person of another,” U.S.S.G. § 2L1.2 cmt. n.2, whereas
§ 924(c) encompasses “physical force against the person or property of another,”
§ 924(c)(3)(A) (emphasis added).

                                                  9
       In March of 2014—just one week after the sentencing court entered final judgment

on Mr. Muskett’s conviction—the Supreme Court issued its decision in United States v.

Castleman, 572 U.S. 157 (2014). In that case, the Court resolved a circuit split regarding

the level of force required to commit a “misdemeanor crime of domestic violence.” See

18 U.S.C. § 921(a)(33)(A)(ii). Specifically, the Court interpreted the term “physical

force” in that statute’s elements clause 8 to mean “the common-law meaning of ‘force.’”

Castleman, 572 U.S. at 168. And the Court reiterated its conclusion from Curtis Johnson

that “‘physical force’ is simply ‘force exerted by and through concrete bodies,’ as

opposed to ‘intellectual force or emotional force.’” Id. at 170 (quoting Curtis Johnson,

559 U.S. at 138). Under this expansive definition, “the common-law concept of ‘force’

encompasses even its indirect application” and will be satisfied “by administering a

poison or by infecting with a disease, or even by resort to some intangible substance,

such as a laser beam.” Id. (internal quotation marks omitted). “It is impossible,” the Court

concluded, “to cause bodily injury without applying force in the common-law sense.” Id.

       In light of Castleman’s expansive interpretation of “physical force,” we overruled

Perez-Vargas’s direct-indirect distinction in Ontiveros, explaining that Perez-Vargas had



       8
         The elements clause definition of a domestic crime of violence is generally
similar to § 924(c)’s elements clause, at least insofar as its “physical force” requirement
is concerned. A “domestic crime of violence” is defined as an offense that “has, as an
element, the use or attempted use of physical force, or the threatened use of a deadly
weapon, committed by a current or former spouse, parent, or guardian of the victim, by a
person with whom the victim shares a child in common, by a person who is cohabiting
with or has cohabited with the victim as a spouse, parent, or guardian, or by a person
similarly situated to a spouse, parent, or guardian of the victim.”

                                                10
“relied on reasoning that is no longer viable.” Id. at 536, 538 (“To the extent that Perez-

Vargas holds that indirect force is not an application of ‘physical force,’ that holding is

no longer good law.”). We also expressly extended Castleman’s interpretation “to the

‘physical force’ requirement as used in a felony crime of violence.” Id. at 537.

       In sum, after Ontiveros, an offense will qualify as a “crime of violence” under

§ 924(c)(3)(A) if it “has as an element the use, attempted use, or threatened use” of

physical force (as opposed to intellectual or emotional force), applied directly or

indirectly, that is capable of causing physical pain or injury to “the person or property of

another.” See § 924(c)(3)(A). With this definition in mind, we next analyze the minimum

force required to commit assault with a dangerous weapon, 18 U.S.C. § 113(a)(3).

                B. The Elements of Assault with a Dangerous Weapon

       Title 18, U.S. Code § 113(a) criminalizes eight variations of assault. In United

States v. Hathaway, 318 F.3d 1001, 1008 (10th Cir. 2003), we defined assault in § 113(a)

“as either an attempted battery or as placing another in reasonable apprehension of

immediate bodily harm.” Specifically, we explained, assault under § 113(a) is committed

by “either a willful attempt to inflict injury upon the person of another, or by a threat to

inflict injury upon the person of another which, when coupled with an apparent present

ability, causes a reasonable apprehension of immediate bodily harm.” 9 Id. (quotation



       9
         In his supplemental opening brief, Mr. Muskett suggests that assault under
§ 113(a) can be committed by a mere “offensive touching.” Aplt.’s Suppl. Br. at 17. But
we have long held that assault as used in § 113(a) requires an attempt or threat to “inflict
injury.” See, e.g., United States v. Joe, 831 F.2d 218, 220 (10th Cir. 1987).

                                                 11
marks omitted); accord United States v. Verwiebe, 874 F.3d 258, 261 (6th Cir. 2017)

(“[A]n individual may violate § 113 by (1) willfully attempting to inflict injury on

another person or (2) threatening to inflict injury on another person, causing a reasonable

apprehension of immediate bodily harm.”).

          Subsection (a)(3)—assault with a dangerous weapon—adds two elements to the

above definition: first, the presence of a dangerous weapon, and second, the intent to do

bodily harm. 18 U.S.C. § 113(a)(3) (“Assault with a dangerous weapon, with intent to do

bodily harm, [is punishable] by a fine under this title or imprisonment for not more than

ten years, or both.”).

          Combining the elements of assault with the additional elements prescribed by

subsection (a)(3), the crime of assault with a dangerous weapon is committed when a

person either (1) willfully attempts to inflict injury upon another person with a dangerous

weapon and with the intent to do bodily harm, or (2) threatens to inflict injury upon the

person of another with a dangerous weapon and with the intent and apparent present

ability to do so, thereby causing reasonable apprehension of immediate bodily harm.

          Under this definition, assault with a dangerous weapon cannot be committed

without the “attempted use, or threatened use of physical force against the person or

property of another.” See 18 U.S.C. § 924(c)(3)(A). Stated simply, if one has attempted

or threatened to inflict injury upon another person (thereby committing federal criminal

assault), he has attempted or threatened physical force capable of causing physical pain or

injury.



                                                 12
       Mr. Muskett maintains that a conviction under § 113(a)(3) can be sustained

without the use of “violent force—that is, force capable of causing physical pain or injury

to another person.” Curtis Johnson, 559 U.S. at 140. In support, he points to United

States v. Spotted Horse, 916 F.3d 686, 689 (8th Cir. 2019), an appeal from a jury verdict

convicting the defendant of three counts of assault with a dangerous weapon for beating

the victim with a plastic spoon, a plastic blind wand (with which he struck the victim

“numerous times across the back . . . as she screamed, cried, and begged him to stop”),

and a plastic hanger (with which he struck the victim “across the back until the hanger

broke”). The issues on appeal in Spotted Horse did not relate to the degree of force

required to commit assault with a dangerous weapon. But even with the decision’s sparse

description of the conduct, we easily conclude the force employed fell safely within the

definition of “physical force”—repeatedly striking another person across the back with

various plastic implements is plainly “capable of causing physical pain or injury.” Curtis

Johnson, 559 U.S. at 140.

       Mr. Muskett’s arguments to the contrary appear to be premised on an overreading

of Curtis Johnson, suggesting that “physical force” requires resultant “serious physical

injury.” Aplt.’s Suppl. Br. at 18 (emphasis added). But no such degree-of-injury

requirement exists. Rather, a person exerts physical force when the force applied is

“capable of causing physical pain or injury to another person.” Curtis Johnson, 559 U.S.

at 140; see also Stokeling, 139 S. Ct. at 554 (“[Curtis] Johnson . . . does not require any

particular degree of likelihood or probability that the force used will cause physical pain

or injury; only potentiality.”).

                                                 13
       In sum, the crime of assault with a dangerous weapon cannot be committed

without the use, attempted use, or threatened use of physical force capable of causing,

directly or indirectly, physical pain or injury. Mr. Muskett’s commission of that offense is

therefore categorically a crime of violence under § 924(c)’s elements clause.

                        C. Mr. Muskett’s Fair Notice Challenge

       Mr. Muskett argues that we should decline to apply Ontiveros (in which we

overruled our previously recognized distinction between direct and indirect physical

force) because that case was decided after his commission of assault with a dangerous

weapon. To give it retroactive effect, Mr. Muskett suggests, would be to deprive him of

his due process right to have fair notice of what the law proscribes.

       Mr. Muskett characterizes this challenge as an ex post facto attack. But the Ex

Post Facto Clause, appearing in Article I of the Constitution, “is a limitation upon the

powers of the Legislature and does not of its own force apply to the Judicial Branch of

government.” Marks v. United States, 430 U.S. 188, 191 (1977) (citation omitted); see

U.S. Const. art. I, § 9, cl. 3 (“No . . . ex post facto Law shall be passed.”). It is the Due

Process Clause of the Fifth Amendment that imposes “limitations on ex post facto

judicial decisionmaking.” Rogers v. Tennessee, 532 U.S. 451, 456 (2001).

       Under the Due Process framework, “[i]f a judicial construction of a criminal

statute is unexpected and indefensible by reference to the law which had been expressed

prior to the conduct in issue, it must not be given retroactive effect.” Bouie v. City of

Columbia, 378 U.S. 347, 354 (1964) (internal quotation marks omitted). “[A]lthough

clarity at the requisite level may be supplied by judicial gloss on an otherwise uncertain

                                                  14
statute, due process bars courts from applying a novel construction of a criminal statute to

conduct that neither the statute nor any prior judicial decision has fairly disclosed to be

within its scope.” United States v. Lanier, 520 U.S. 259, 266 (1997) (citations omitted).

“[T]he touchstone is whether the statute, either standing alone or as construed, made it

reasonably clear at the relevant time that the defendant’s conduct was criminal.” Id. at

267.

       Retroactive application of Castleman and Ontiveros does not offend these

principles for three reasons. First, at the broadest level, the enlargement effected by

Castleman—and Ontiveros in turn—is a far cry from the kind of “novel” constructions

found by the Supreme Court to deprive a defendant of fair notice. For example, in Bouie,

the defendants had been convicted of violating a state statute criminalizing “entry upon

the lands of another . . . after notice from the owner or tenant prohibiting such entry.” 378

U.S. at 349–50 (quoting the then-existing version of South Carolina’s criminal trespass

statute). But the defendants were convicted of that offense not for having entered

premises in the face of notice prohibiting entry, but rather for having remained on

premises after being told to leave. Id. After the conduct giving rise to defendants’

convictions, the South Carolina Supreme Court “construed the statute to cover not only

the act of entry on the premises of another after receiving notice not to enter, but also the

act of remaining on the premises of another after receiving notice to leave.” Id. at 350.

       The retroactive application of this interpretation, the Supreme Court held,

“violated the requirement of the Due Process Clause that a criminal statute give fair

warning of the conduct which it prohibits.” Id. Crucial to the Court’s holding was the fact

                                                 15
that the statutory language had evinced no ambiguity—the statute was “on its face . . .

definite and precise.” Id. at 353; see Marks, 430 U.S. at 195 (explaining that in Bouie,

“[t]he statutory language . . . was ‘narrow and precise,’ and that fact was important to our

holding that the expansive construction adopted by the State Supreme Court deprived the

accused of fair warning” (quoting Bouie, 378 U.S. at 352)). Indeed, the Court noted, any

“uncertainty as to the statute’s meaning [wa]s itself not revealed until the [state supreme]

court’s decision.” Bouie, 378 U.S. at 352.

       Compounding the notice deficiency was the fact that the enlarged construction,

“so clearly at variance with the statutory language, ha[d] not the slightest support in prior

South Carolina decisions.” Id. at 356. To the contrary,

       in the 95 years between the enactment of the statute in 1866 and [the
       expansive construction adopted in] 1961 . . . , the South Carolina cases
       construing the statute uniformly emphasized the notice-before-entry
       requirement, and gave not the slightest indication that the requirement
       could be satisfied by proof of the different act of remaining on the land
       after being told to leave.

Id. at 356–57.

       By contrast, the language at issue here—“physical force”—cannot be said to have

been “on its face . . . definite and precise,” see id. at 353, nor was there an absence of

judicial decisions revealing the direct-indirect ambiguity. Indeed, as explained in more

detail below, federal courts have grappled with the uncertainty apparent on the face of the

statute and have arrived at conflicting conclusions as to whether “physical force”

encompasses indirect application. Thus, far from construing an unambiguous statute in

unexpected and indefensible ways, Castleman (and our resulting correction in Ontiveros)


                                                 16
merely “supplied . . . judicial gloss on an otherwise uncertain statute.” See Lanier, 520

U.S. at 266.

       Second, the Supreme Court’s opinion in Curtis Johnson—decided nearly three

years before the conduct that forms the basis of Mr. Muskett’s conviction—provided

notice that the logic of Perez-Vargas rested on shaky foundations. In Curtis Johnson, the

Supreme Court undertook an exhaustive interpretive dive into “physical force” as used in

the Armed Career Criminal Act. Curtis Johnson, 559 U.S. at 138–42. The Court

explained that “physical” “plainly refers to force exerted by and through concrete

bodies—distinguishing physical force from, for example, intellectual force or emotional

force.” Id. at 138. And in Castleman, the Supreme Court indicated that this portion of

Curtis Johnson had, in part, foreclosed the logic we adopted in Perez-Vargas. 10

       The District Court [in this case] . . . reason[ed] that one can cause bodily
       injury “without the ‘use of physical force’”—for example, by “deceiving
       [the victim] into drinking a poisoned beverage, without making contact of
       any kind.” But as we explained in [Curtis] Johnson, “physical force” is
       simply “force exerted by and through concrete bodies,” as opposed to
       “intellectual force or emotional force.”

Id. at 170 (fourth alteration in original) (record citation omitted) (quoting Curtis Johnson,

559 U.S. at 138). Thus, although it did not specifically reject the direct-indirect

distinction accepted by Perez-Vargas the way Castleman ultimately did, Curtis Johnson

provided fair notice that “physical” did not refer to the physical relationship, as a



       10
         Although the Supreme Court decided Castleman after Mr. Muskett’s conduct, it
relied heavily on the reasoning of Curtis Johnson, which was available before the
conduct that forms the basis of the conviction here.

                                                 17
proximal matter, between the person imparting the force and the victim receiving it, but

was rather used to distinguish the type of force (i.e., neither intellectual nor emotional)

capable of causing physical pain or injury. And that construction provided sufficient

notice that “physical force” might include any exertion of physical force (directly or

indirectly) capable of causing physical pain or injury to another person, and that our

previous interpretation to the contrary was incorrect.

       The dissent downplays the degree to which Curtis Johnson’s interpretation of

“physical force” cast doubt on the viability of our earlier opinions embracing the direct-

indirect distinction, asserting that neither Curtis Johnson nor our earlier opinions

“need[ed]” to opine on the proper interpretation of “physical” as used in “physical force.

Dissent at 6–7. We respectfully disagree. In Rodriguez-Enriquez, 518 F.3d at 1191, 1194,

1195, we found the reasoning of Perez-Vargas “instructive” in reaching the conclusion

that “assault two (drugging a victim) under Colorado law” was not a crime of violence

because “injury effected by chemical action on the body (as in poisoning or exposure to

hazardous chemicals) should not be described as caused by physical force.” But aside

from the “instructi[on]” of Perez-Vargas, our conclusion in Rodriguez-Enriquez was

supported exclusively by an interpretation of “physical force” that was subsequently

flatly rejected by Curtis Johnson. Compare Rodriguez-Enriquez, 518 F.3d at 1194

(concluding that “the adjective physical must refer to the mechanism by which the force

is imparted to the ‘person of another’” because it “seems highly unlikely” that it “is being

used to distinguish the described force from a force generated by emotion, psychology,

religion, or rhetoric”), with Curtis Johnson, 559 U.S. at 138 (“The adjective ‘physical’

                                                 18
. . . . plainly refers to force exerted by and through concrete bodies—distinguishing

physical force from, for example, intellectual force or emotional force.”). Given the

centrality of our erroneous interpretation of “physical force” to the disposition of

Rodriguez-Enriquez, an individual seeking to assure himself that he could impart indirect

physical force capable of causing physical pain or injury upon another person without

triggering criminal liability under § 924(c) would be rightly concerned by Curtis

Johnson’s clear repudiation of our interpretation.

       Indeed, at oral argument, Mr. Muskett focused our attention on the interpretation

adopted by Rodriguez-Enriquez, arguing he was entitled to rely on that opinion’s

“thorough analysis of . . . the term ‘physical force’” and its resulting conclusion that

“physical” does not refer to the effect of the force. Oral Argument at 4:30–4:45. We

might be inclined to agree if the interpretation we rejected in Rodriguez-Enriquez as

“highly unlikely” had not been subsequently adopted by the Supreme Court in Curtis

Johnson. See Rodriguez-Enriquez, 518 F.3d at 1194. Thus, even if the dissent is correct

that Mr. Muskett should be entitled to rely on settled in-circuit precedent notwithstanding

an out-of-circuit opinion resolving the categorical question against him, there was

nothing “settled” about Perez-Vargas and Rodriguez-Enriquez following the Court’s

unambiguous rejection of our interpretation of “physical force” in Curtis Johnson.

       Third, the Supreme Court instructs that the existence of a circuit split on the scope

of a criminal statute is sufficient to supply defendants with fair notice that the broader

construction might ultimately be adopted, even when the defendant’s circuit has adopted

the more narrow interpretation. In United States v. Rodgers, 466 U.S. 475, 484 (1984),

                                                 19
after construing the reach of a criminal statute against the defendant and contrary to the

interpretation previously adopted by the circuit in which his case arose, the Supreme

Court concluded that “any argument . . . against retroactive application to him of our

present decision . . . would be unavailing since the existence of conflicting cases from

other Courts of Appeals made review of that issue by this Court and decision against the

position of the [defendant] reasonably foreseeable.” 11

       In 2009—almost four years before the conduct giving rise to the instant

indictment—the Ninth Circuit decided United States v. Juvenile Female, 566 F.3d 943,

947 (9th Cir. 2009). In that case, after articulating the elements of assault with a

dangerous weapon consistent with our definition above, the Ninth Circuit applied the

categorical approach to conclude that “[a] defendant charged with . . . assault with . . . a

dangerous weapon[] must have always ‘threatened [the] use of physical force,’ because

he or she will have either made a ‘wil[l]ful attempt to inflict injury’ or a ‘threat to inflict

injury.’” Id. at 948 (fifth alteration in original) (first quoting 18 U.S.C. § 16(a); and then

quoting United States v. Chapman, 528 F.3d 1215, 1219–20 (9th Cir. 2008)).




       11
          The dissent relies on a law review article that advocates, as a normative matter,
“for an alternative to the Rodgers rule.” See Trevor W. Morrison, Fair Warning and the
Retroactive Judicial Expansion of Federal Criminal Statutes, 74 S. Cal. L. Rev. 455, 460
(2001). The article is no doubt well-written and informative, but our task in this case is to
apply the law as it has been announced by the Supreme Court, and as the article’s author
concedes, the law, as a descriptive matter, is “that an individual may rely on Supreme
Court precedent declaring his conduct to be outside the reach of a criminal statute, but
may not rely on settled court of appeals precedent saying the same thing.” Id.

                                                  20
       The Ninth Circuit further rejected the argument we accepted in Perez-Vargas—

that a criminal statute focusing on the resulting “bodily injury” did not categorically

require physical force—reasoning that a defendant who committed an “assault resulting

in bodily injury, necessarily must have committed an act of force in causing the injury.”

Id. This is the precise reasoning adopted by the Supreme Court five years later in

Castleman. See Castleman, 572 U.S. at 170 (“It is impossible to cause bodily injury

without applying force in the common-law sense.”). And Castleman’s embrace of this

logic led us to overrule Perez-Vargas in Ontiveros. See Ontiveros, 875 F.3d at 538 (“The

[Castleman] Court specifically rejected the contention that ‘one can cause bodily injury

without the use of physical force—for example, by deceiving [the victim] into drinking a

poisoned beverage, without making contact of any kind.’” (second alteration in original)

(quoting Castleman, 572 U.S. at 170)).

       Thus, the circuits were in disagreement as to whether “physical force”

encompassed indirect force when Mr. Muskett committed his crime. And the Supreme

Court’s decision in Castleman resolved this conflict against the position we adopted in

Perez-Vargas and Rodriguez-Enriquez, relying on its prior decision in Curtis Johnson—

also issued before Mr. Muskett’s crime. The incremental expansion of criminal liability at

issue here, then, falls neatly within Rodgers. Consequently, as in Rodgers, “any argument

. . . against retroactive application to [Mr. Muskett] of [the broader interpretation] . . . [is]

unavailing since the existence of conflicting cases from other Courts of Appeals made

review of that issue by th[e] Court and decision against the position of [Mr. Muskett]

reasonably foreseeable.” See Rodgers, 466 U.S. at 484.

                                                   21
       The dissent takes issue with our premise that circuit disagreement existed at the

time of Mr. Muskett’s conduct. Instead, the dissent contends, there existed merely an

“intra-circuit conflict” in the Ninth Circuit by virtue of two discordant opinions bearing

on the direct-indirect force issue, neither of which possess precedential effect as a result

of that court’s anomalous rule that “the appropriate mechanism for resolving an

irreconcilable conflict is an en banc decision.” 12 Atonio v. Wards Cove Packing Co., 810

F.2d 1477, 1478–79 (9th Cir. 1987); see Dissent at 15–17. As a result, the dissent

continues, at the time of Mr. Muskett’s offense, the Ninth Circuit had no “binding

precedent” on the question of whether “physical force” must be imparted directly to

qualify under the elements clause. Dissent at 18.




       12
          In United States v. De La Fuente, 353 F.3d 766, 771 (9th Cir. 2003), the
defendant argued that mailing anthrax did not satisfy the elements clause at 18 U.S.C.
§ 16(a) because such conduct was not “forceful conduct, as the term ‘force’ ordinarily
would be understood.” The Ninth Circuit rejected that argument, explaining that
“[a]nthrax is a physical substance that causes injury to the human body, and [the
defendant’s] letters clearly threatened death by way of physical contact with anthrax
spores.” Id.

        Four years later, in United States v. Beltran-Munguia, 489 F.3d 1042, 1046 (9th
Cir. 2007), the Ninth Circuit analyzed the minimum force required to commit an Oregon
rape offense. The Ninth Circuit began its analysis by noting that the plain language of the
Oregon statute did not contain an element of force: “Instead, the victim’s lack of consent
is the crime’s defining characteristic.” Id. at 1045. Given that feature, the court found
multiple ways in which the crime could be committed without satisfying the elements
clause: “a perpetrator could commit second-degree sexual abuse by surreptitiously adding
to his victim’s drink a drug that affects one’s judgment, thereby rendering her ‘mentally
incapacitated’” and incapable of providing consent, or “the victim could be ‘mentally
defective,’ yet fully physically cooperative.” Id. at 1046.

                                                 22
       Even if we agreed that the Ninth Circuit’s decisions—involving different predicate

crimes than the one at issue here—created an actual intra-circuit split such that neither

those decisions nor Juvenile Female would be regarded as precedential in the Ninth

Circuit, we would still find that Juvenile Female provided some notice to Mr. Muskett.

The unambiguous holding in Juvenile Female answers the precise question presented by

this appeal: “A defendant charged with . . . assault with . . . a dangerous weapon[] must

have always ‘threatened [the] use of physical force,’ because he or she will have either

made a ‘wil[l]ful attempt to inflict injury’ or a ‘threat to inflict injury.” 566 F.3d at 948

(fifth alteration in original) (first quoting 18 U.S.C. § 16(a); and then quoting United

States v. Chapman, 528 F.3d 1215, 1219–20 (9th Cir. 2008)). That conclusion—

indistinguishable from the categorical result we reach today—stood in direct opposition

to what the dissent contends was the “unequivocal[]” law in this circuit at the time of Mr.

Muskett’s offense. Dissent at 2.

       Thus, at the time of Mr. Muskett’s conduct, the Ninth Circuit had found Mr.

Muskett’s crime to fall categorically within the elements clause definition of a crime of

violence. By contrast, we had no direct precedent on this question, but an individual

could arguably interpret our decisions in Perez-Vargas and Rodriguez-Enriquez

(involving different predicate offenses but requiring that “physical force” be imparted

directly) as mandating a conclusion contrary to the Ninth Circuit’s. Even if Mr. Muskett

had discovered the allegedly irreconcilable intra-circuit split regarding direct-indirect

force in the Ninth Circuit—which apparently went entirely undetected by the lawyers

who litigated, and the jurists who decided, Juvenile Female—someone seeking to commit

                                                  23
assault with a dangerous weapon without triggering additional criminal liability under

§ 924(c) would be wisely concerned by the prospect that the Supreme Court might

ultimately side with the Ninth Circuit. And if that individual, as the dissent seems to

suggest, was sophisticated enough to extrapolate the reasoning of Perez-Vargas and

Rodriguez-Enriquez to his prospective commission of assault with a dangerous weapon,

he was also savvy enough to discern that the Supreme Court, in Curtis Johnson, had

flatly rejected the interpretation of “physical force” on which we had based our earlier

conclusions, thereby endorsing the Ninth Circuit approach.

       Ultimately, however, our rejection of Mr. Muskett’s due process challenge does

not depend solely on the result of a forensic examination of Ninth Circuit precedential

development or whether that court would characterize any particular opinion as binding

precedent. We do not hold that circuit disagreement alone provided Mr. Muskett with fair

notice. The Constitution demands only that “the statute, either standing alone or as

construed, made it reasonably clear at the relevant time that the defendant’s conduct was

criminal.” Lanier, 520 U.S. at 267. We conclude it was reasonably clear that Mr.

Muskett’s conduct was criminal because at the time of his offense (1) the meaning of

“physical force” remained unclear and therefore amenable to subsequent judicial

interpretation; (2) the Court’s opinion in Curtis Johnson rejected the interpretation of

“physical force” on which we had relied in requiring direct physical force; and (3) the

Ninth Circuit had unequivocally found that Mr. Muskett’s predicate offense was

categorically a crime of violence under the elements clause.



                                                24
       For all these reasons, it was reasonably foreseeable at the time Mr. Muskett

brandished a firearm in furtherance of his commission of assault with a dangerous

weapon that such conduct could trigger criminal liability under § 924(c)’s elements

clause. As a result, the retroactive application of subsequent decisions so clarifying the

force requirement does not deprive Mr. Muskett of his due process right to have fair

notice of what the law proscribes.

                                  III.   CONCLUSION

       Because Mr. Muskett’s predicate offense of assault with a dangerous weapon

categorically requires the attempted or threatened use of physical force, and further

because Mr. Muskett had sufficient notice that brandishing a firearm in furtherance of

that offense could run afoul of § 924(c), we affirm the district court’s denial of his § 2255

motion.




                                                25
United States v. Donovan Muskett, No. 17-2123
BACHARACH, J., dissenting.

      We must ordinarily evaluate harmlessness under current law, United

States v. Lewis, 904 F.3d 867, 872 (10th Cir. 2018), and our current law

includes United States v. Ontiveros, 875 F.3d 533 (10th Cir. 2017). Under

Ontiveros, Mr. Muskett’s predicate offense (assault with a dangerous

weapon) would constitute a crime of violence under 18 U.S.C.

§ 924(c)(3)(A). But when Mr. Muskett committed the predicate offense,

our case law prohibited us from considering assault with a dangerous

weapon as a crime of violence under 18 U.S.C. § 924(c)(3)(A). We toppled

that case law in Ontiveros. Because Mr. Muskett couldn’t have foreseen

that change in our case law, retroactive application of Ontiveros would

violate Mr. Muskett’s right to due process. I thus respectfully dissent.

I.    The right to due process prevents retroactive application of
      changes in the law without fair warning to the defendant.

      The Constitution prohibits Ex Post Facto laws, which stiffen the

punishment beyond what the law provided when the crime was committed.

U.S. Const. art. I § 9, cl. 3; Peugh v. United States, 569 U.S. 530, 532–33

(2013). Although this prohibition does not apply to the judiciary, the Fifth

Amendment’s right to due process does. This right entitles defendants to

“fair warning . . . of what the law intends to do if a certain line is passed.”

United States v. Lanier, 520 U.S. 259, 265 (1997) (quoting McBoyle v.

United States, 283 U.S. 25, 27 (1931)). Fair warning exists only if
defendants could reasonably foresee the legal consequences of their

conduct. Id. at 270–71. To assess foreseeability, we consider whether a

judicial decision was “unexpected and indefensible by reference to the law

which had been expressed prior to the conduct.” Bouie v. City of Columbia,

378 U.S. 347, 354 (1964) (quoting Jerome Hall, General Principles of

Criminal Law 58–59 (2d ed. 1960)).

      Certain types of judicial decisions may be considered “unexpected

and indefensible.” An example is a judicial decision that expansively

interprets a narrow, precise statute. That decision could be unexpected and

indefensible if the narrow statutory terms could have lulled potential

defendants “into a false sense of security.” Id. at 352. Judicial decisions

can also be unexpected and indefensible when they overrule a precedent.

See Marks v. United States, 430 U.S. 188, 195 (1977) (holding that a new

Supreme Court opinion overturning a previous standard was

unforeseeable); Lopez v. McCotter, 875 F.2d 273, 277–78 (10th Cir. 1989)

(holding that a New Mexico court’s decision to eliminate the bail

bondsman’s privilege was unforeseeable when the circumstances would not

have foreshadowed a change in the law).

II.   We torpedoed our precedent after Mr. Muskett had committed his
      predicate offense.

      When Mr. Muskett committed his offense in 2013, our precedent

unequivocally prevented us from categorically treating assault with a


                                      2
dangerous weapon as a crime of violence. See United States v. Perez–

Vargas, 414 F.3d 1282, 1286–87 (10th Cir. 2005).

     To categorically qualify as a crime of violence, an offense must

include as an element the use, threatened use, or attempted use of physical

force. 18 U.S.C. § 924(c)(3)(A). We considered a similar definition in

United States v. Perez–Vargas, 414 F.3d 1282 (10th Cir. 2005). There we

concluded that an offense constituted a crime of violence only if the

conduct necessarily involved the direct use of physical force. 414 F.3d at

1286–87. We applied this conclusion to determine that Colorado’s offense

of third-degree assault wasn’t a crime of violence, reasoning that the

offense could be complete even if the force had only been indirect. Id.

Based on this reasoning, we later held in United States v. Rodriguez–

Enriquez that Colorado’s offense of second-degree assault (drugging a

victim) wasn’t categorically classified as a crime of violence. 518 F.3d

1191, 1194–95 (10th Cir. 2008).

     Unlike our court, the Supreme Court had not yet addressed whether a

crime of violence needed to involve the direct use of physical force. But

the Court had considered the definition of “physical force” in Johnson v.

United States, addressing the meaning of the term “violent felony.” 559

U.S. 133, 140 (2010). There the Court held that the physical force must be

capable of causing physical pain or injury. Id.



                                      3
     After Mr. Muskett committed his offense, our governing precedents

began to unravel, starting with United States v. Castleman, 572 U.S. 157

(2014). There the Supreme Court considered the definition of physical

force in the context of misdemeanor crimes of domestic violence. In this

context, the Court used the common-law definition of “physical force”

rather than the narrower definition in Johnson. 572 U.S. at 163–65. Using

the broader common-law definition, the Court concluded that intentionally

or knowingly causing injury to a household member constituted a

misdemeanor crime of domestic violence because this crime necessarily

involved the use of common-law force. Id. at 169. But the Court expressly

declined to decide whether the intentional or knowing causation of bodily

injury necessarily involved the use of “physical force” as this term was

defined in Johnson. Id. at 167.

     Following Castleman, we recognized in United States v. Ontiveros

that Perez–Vargas had been overruled. 875 F.3d 533, 536 (10th Cir. 2017).

In Ontiveros, we considered whether Colorado’s offense of second-degree

assault was a crime of violence. 875 F.3d at 535–36. In deciding that issue,

we held that Perez–Vargas was no longer good law. We noted that

Castleman had concluded that a defendant’s intentional or knowing

causation of bodily injury necessarily involved common-law force. Id. at

536. Although Castleman hadn’t decided whether intentional or knowing

causation of bodily injury involved physical force under the Johnson test,

                                     4
we relied in Ontiveros on the combination of reasoning in Johnson and

Castleman. Id. at 538.

III.   Applying Ontiveros denies due process to Mr. Muskett because
       Ontiveros was unforeseeable when Mr. Muskett committed his
       offense.

       Mr. Muskett argues that applying Ontiveros to his case would violate

the right to due process because he couldn’t have foreseen the subsequent

sea change in our precedent when he committed his offense. I agree. 1

       The government contends that Mr. Muskett could have anticipated

the change based on two circumstances:

       1.   the Supreme Court’s opinion in Johnson and

       2.   the existence of a circuit split.

But neither circumstance made the change foreseeable.




1
       The majority concludes that

       •    applying Ontiveros to Mr. Muskett’s offense would not violate
            due process because the statute was ambiguous (unlike the
            narrow and precise statute at issue in Bouie) and

       •    judicial opinions had commented on the ambiguity.

Majority Op. at 16–17. But a judicial opinion expansively interpreting a
narrow and precise statute is just one example of a potentially
unforeseeable change in the law; another example is a court’s decision to
overrule its own precedent. See Part I, above.


                                       5
     The government points to the Supreme Court’s opinion in Johnson,

which preceded Mr. Muskett’s offense. In the government’s view, Johnson

foreshadowed the eventual overruling of Perez–Vargas. 2

     Agreeing with the government, the majority relies on one sentence

from Johnson, which stated that physical force is “force exerted by and

through concrete bodies” rather than “intellectual force or emotional

force.” Majority Op. at 17 (quoting Johnson v. United States, 559 U.S.

133, 138 (2010)). The majority concludes that this sentence rejected our

previous opinion, United States v. Rodriguez–Enriquez, where we had said

that it “seems highly unlikely” that the adjective “physical” “is being used

to distinguish the described force from a force generated by emotion,

psychology, religion, or rhetoric.” 518 F.3d 1191, 1194 (10th Cir. 2008).

     According to the majority, the conflict between Johnson and

Rodriguez–Enriquez should have alerted Mr. Muskett to the possibility that

Perez–Vargas might eventually be overruled. Majority Op. at 18–19. But in

the absence of 20–20 hindsight, no one in Mr. Muskett’s position could

have anticipated a possible overruling of Perez–Vargas.


2
      The government also argues that Mr. Muskett obtained fair warning
under the residual clause. But the Supreme Court held that the residual
clause was unconstitutionally vague, and vague laws don’t provide fair
warning. United States v. Davis, 139 S. Ct. 2319, 2325, 2336 (2019); see
also United States v. Lanier, 520 U.S. 259, 266 (1997) (stating that the
vagueness doctrine is a manifestation of the “fair warning requirement”).
So the residual clause could not have provided Mr. Muskett with fair
warning.
                                     6
       The majority elevates the importance of our “interpretation of the

adjective ‘physical’ in Rodriguez-Enriquez.” Majority Op. at 19. In my

view, the cited language was immaterial to the holding in Rodriguez-

Enriquez. There the question was whether Colorado’s offense of second-

degree assault necessarily involved physical force, as required for a crime

of violence. United States v. Rodriguez–Enriquez, 518 F.3d 1191, 1194–95

(10th Cir. 2008). Because Colorado’s offense of second-degree assault

could consist of surreptitiously drugging a victim, the panel had to decide

whether “physical force” could include chemical force (a type of indirect

physical force). Id. So the panel didn’t need to decide whether the

adjective “physical” distinguished physical force from force through

emotion, psychology, religion, or rhetoric. Id. at 1194.

       In Johnson, too, the issue had nothing to do with whether the

adjective “physical” distinguished physical force from force generated

through emotion, psychology, religion, or rhetoric. 559 U.S. at 138–39.

The issue there was whether “physical force” could consist of a slight

touching, which would constitute physical force under the common-law

definition. Id. at 139. So the Supreme Court had to decide between the

common-law definition of “physical force” and a narrower meaning. Id. at

140.

       The holdings in Rodriguez–Enriquez and Johnson didn’t address

whether the adjective “physical” would distinguish physical force from

                                      7
force generated through emotion, psychology, religion, or rhetoric. So it’s

hard to imagine how even a sophisticated legal scholar could have

predicted the overruling of Rodriguez–Enriquez from the single line in

Johnson.

      But let’s assume, for the sake of argument, that Mr. Muskett should

have interpreted Johnson to foreshadow the eventual rejection of a

sentence in Rodriguez–Enriquez about the likely meaning of the adjective

“physical.” Even then, Johnson said nothing to suggest the overruling of

Perez–Vargas or its holding that third-degree assault wasn’t a crime of

violence.

      Indeed, Johnson might have given Mr. Muskett greater comfort that

his offense was not categorically a crime of violence. Johnson had

narrowly defined physical force, requiring that physical force be capable of

causing physical pain or injury. Johnson v. United States, 559 U.S. 133,

140 (2010). Based on the Court’s choice of this definition over the broader

common-law definition, Mr. Muskett could have reasonably believed that

the Supreme Court was narrowing the definition of physical force. In fact,

the Supreme Court concluded in Johnson that an offense of simple battery

didn’t necessarily involve the use of physical force, so that offense wasn’t

a crime of violence. Id. at 145.

      In the aftermath of Johnson, other courts didn’t treat the opinion as a

rejection of the distinction between direct and indirect uses of force. To

                                      8
the contrary, courts continued to distinguish between the direct and

indirect uses of force. See United States v. Torres–Miguel, 701 F.3d 165,

168–69 (4th Cir. 2012) (concluding that for a state offense to constitute a

crime of violence, the offense must require the “use or threatened use of

violent force” rather than “simply result in physical injury or death”); 3

United States v. Andino–Ortega, 608 F.3d 305, 311 (5th Cir. 2010) (stating

that Texas’s offense of injury to a child could be committed “without the

use of physical force by putting poison or another harmful substance in a

child’s food or drink”); 4 United States v. Castleman, No. 2:08-cr-20420-

JPM-cgc, 2010 WL 11519878, at *3 (W.D. Tenn. Apr. 30, 2010)

(unpublished) (holding that offenses under Tennessee’s domestic-assault

statute did not constitute crimes of violence because the offenses could be

committed by “deceiving [the victim] into drinking a poisoned beverage”).

Given the continuing distinction between direct and indirect force, Mr.

Muskett would have needed extraordinary prescience to foresee Johnson’s

impact on Perez–Vargas. See Devine v. N.M. Dep’t of Corr., 866 F.2d 339,

345 (10th Cir. 1989) (concluding that a judicial decision was unforeseeable


3
      The Fourth Circuit later recognized that Torres–Miguel had been
abrogated by Castleman. United States v. Allred, 942 F.3d 641, 653 (4th
Cir. 2019).
4
      The Fifth Circuit overruled this part of the opinion after the Supreme
Court’s decision in Castleman. United States v. Reyes–Contreras, 910 F.3d
169, 182 n.27 (5th Cir. 2018) (en banc).

                                      9
when “[e]ven an in-depth inquiry by a dedicated and educated student of

. . . law would have revealed nothing to foreshadow the . . . opinion”).

      Even after Castleman, Johnson’s impact on our opinion in Perez–

Vargas was not entirely clear. Castleman concluded that indirect assaults,

such as poisoning a victim, would involve physical force. See Part II,

above. But Castleman reached this conclusion by relying heavily on the

common-law definition of physical force. See United States v. Castleman,

572 U.S. 157, 170 (2014) (explaining that “the common-law concept of

‘force’ encompasses even its indirect application”); see also Part II, above.

And Castleman expressly refrained from deciding whether indirect assaults

would meet Johnson’s elevated standard for physical force. 572 U.S. at

167. By refraining from a decision on this issue, the Castleman Court

declined to say whether Johnson’s requirement of physical force could be

satisfied when the force is indirect. And, of course, Mr. Muskett had

committed his offense before the Supreme Court decided Castleman. So

Mr. Muskett would have needed uncanny legal expertise and foresight to

anticipate the eventual unravelling of Perez–Vargas based on the Supreme

Court’s opinion in Johnson.

      The government also argues that Ontiveros was foreseeable based on

a supposed circuit split at the time of Mr. Muskett’s offense. The majority

agrees, holding that any circuit split on the scope of a criminal statute

would provide notice that the court might broaden its interpretation of

                                      10
crimes of violence. Majority Op. at 19-20. I respectfully disagree for two

reasons:

     1.    The existence of a circuit split wouldn’t have provided fair
           warning because our precedent in 2013 had clearly prevented
           categorical treatment of Mr. Muskett’s offense as a crime of
           violence.

     2.    No circuit split existed in 2013.

     In holding that a circuit split can provide fair warning, the majority

relies on an isolated sentence from a 1984 Supreme Court opinion, United

States v. Rodgers, 466 U.S. 475 (1984). In Rodgers, the Supreme Court

overruled an Eighth Circuit opinion that would have prevented criminal

liability, choosing instead to adopt a broader construction. 466 U.S. at

478–79. In a single sentence, the Court commented: “[A]ny argument by

respondent against retroactive application to him of our present decision

. . . would be unavailing since the existence of conflicting cases from other

Courts of Appeals made review of that issue by this Court and decision

against the position of the respondent reasonably foreseeable.” Id. at 484.

     The majority interprets this sentence to mean that a circuit split

always provides fair warning. But this interpretation disregards the

context. Rodgers didn’t even mention the right to due process or the fair-

warning test, and the Supreme Court has never cited Rodgers for a holding

on due process.




                                     11
      To the contrary, the Supreme Court later clarified that a circuit split

is simply one consideration bearing on the existence of fair warning and is

not dispositive on its own. See United States v. Lanier, 520 U.S. 259, 269

(1997) (explaining that “disparate decisions in various Circuits might leave

the law insufficiently certain . . . [but] such a circumstance may be taken

into account in deciding whether the warning is fair enough”). And the

Supreme Court has noted that a defendant need not stay apprised of legal

developments in other jurisdictions. See Rogers v. Tennessee, 532 U.S.

451, 464 (2001) (“Due process, of course, does not require a person to

apprise himself of the common law of all 50 States in order to guarantee

that his actions will not subject him to punishment in light of a developing

trend in the law that has not yet made its way to his State.”). If Mr.

Muskett didn’t need to stay apprised of developments in other

jurisdictions, why couldn’t he rely with confidence on our precedential

opinion in Perez–Vargas?

      After all, even when the conduct involves only civil liability, the

defendant can rely on our precedent irrespective of contrary case law in

other jurisdictions. See Trevor W. Morrison, Fair Warning and the

Retroactive Judicial Expansion of Federal Criminal Statutes, 74 S. Cal. L.

Rev. 455, 487 (2001) (“[N]either the Supreme Court nor any federal court

of appeals has ever held that liability may attach where settled in-circuit



                                      12
precedent clearly holds the conduct in question to be lawful.”). 5 Although a

circuit split could spur Supreme Court review, no court has ever questioned

the ability of defendants to rely on their own in-circuit precedent. See id.

at 488 (“[I]t seems clear that in cases where in-circuit precedent squarely

supports the defendant by holding his conduct to be lawful, the defendant

will always enjoy immunity without regard to the law in other circuits.”).

      If a public official can’t incur civil liability despite the possibility

that the Supreme Court could overrule our precedent, how could a court

subject a criminal defendant to harsher punishment based on changes in the

law after he’d already committed his crime? “If the defendant’s reasonable

belief that his conduct was lawful is adequate to immunize him from civil

suit, it would be anomalous at best nevertheless to subject him to criminal

prosecution for the same conduct.” Seth P. Waxman & Trevor W.

Morrison, What Kind of Immunity? Federal Officers, State Criminal Law,

and the Supremacy Clause, 112 Yale L.J. 2195, 2213 (2003).




5
       The majority questions my reliance on Dean Morrison’s article
because our task is to apply governing law rather than opine on what the
governing law should be. Majority Op. at 20 n.11. I too am focusing on
what the law is, not what it should be. In my view, the existing law does
not incongruously permit criminal liability for acting legally under circuit
precedent when conformity to circuit precedent couldn’t even trigger civil
liability. See United States v. Lanier, 520 U.S. 259, 270–71 (1997); see
p. 14, below.

                                       13
      Recognizing this potential anomaly, the Supreme Court has

highlighted the similarity in the tests for civil and criminal liability:

             In the civil sphere, we have explained that qualified
      immunity seeks to ensure that defendants “reasonably can
      anticipate when their conduct may give rise to liability,” by
      attaching liability only if “[t]he contours of the right [violated
      are] sufficiently clear that a reasonable official would
      understand that what he is doing violates that right.” So
      conceived, the object of the “clearly established” immunity
      standard is not different from that of “fair warning” . . . . The
      fact that one has a civil and the other a criminal law role is of no
      significance; both serve the same objective, and in effect the
      qualified immunity test is simply the adaptation of the fair
      warning standard to give officials (and, ultimately, governments)
      the same protection from civil liability and its consequences that
      individuals have traditionally possessed in the face of vague
      criminal statutes. To require something clearer than “clearly
      established” would, then, call for something beyond “fair
      warning.”

United States v. Lanier, 520 U.S. 259, 270–71 (1997) (citations omitted).

      Given the similarity in the tests for civil and criminal liability, the

Supreme Court has recognized the central role of our precedent in guiding

the behavior of not only civil defendants but also criminal defendants. For

example, in Marks v. United States, the Court held that the right to due

process prevents retroactive application of a new Supreme Court opinion

that departs significantly from a prior Supreme Court pronouncement. 430

U.S. 188, 194–97 (1977).

      Marks addressed retroactive application of a case that had overruled

an opinion by the Supreme Court rather than our court. Id. But we have

interpreted Marks more broadly, stating that “Marks held that a court

                                       14
overruling its own precedent is unforeseeable for due process purposes.”

Devine v. N.M. Dep’t of Corr., 866 F.2d 339, 345 (10th Cir. 1989). Based

on this interpretation of Marks, we have held that the right to due process

prohibited retroactive application of a state-court decision issued after the

defendant had committed his crime. Lopez v. McCotter, 875 F.2d 273, 277–

78 (10th Cir. 1989).

      This holding prevents retroactive application here, for “the existence

of settled in-circuit precedent holding a defendant’s conduct to be lawful

would appear to mean it was not ‘reasonably clear’ that his conduct was

unlawful when undertaken.” Trevor W. Morrison, Fair Warning and the

Retroactive Judicial Expansion of Federal Criminal Statutes, 74 S. Cal. L.

Rev. 455, 457 (2001). So the existence of settled in-circuit precedent

prevented fair warning to Mr. Muskett from the eventual thrashing of our

precedent.

      But even if Mr. Muskett could have obtained fair warning from a

circuit split, none existed in 2013. Three other circuits had held, as we

had, that crimes of violence required the direct use of physical force. See

Chrzanoski v. Ashcroft, 327 F.3d 188, 195–96 (2d Cir. 2003); United States

v. Torres–Miguel, 701 F.3d 165, 168–69 (4th Cir. 2012); United States v.

Villegas–Hernandez, 468 F.3d 874, 879 (5th Cir. 2006).




                                     15
      The government contends that the Ninth Circuit had created a circuit

split prior to 2013. I disagree. The Ninth Circuit’s opinions contradicted

each other, offering no binding precedent that could create a circuit split.

      In 2003, the Ninth Circuit held that mailing anthrax was a crime of

violence. United States v. De La Fuente, 353 F.3d 766, 771 (9th Cir. 2003).

Rejecting the defendant’s suggestion that mailing anthrax did not involve

the use of physical force, the court explained that “[a]nthrax is a physical

substance that causes injury to the human body, and [the defendant’s]

letters clearly threatened death by way of physical contact with anthrax

spores.” Id.

      But roughly four years later, the Ninth Circuit concluded that a crime

of violence hadn’t taken place because offenders could commit second-

degree sexual abuse without directly using any physical force. United

States v. Beltran–Munguia, 489 F.3d 1042, 1046 (9th Cir. 2007). For

example, a perpetrator could commit the offense by surreptitiously

drugging the victim, rendering her unable to consent. Id. This conclusion

contradicted the court’s earlier conclusion on whether chemical force could

constitute physical force. Compare De La Fuente, 353 F.3d at 771 (holding

that poisoning a victim was a crime of violence), with Beltran–Munguia,

489 F.3d at 1046 (holding that drugging a victim was not a crime of

violence).



                                     16
      About two years later, the Ninth Circuit decided United States v.

Juvenile Female, holding that assault involving a deadly or dangerous

weapon or resulting in bodily injury was a crime of violence. 566 F.3d 943,

947 (9th Cir. 2009). According to the majority, Juvenile Female “rejected

the argument we accepted in Perez-Vargas.” Majority Op. at 21. I

respectfully disagree. Unlike Perez-Vargas, Juvenile Female never

discusses whether crimes of violence require the direct use of force. 6 In the

absence of any discussion, the Ninth Circuit’s internal division remained.

See United States v. Corrales–Vazquez, 931 F.3d 944, 954 (9th Cir. 2019)

(“[C]ases are not precedential for propositions not considered or for

questions which merely lurk in the record.” (internal quotation marks and

citations omitted)).

      The Ninth Circuit thus had an intra-circuit conflict. Under Ninth

Circuit precedent, an intra-circuit conflict can be resolved only through an

en banc proceeding. Atonio v. Wards Cove Packing Co., 810 F.2d 1477,

1478–79 (9th Cir. 1987) (en banc). Until the court convenes en banc,

however, the law in the Ninth Circuit remains unsettled:


6
      In Juvenile Female, neither party argued that crimes of violence
require the direct use of force. See Br. for Appellant, United States v.
Juvenile Female, 566 F.3d 943 (9th Cir. 2009) (No. 07-50549); Br. for
Appellee, United States v. Juvenile Female, 566 F.3d 943 (9th Cir. 2009)
(No. 07-50549). It is thus unsurprising that the court did not address this
issue. See United States v. Sainz, 933 F.3d 1080, 1087 (9th Cir. 2019)
(explaining that courts “normally decide only questions presented by the
parties”) (quoting Greenlaw v. United States, 554 U.S. 237, 244 (2008)).
                                     17
      An intra-circuit conflict can only be resolved by the court en
      banc. Until the en banc court is able to address the issue, we
      must make the unsatisfactory choice between two opposing lines
      of authority, neither of which has an unimpaired claim to being
      the law of the circuit.

Greenhow v. Sec’y of Health & Human Servs., 863 F.2d 633, 636 (9th Cir.

1988) (citations omitted), overruled in part on other grounds by United

States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per

curiam). 7 So the Ninth Circuit had no binding precedent conflicting with

Perez–Vargas when Mr. Muskett committed his offense.

                                      * * *

      In summary, neither a circuit split nor the Supreme Court’s opinion

in Johnson provided fair warning to Mr. Muskett that his prior offense

could constitute a crime of violence. So applying Ontiveros would violate

Mr. Muskett’s right to due process.

IV.   Conclusion

      Based on our governing precedent at the time of the predicate offense

(Perez–Vargas), we cannot retroactively apply Ontiveros without violating

Mr. Muskett’s right to due process. I would thus apply Perez–Vargas.




7
      The Ninth Circuit’s rule here differs from most circuits’ rules, which
require adherence to the earlier opinion in an intra-circuit conflict. See
McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004) (collecting
cases from circuits that require adherence to the earlier of two conflicting
panel opinions).

                                       18
Under Perez–Vargas, Mr. Muskett’s offense of assault with a dangerous

weapon is not a crime of violence.




                                     19
