                                     PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 16-601


In re: JAMES ALLEN IRBY, III,

             Movant.


On Motion for Authorization to File Successive § 2255 Motion in the United States District
Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:03-cr-00490-DKC-1)


Argued: September 22, 2016                                         Decided: June 1, 2017


Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.


Motion for authorization denied by published opinion. Judge Shedd wrote the opinion, in
which Judge Niemeyer and Judge Agee joined.


ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Movant. Sujit Raman, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Respondent. ON BRIEF: James Wyda, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Movant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland,
Brian Epshteyn, Student Law Clerk, John Perry, Student Law Clerk, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Respondent.
SHEDD, Circuit Judge:

       A jury convicted James Allen Irby of second-degree murder in retaliation against a

witness or informant, in violation of 18 U.S.C. §§ 1513(a)(1)(B) and 1111(a); causing

death with a firearm, in violation of 18 U.S.C. §§ 924(c) and (j); and destruction of property

by fire, in violation of 18 U.S.C. § 844(i). Irby did not appeal his convictions, and his initial

28 U.S.C. § 2255 motion was denied. Irby now moves for authorization to file a successive

§ 2255 motion, arguing that under Johnson v. United States, 135 S.Ct. 2551 (2015), he

should be allowed to challenge his § 924(c) conviction. Because Johnson does not aid Irby,

we deny his motion.

                                               I.

       The underlying facts are not in dispute. In early January 2001, Terrence Deadwyler

began cooperating with federal authorities in an effort to avoid a lengthy prison sentence

from an ongoing drug trafficking case. As part of this cooperation, Deadwyler, through his

attorney Tony Miles, informed agents with the Bureau of Alcohol, Tobacco, and Firearms

(ATF) that an associate, Irby, possessed a gun in his apartment. ATF agents confirmed that

Irby lived in the specified apartment, did not have a permit for a gun, and was a convicted

felon. Several days later, the ATF executed a warrant at Irby’s apartment and recovered a

gun.

       Irby, who was incarcerated and awaiting trial in D.C. Superior Court at the time,

remained in custody pending a federal felon-in-possession charge. Irby was represented in

the federal case by Deadwyler’s attorney, Tony Miles. On Irby’s behalf, Miles filed a

request for disclosure of the informant. At that point, Miles discovered that Deadwyler

                                               2
was the informant and moved to recuse himself from Irby’s case. At the same time, the

federal prosecutors determined that revealing Deadwyler as the informant in Irby’s case

would harm other ongoing investigations and dismissed the case against Irby.

       During his detention on the felon-in-possession charge, Irby’s father passed away.

Because Irby believed that the search warrant executed at the apartment he shared with his

father caused his father’s health to fail, he blamed the informant for his father’s passing

and turned his attention to uncovering the informant’s identity. In March 2003, Irby and

Deadwyler were together when Deadwyler took a call from his attorney. At the end of the

call, Irby asked who Deadwyler’s attorney was, and Deadwyler told him it was Miles. This

revelation left Irby convinced that Deadwyler was the informant against him.

       Around 1:00 a.m. on the morning of March 28, 2003, Irby entered Deadwyler’s

apartment and shot him three times — under the left eye, through the neck, and in the flank

— with two shots coming from close range. Irby next proceeded to stab Deadwyler 174

times. He then retrieved Deadwyler’s valuables and clothes, put them in a pile, and lit them

on fire. The fire caused the evacuation of Deadwyler’s apartment complex and significant

property damage.

       Irby later confided in his cousin that he was certain that Deadwyler was the

informant and that Deadwyler had taken his father from him. Irby told his cousin

Deadwyler’s murder did not bother him because he “had put in work before.” (J.A. 268).

He also joked that he had set fire to Deadwyler’s “cheap ass clothes” and explained that he

stabbed Deadwyler after shooting him to “make sure it was over.” (J.A. 268).



                                             3
       A federal grand jury indicted Irby on three charges: first-degree retaliatory murder

(Count 1); causing death with a firearm (Count 2); and destruction of property by fire.

Following a trial, the jury convicted Irby of Counts 2 and 3. On Count 1, the jury found

Irby guilty of the lesser-included offense of second-degree retaliatory murder. The district

court sentenced Irby to 38 years imprisonment. As previously mentioned, Irby’s first

§ 2255 motion was denied. On May 7, 2016, Irby moved for authorization to file a

successive § 2255 motion.

                                              II.

                                              A.

       To qualify for authorization to file a successive § 2255 motion, Irby must show,

inter alia, that his motion relies on a “new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2). We recently

explained that § 2255(h) requires a claimant like Irby to make two showings. See In re

Hubbard, 825 F.3d 225, 229 (4th Cir. 2016). First, Irby must show that his claim relies on

a new and retroactive rule of constitutional law. Second, Irby must make “a sufficient

showing of possible merit to warrant a fuller exploration by the district court.” Id. (internal

quotation marks omitted). Under this standard, Irby must make a “plausible” claim for

relief, id. at 230, because “[m]ere citation of a new rule in a successive motion is not

sufficient,” Donnell v. United States, 826 F.3d 1014, 1016 (8th Cir. 2016).

       To satisfy Hubbard’s requirements, Irby points to Johnson. In Johnson, the

Supreme Court ruled that the residual clause of the Armed Career Criminal Act, 18 U.S.C.

§ 924(e)(2)(B)(ii), is unconstitutionally vague. Johnson’s holding was made retroactive by

                                              4
Welch v. United States, 136 S.Ct. 1257 (2016). Assuming that Johnson would apply to

§ 924(c), we deny Irby authorization to file a successive § 2255 motion because he does

not make a plausible claim for relief.

                                                 B.

       Section 924(c) is a penalty provision that mandates an enhanced sentence for a

defendant who uses or carries a firearm during, as relevant here, a “crime of violence.” 18

U.S.C. § 924(c)(1)(A). A “crime of violence” is defined as a felony offense that:

       (A) Has as an element the use, attempted use, or threatened use of physical
       force against the person or property of another, or

       (B) That by its nature, involves a substantial risk that physical force against
       the person or property of another may be used in the course of committing
       the offense.

Id. § 924(c)(3). Subsection A is commonly called the force clause and subsection B the

residual clause. “In determining whether an offense is a crime of violence under either

clause, we utilize the categorical approach, which focuses solely on the elements of the

offense, rather than on the facts of the case.” United States v. McNeal, 818 F.3d 141, 152

(4th Cir. 2016). See also United States v. Evans, 848 F.3d 242, 245-46 (4th Cir. 2017)

(“[W]e apply the elements-based categorical approach” to §924(c) and “analyze only the

elements of the offense in question, rather than the specific means by which the defendant

committed the crime”).

       We briefly note the categorical approach is a particularly bad fit in § 924(c) cases

because § 924(c) is a firearms enhancement provision that penalizes, in broad terms, the

use of a firearm during violent crimes. While Irby posits multiple hypotheticals on how a


                                             5
person can commit second-degree retaliatory murder without using direct force, “[o]ne is

left to ask when, if ever, would someone be facing a firearms enhancement . . . by pointing

a laser at an airplane” or convincing a child to jump out of a second-story window. United

States v. Checora, 155 F.Supp.3d 1192, 1200 (D. Utah 2015).

       In this case, the absurdity of Irby’s position is magnified because Irby was also

convicted of violating § 924(j), which makes it a crime to “cause[] the death of a person

through the use of a firearm” in the course of committing a § 924(c) offense. 18 U.S.C. §

924(j). The jury was instructed that it could convict Irby only if the Government “prove[d]

that the defendant inflicted an injury or injuries upon Terrence Deadwyler using a firearm

from which Terrence Deadwyler died,” (J.A. 52), an action that indisputably required the

“use of force,” yet the categorical approach requires us to ignore this fact in reviewing

whether second-degree retaliatory murder is a crime of violence, continuing the “protracted

ruse for paradoxically finding even the worst and most violent offenses not to constitute

crimes of violence.” United States v. Doctor, 842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson,

J. concurring).

       Our precedent requires application of that approach, however, and accordingly, we

must address whether Irby’s second-degree retaliatory murder conviction is categorically

a crime of violence under the force clause.

                                              C.

       Section 1513, the retaliatory murder statute, makes it an offense to intentionally kill

another person in retaliation for, inter alia, providing a law enforcement officer with “any

information” regarding “the commission” of a “Federal offense.” 18 U.S.C. §

                                              6
1513(a)(1)(B). The punishment for retaliatory murder is specified in 18 U.S.C. § 1111, the

federal murder statute, which defines murder as “the unlawful killing of a human being

with malice aforethought.” Section 1111(a) explains that:

       Every murder perpetrated by poison, lying in wait, or any other kind of
       willful, deliberate, malicious, and premeditated killing; or committed in the
       perpetration of, or attempt to perpetrate, any arson, escape, murder,
       kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual
       abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or
       practice of assault or torture against a child or children; or perpetrated from
       a premeditated design unlawfully and maliciously to effect the death of any
       human being other than him who is killed, is murder in the first degree.

Id. “Any other murder is murder in the second degree.” Id. The statute authorizes “death

or by imprisonment for life” for first-degree murder and “any term of years or for life” for

second-degree murder. Id. § 1111(b).

                                             D.

       Applying the categorical approach, we conclude that Irby cannot meet Hubbard’s

second requirement. As we explain, Johnson does not help Irby: his conviction for second-

degree retaliatory murder is a crime of violence under § 924(c)’s force clause because it

“[h]as an element the use, attempted use, or threatened use of physical force against the

person.” See Hubbard, 825 F.3d at 229 (denying Hubbard’s motion for authorization as to

his § 924(c) conviction because armed bank robbery “is a crime of violence, specifically

under the ‘force clause’ of 18 U.S.C. § 924(c)(3), and . . . the holding in Johnson is

inapplicable”).

       In Curtis Johnson v. United States, 559 U.S. 133 (2010) (Curtis Johnson), the Court

examined the definition of “physical force” under the ACCA, 18 U.S.C. § 924(e)(2)(B)(i).


                                              7
The Court first noted that the term “physical” was “not of much help” because it simply

“refers to force exerted by and through concrete bodies—distinguishing physical force

from, for example, intellectual force or emotional force.” Id. at 138. “Force,” however,

held multiple possible meanings including as an element of common law battery. At

common law, the Court explained, “force” was “satisfied by even the slightest offensive

touching.” Id. at 139. This definition, however, did not fit with § 924(e)’s reference to

violent felonies. Instead, the Court held that the “force” as used in § 924(e)(2)(B)(i) 1 must

be “violent,” “great,” or “strong,” that is, force “capable of causing physical pain or injury

to another person.” Id. at 140.

       More recently, the Court has expounded upon what it means to use physical force.

In United States v. Castleman, 134 S.Ct. 1405, 1409 (2014), the defendant was previously

convicted of “intentionally or knowingly causing bodily injury to” his child’s mother. The

Court was tasked with answering whether this conviction amounted to a misdemeanor

crime of domestic violence, that is, a crime that “has as an element the use . . . of physical

force.” Id. (quoting 18 U.S.C. § 921(a)(33)(A)(ii)). The district court had determined that

the conviction did not qualify because “one can cause bodily injury without ‘violent

contact’—for example, by ‘deceiving [the victim] into drinking a poisoned beverage.’” Id.

(quoting App. To Pet. For Cert. 41a).




       1
         That statute defines a violent felony as one that “has as an element the use,
attempted use, or threatened use of physical force against the person of another.” 18 U.S.C.
§ 924(e)(2)(B)(i).

                                              8
        The Court first determined that, unlike in Curtis Johnson, the reference to “force”

in § 921(a)(33)(A) did incorporate “the common-law meaning of ‘force’—namely,

offensive touching.” Id. at 1410. The Court then turned to whether the causation of bodily

injury necessarily required the use of force. The court held that “bodily injury must result

from physical force.” Id. at 1414 (internal quotation marks omitted).

        In so holding, the Court rejected the district court’s position that a defendant could

cause injury by indirect means, like poison, that did not require any force. As the Court

reiterated, physical force “is simply ‘force exerted by and through concrete bodies,’” and

common-law force “encompasses even its indirect application.” Id. (quoting Curtis

Johnson, 559 U.S. at 138). “It is impossible to cause bodily injury without applying force

in the common-law sense.” Id. at 1415. The Court then emphatically rejected Castleman’s

argument that “no one would say that a poisoner employs force,” because “the knowing or

intentional application of force is a use of force.” Id. (internal quotation marks omitted).

As the Court succinctly explained:

        The “use of force” in Castleman’s example is not the act of “sprinkl[ing]”
        the poison; it is the act of employing poison knowingly as a device to cause
        physical harm. That the harm occurs indirectly, rather than directly (as with
        a kick or punch), does not matter. Under Castleman’s logic, after all, one
        could say that pulling the trigger on a gun is not a “use of force” because it
        is the bullet, not the trigger, that actually strikes the victim.

Id. 2


        2
         Justice O’Connor, writing for the Eleventh Circuit, made a similar point in
rejecting an argument that disabling an aircraft does not require the use of force against
property:


                                              9
       Curtis Johnson and Castleman make it pellucid that second-degree retaliatory

murder is a crime of violence under the force clause because unlawfully killing another

human being requires the use of force “capable of causing physical pain or injury to another

person.” See United States v. Luskin, 926 F.2d 372, 379 (4th Cir. 1991) (traveling interstate

to commit murder was crime of violence under force clause because it “certainly threatened

the use of violence”); United States v. Mathis, 963 F.2d 399, 407 (D.C. Cir. 1992) (noting

§ 924(c) force clause offenses are those that have as “an element the use, attempted use or

threatened use of physical force against a person. This . . . would include such felonies

involving physical force against a person such as murder, rape, assault, robbery, etc.”)

(quoting H.R. Rep. No. 849, 99th Cong., 2d Sess. 3); United States v. Machado-Erazo, 986

F.Supp.2d 39, 53-54 (D.D.C. 2013) (rejecting motion for acquittal on § 924(c) charge

because murder “is a crime of violence because it is a felony that requires the use, attempted

use, or threatened use of physical force against another person”). In fact, the Curtis Johnson

Court made this point when it quoted approvingly a definition of a violent felony as “[a]

crime characterized by extreme physical force, such as murder, forcible rape, and assault




       It makes little difference that the physical act, in isolation from the crime,
       can be done with a minimum of force; we would not say that laying spikes
       across a roadway is a non-violent crime because laying something upon the
       ground is not a forceful act. It still involves an intentional act against
       another’s property that is calculated to cause damage and that is exacerbated
       by indifference to others’ wellbeing.

United States v. McGuire, 706 F.3d 1333, 1337-38 (11th Cir. 2013).


                                             10
and battery with a dangerous weapon.” Curtis Johnson, 559 U.S. at 140-41 (quoting

Black’s Law Dictionary, 1188 (9th ed. 2009)). 3

       Irby posits multiple hypothetical means for committing second-degree murder

without applying direct force (for instance, convincing a person to expose themselves to

hazardous chemicals), but Castleman forecloses the argument that indirect means of

applying force are not a use of force. In Irby’s hypothetical, it is enough that the individual

intentionally acted to place the victim in the path of an inevitable force. Just as with the

poisoner, “it is the act of employing [chemicals] knowingly as a device to cause physical

harm” that qualifies as the use of force. Castleman, 134 S.Ct. at 1415. Simply, “[i]t is hard

to imagine conduct that can cause another to die that does not involve physical force against

the body of the person killed”. Checora, 155 F.Supp.3d at 1197. 4

       Moreover, the Supreme Court also commands that, in interpreting statutes, we are

instructed to use not only “the statutory context, structure, history, and purpose,” but also

our “common sense” to avoid an absurd result. Abramski v. United States, 134 S.Ct. 2259,


       3
        Even post-Johnson several courts have found that murder is a crime of violence
under the force clause. See, e.g., United States v. Moreno-Aguilar, 198 F.Supp.3d 548, 551
(D. Md. 2016) (concluding murder is a crime of violence under § 924(c) force clause and
noting court “has not found any decision holding that murder cannot serve as a predicate
offense under the force clause”) (emphasis in original); Cousins v. United States, 198
F.Supp.3d 621, 626 (E.D.Va. 2016) (common law murder is a crime of violence under §
924(c) force clause); Checora, 155 F.Supp.3d at 1195-1201 (second-degree murder under
§ 1111 is a crime of violence under § 924(c) force clause).
       4
         The Supreme Court’s lethal injection protocol cases recognize that the “risk of
pain is inherent in any method of execution—no matter how humane.” Baze v. Rees, 553
U.S. 35, 47 (2009) (plurality opinion). Thus, even “humane” executions are “capable of
causing physical pain or injury” as required by Curtis Johnson.

                                              11
2267 (2014) (internal quotation marks omitted). Common sense dictates that murder is

categorically a crime of violence under the force clause. See United States v. Hill, 832 F.3d

135, 140 (2d Cir. 2016) (noting categorical approach must remain “grounded in reality,

logic, and precedent, not flights of fancy”). It is absurd to believe that Congress would have

intended poisoners and people who use their wits to place someone in the path of an

inevitable force to avoid the force clause of § 924(c). Irby contends that any absurdity is

mitigated because murder could fit under the residual clause, but that clause was added by

Congress to cover various state law crimes that were “roughly similar” to the examples

provided in the clause: burglary, arson, extortion, and crimes involving the use of

explosives. Begay v. United States, 553 U.S. 137, 143 (2008). It was not added to catch a

quintessential crime of violence such as murder, a crime the Court has stated repeatedly

has no comparison “in terms of moral depravity and of the injury to the person” given its

“severity and irrevocability.” Kennedy v. Louisiana, 554 U.S. 407, 438 (2008) (internal

quotation marks omitted). See also Graham v. Florida, 560 U.S. 48, 69 (2010) (noting

other crimes “differ from homicide crimes in a moral sense”).

       Under Irby’s approach, the most morally repugnant crime — murder — would not

be a crime of violence “while at the same time permitting many less-serious crimes to be

so classified.” United States v. Alfaro, 835 F.3d 470, 477-78 (4th Cir. 2016). For instance,

we have recently reaffirmed that armed bank robbery, which criminalizes the taking of

certain property by “force and violence, or by intimidation,” is a crime of violence under

§ 924(c)’s force clause. McNeal, 818 F.3d at 152-54. Thus, just as mentioned in Alfaro,

Irby’s approach leaves us with a more serious offense (murder) outside the force clause

                                             12
while permitting less-serious offenses (robbery) to remain under the clause. We rejected

that “illogical result” in Alfaro and reject it again here. 5 Alfaro, 835 F.3d at 478.

                                                    E.

       In a final effort to save his motion for authorization, Irby points to United States v.

Torres-Miguel, 701 F.3d 165 (4th Cir. 2012) which, in his view, indicates that second-

degree retaliatory murder does not require the use of physical force. We disagree.

       In Torres-Miguel, we examined a prior state conviction for “threaten[ing] to commit

a crime which will result in death or great bodily injury to another.” Id. at 167 (quoting

Cal. Penal Code § 422(a)) (emphasis omitted). We held that such a conviction did not have

“as an element the use, attempted use, or threatened use of physical force against the person

of another,” as required by § 2L1.2 of the United States Sentencing Guidelines. In reaching

this conclusion, we explained that “[a]n offense that results in physical injury, but does not

involve the use or threatened use of force, simply does not meet the Guidelines definition,”

and that the California statute thus failed to fall within the Guidelines definition because

“a crime may result in death or serious injury without involving use of physical force.” Id.



       5
         Irby’s position also would lead to anomalous results in other statutes. For instance,
Congress enacted the federal solicitation statute, 18 U.S.C. § 373, at the same time it
enacted § 924(c)’s force and residual clauses. The solicitation statute makes it a crime to
solicit someone “with [the] intent that another person engage in conduct constituting a
felony that has as an element the use, attempted use, or threatened use of physical force
against property or against the person of another.” Id. The statute does not include a
residual clause. Thus, if we accepted Irby’s position that § 1111 is not a crime of violence
under the force clause, solicitation of first-degree murder would not even be a criminal
offense while first-degree murder is a capital offense.


                                               13
at 168 (emphasis in original). We explained that the California statute could be violated

without the use of physical force because “a defendant can violate statutes like § 422(a) by

threatening to poison another, which involves no use or threatened use of force.” Id. at 168-

69.

       Even accepting Irby’s position that Torres-Miguel would extend beyond threat

statutes to crimes such as second-degree retaliatory murder, 6 the distinction we drew in

Torres-Miguel between indirect and direct applications of force and our conclusion that

poison “involves no use or threatened use of force,” no longer remains valid in light of

Castleman’s explicit rejection of such a distinction. 7



       6
        We have declined to extend Torres-Miguel to federal statutes criminalizing bank
robbery, McNeal, 818 F.3d at 156, and carjacking, Evans, 848 F.3d at 247.
       7
         We are not the first court to recognize that Castleman undermined Torres-Miguel’s
reasoning on this point. See, e.g., Hill, 832 F.3d at 143-44 (noting that Castleman rejects
notion that use of poison does not constitute the use of force); Arellano Hernandez v.
Lynch, 831 F.3d 1127, 1131 (9th Cir. 2016) (noting “reasoning” of Torres-Miguel and
poison hypothetical “has been rejected by the Supreme Court”); United States v. Rice, 813
F.3d 704, 706 (8th Cir. 2016) (noting that courts had reached “differing conclusions” as to
“whether a person uses physical force in causing an injury through indirect means such as
poisoning,” but that “[w]e believe that Castleman resolves the question”); United States v.
Dylan Roof, -- F.Supp.3d --, 2016 WL 8118564, at * 14 (noting that Castleman rejects the
reasoning of Torres-Miguel); United States v. Williams, 179 F.Supp.3d 141, 151 (D. Me.
2016) (“In Castleman, the Supreme Court rejected the reasoning applied in Torres-
Miguel”); United States v. Wheeler, 2016 WL 783412, at *4 (E.D. Wis. 2016) (“Torres-
Miguel has been overruled to the extent that it held that a crime may result in death or
serious injury without involving the use of physical force”); United States v. Bell, 158
F.Supp.3d 906, 917 (N.D. Cal. 2016) (“the reasoning in Torres-Miguel—which relies on
the notion that an indirect application of force between defendant and victim does not
qualify as ‘using’ physical force . . . was rejected by the Supreme Court”); United States v.
McCallister, 2016 WL 3072237, at *10 n. 11 (D.D.C. 2016) (“validity of Torres-Miguel
and its poisoning example has been cast into doubt by United States v. Castleman”); United

                                             14
       In sum, one cannot unlawfully kill another human being without a use of physical

force capable of causing physical pain or injury to another, and Irby’s conviction for

second-degree retaliatory murder falls within the force clause.

                                            III.

       To qualify for authorization to file a successive § 2255 motion, Irby must make a

showing of possible merit sufficient to warrant further review. Irby cannot do so because

second-degree retaliatory murder is a crime of violence under the force clause of § 924(c).

Johnson’s holding, which is limited to the residual clause, “is inapplicable” to Irby’s

§ 924(c) conviction, Hubbard, 825 F.3d at 229, and we therefore deny his request for

authorization.

                                                                       MOTION DENIED




States v. McDaniels, 147 F.Supp.3d 427, 433 (E.D. Va. 2015) (“the Supreme Court rejected
the rationale of Torres-Miguel in [Castleman]”).

                                            15
