                                                                                      FILED
                                                                          United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                              Tenth Circuit

                                      TENTH CIRCUIT                            December 19, 2017

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                              No. 16-8111
v.                                                  (D.C. No. 2:16-CR-00095-SWS-1)
                                                                (D. Wyo.)
KEMP EUGENE CRAVENS,

              Defendant - Appellant.




                              ORDER AND JUDGMENT*



Before LUCERO, O’BRIEN, and PHILLIPS, Circuit Judges.



       It is hard to imagine a more bizarre bank robbery than this one. Not only that, this

case seeks to further roil the boisterous seas unleashed by Johnson v. United States

(Johnson II), --- U.S. ---, 135 S. Ct. 2551, 2557, 2563 (2015) (declaring the residual


       *
         This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not encouraged, but not prohibited.
Fed. R. App. 32.1. Citation is appropriate as it relates to law of the case, issue preclusion
and claim preclusion. Unpublished decisions may also be cited for their persuasive
value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by
an appropriate parenthetical notation B (unpublished). Id.
clause of the Armed Career Criminal Act (ACCA) to be unconstitutional).

       The issue presented comes down to this: whether the elements of the federal

armed bank robbery statute satisfy the use or threatened use of physical force requirement

necessary for an enhanced sentence. Its resolution involves the interplay of two federal

statutes, the relevant portions of which follow:

18 U.S.C. § 2113
       (a) Whoever, by force and violence, or by intimidation, takes, or attempts to take,
       from the person or presence of another, . . . any property or money. . . belonging
       to, or in the care, custody, control, management, or possession of, any bank, credit
       union, or any savings and loan association

       ****

       Shall be fined under this title or imprisoned not more than twenty years, or both.

       ****
       (d) Whoever, in committing, or in attempting to commit, any offense defined in
       subsection[] (a) . . . of this section, assaults any person, or puts in jeopardy the life
       of any person by the use of a dangerous weapon or device, shall be fined under
       this title or imprisoned not more than twenty-five years, or both.

(Emphasis added.)

18 U.S.C. § 924
       (c)(1)(A) Except to the extent that a greater minimum sentence is otherwise
       provided by this subsection or by any other provision of law, any person who,
       during and in relation to any crime of violence or drug trafficking crime (including
       a crime of violence or drug trafficking crime that provides for an enhanced
       punishment if committed by the use of a deadly or dangerous weapon or device)
       for which the person may be prosecuted in a court of the United States, uses or
       carries a firearm, or who, in furtherance of any such crime, possesses a firearm,
       shall, in addition to the punishment provided for such crime of violence or drug
       trafficking crime—

       ****
               (ii) if the firearm is brandished, be sentenced to a term of imprisonment of
                                                 -2-
              not less than 7 years.

       ****
       (3) For purposes of this subsection the term “crime of violence” means an offense
       that is a felony and—

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

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

       ****
       (4) For purposes of this subsection, the term “brandish” means, with respect to
       a firearm, to display all or part of the firearm, or otherwise make the presence of
       the firearm known to another person, in order to intimidate that person, regardless
       of whether the firearm is directly visible to that person.

(Emphasis added.)

                                       I. Factual Background

       On May 3, 2016, Kemp Eugene Cravens entered the Platte Valley Bank in

Evansville, Wyoming, with a semi-automatic handgun in his waistband. He approached

the two tellers on duty and demanded money. While the tellers were retrieving money

from their cash drawers, he withdrew the handgun from his waistband, displayed it to the

tellers, and returned it to his waistband. He then walked away with approximately

$14,000. Later that day he was arrested and, after being advised of and waiving his

constitutional rights, confessed.

       Cravens’ motive remains a mystery. He was 63-years-old at the time of the

robbery, but not in need of money. His wife and children were supportive. He had no

prior criminal history. When arrested he told police officers “[h]e had no explanation”
                                                -3-
for his actions other than that robbing a bank “was something he had thought of for the

past 25 years.” (R. Vol. 2 at 24.) As defense counsel described it at sentencing: “he got

this idea a long time ago . . . and it’s always been there gnawing at him . . . like an itch.

And unfortunately one day . . . he decided to scratch it.” (R. Vol. 3 at 37.) Unfortunate

indeed, especially for on-duty bank employees who remain emotionally scarred as a

result of Cravens’ inexplicable actions.

       Count 1 of the indictment charged Cravens with armed bank robbery in violation

of 18 U.S.C. § 2113(a) and (d) (set forth above). It specified that the deadly weapon used

was a firearm.1 Count 2 charged him with using and brandishing a firearm during and in

relation to a crime of violence—armed bank robbery—in violation of 18 U.S.C. §

924(c)(1)(A)(ii) (also set forth above).2


       1
           Count 1 of the indictment charged:

              On or about May 3, 2016, in the District of Wyoming, the Defendant,
       KEMP EUGENE CRAVENS, by force, violence and intimidation, did take from
       the person and presence of another approximately $14,000 in money belonging to
       and in the care, custody, control, management and possession of the Platte Valley
       Bank in Evansville, Wyoming, a bank whose deposits were then insured by the
       Federal Deposit Insurance Corporation, and in committing such offense, the
       Defendant, KEMP EUGENE CRAVENS, assaulted and put in jeopardy the life
       of another person by the use of a dangerous weapon, that is a firearm. In violation
       of 18 U.S.C. §§ 2113(a) and (d).

(R. Vol. 1 at 14 (emphasis added).)
       2
           Count 2 charged:

             On or about May 3, 2016, in the District of Wyoming, the Defendant,
       KEMP EUGENE CRAVENS, did knowingly use and brandish a firearm
       during and in relation to a crime of violence, namely bank robbery, as more
                                                                   (Continued . . .)
                                              -4-
       Cravens moved to dismiss Count 2. His only argument then was the one he makes

now: the predicate offense—federal armed bank robbery—was not a qualifying “crime of

violence” because it did not require the use of physical force, i.e., mechanical impact or

the transfer of kinetic energy to the victim’s person.3 His premise is, and was, exposing

or threatening to expose a person to painful chemicals might be force, but not the

required physical force.4

       The district judge denied the motion. Cravens ultimately pled guilty to both

Counts 1 and 2, but he reserved his right to appeal from the denial of his motion to

dismiss Count 2. The judge sentenced him to 2 years imprisonment on Count 1 and

imposed the mandatory minimum consecutive sentence of 7 years on Count 2, for a total

term of imprisonment of 9 years.




       fully alleged in Count One of this Indictment. In violation of 18 U.S.C.
       § 924(c)(1)(A)(ii).

(R. Vol. 1 at 15 (emphasis added).)
       3
        His argument relied upon language from United States v. Rodriguez-Enriquez,
518 F.3d 1191 (10th Cir. 2008).
       4
         Section 924(c) also defines “crime of violence” as a felony offense “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” (the risk of force clause).
See 18 U.S.C. § 924(c)(3)(B). In seeking dismissal of Count 2, Cravens also argued
armed bank robbery is not a “crime of violence” under the risk of force clause because
that clause, like its similarly worded counterpart in the ACCA (18 U.S.C. §
924(e)(2)(B)(ii)), is unconstitutionally vague. See Johnson II, 135 S. Ct. at 2557, 2563.
Because federal armed bank robbery satisfies the elements clause of § 924(c)(3)(A), we
need not decide whether the risk of force clause is unconstitutional in light of Johnson II.

                                               -5-
                                       II. Discussion

       Whether an offense is a “crime of violence” under § 924(c) is a matter we review

de novo. United States v. Serafin, 562 F.3d 1105, 1107 (10th Cir. 2009); see also United

States v. Munro, 394 F.3d 865, 870 (10th Cir. 2005). In doing so, we employ the

“categorical approach,” looking “only to the fact of conviction and the statutory

definition of the prior offense, and do not generally consider the particular facts disclosed

by the record of conviction.” Serafin, 562 F.3d at 1107-08 (quotation marks omitted);

see also Munro, 394 F.3d at 870.

       Cravens tells us (as he did the district judge) this statute is analogous to robbery

under the common law, which could be committed by exposing or threatening to expose

someone to painful chemicals or by using drugs to render the victim unconscious.

According to him, it matters not a whit that he pled guilty to armed bank robbery using a

firearm (Count 1)5 because the categorical approach requires us to look at the least

culpable conduct criminalized by the armed bank robbery statute and decide whether that

conduct satisfies the elements test of § 924(c)(3)(A). See Moncrieffe v. Holder, --- U.S. -

--, 133 S. Ct. 1678, 1684 (2013). A “dangerous weapon” under federal law, he tells us,

can include virtually any object, including a can of mace or poison. But (and this is key


       5
         Count 1 of the indictment specifically alleged the armed bank robbery involved
use of a firearm. See supra note 1. At the change of plea hearing, Cravens pled guilty to
Count 1 of the indictment and admitted he “had a handgun” in his holster, “pulled it out”
and “showed it to [the tellers].” (R. Vol. 3 at 20.) He does not challenge his Count 1
conviction on appeal nor was his guilty plea conditioned on doing so. (R. Vol. 2 at 6.)
That seems to end the matter. Nevertheless, we press on.

                                                -6-
to his argument) the mandatory enhancement statute requires not just force or even

deadly force, but physical force and chemical force is not physical force.

       It seems sardonically humorous to suggest that armed bank robbery is not a “crime

of violence.” Yet, as is sometimes the case with the categorical approach, a technical

reading of a criminal statute leads to anomalous results. Not here.

       The lynchpin of Cravens’ argument is United States v. Rodriguez-Enriquez, 518

F.3d 1191 (10th Cir. 2008). Rodriguez-Enriquez’s criminal history included a Colorado

conviction for “assault two (drugging a victim).” Id. at 1192. The statute of conviction

prohibited the nonconsensual administration of a drug causing injury to another person.

Id. The district court concluded the conviction was a “crime of violence” under USSG §

2L1.2(b)(1)(A)(ii) because it has “as an element the use, attempted use, or threatened use

of physical force against the person of another.” Id. (quotation marks omitted). We

concluded otherwise.

       The nonconsensual administration of a drug is not the use of “physical force”

because the word “physical” does not “relate[] to the effect of the force” but rather refers

“to the mechanism [or means] by which the force is imparted.” Id. at 1193-94. As such,

it requires a “mechanical impact” or the transfer of kinetic energy to the victim’s body.

Id. at 1194. Because the nonconsensual administration of a drug is achieved by chemical

action, not by a mechanical impact, we concluded such offense is not a “crime of

violence” under the elements clause of the guideline. Id. at 1195; see also United States

v. Perez-Vargas, 414 F.3d 1282, 1285-86 (10th Cir. 2005) (concluding Colorado third-


                                               -7-
degree assault is not a “crime of violence” under § 2L1.2 because it can be committed by

“intentionally exposing someone to hazardous chemicals,” which does not involve the

use or threatened use of physical force); but see United States v. Armijo, 651 F.3d 1226,

1233 (10th Cir. 2011) (“Rodriguez-Enriquez stands for the limited proposition that a

Colorado provision criminalizing the surreptitious drugging of a victim does not involve

the use of physical force.”).

       We are not bound by the Rodriguez-Enriquez decision because the Supreme

Court’s decision in United States v. Castleman, --- U.S. ---, 134 S. Ct. 1405 (2014), freed

us from its language and holding. See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993).

       Castleman was charged with possessing a firearm after being convicted of a

“misdemeanor crime of domestic violence” in violation of 18 U.S.C. § 922(g)(9). 134 S.

Ct. at 1409. Congress defined “misdemeanor crime of domestic violence” as a

misdemeanor offense under federal, state, or tribal law that “has, as an element, the use or

attempted use of physical force . . . .” Id. (quoting 18 U.S.C. § 921(a)(33)(A)).

Castleman claimed his prior conviction under Tennessee law for “intentionally or

knowingly caus[ing] bodily injury to the mother of his child” did not constitute a

“misdemeanor crime of domestic violence” because “it did not have, as an element, the

use of physical force.” Id. (quotation marks omitted). The Supreme Court disagreed.

       The Castleman Court decided the requirement of “physical force” for purposes of

§ 922(g)(9) is satisfied “by the degree of force that supports a common-law battery

conviction,” i.e., “offensive touching.” Id. at 1410, 1413. In doing so, it specifically


                                                -8-
rejected the degree of force (“force capable of causing physical pain or injury to another

person”) it found necessary in Johnson v. United States (Johnson I), 559 U.S. 133, 140

(2010), to satisfy the ACCA’s elements clause. Id. at 1410-13. Castleman’s prior

conviction qualified as a “misdemeanor crime of domestic violence” because the statute

of conviction required the “knowing or intentional causation of bodily injury,” which

“necessarily involves the use of physical force.” Id. at 1413-14.

       In so concluding, the Court rejected the district court’s “reasoning 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.” Id. at

1414 (quotation marks omitted). This time, relying on Johnson I, the Supreme Court

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

opposed to ‘intellectual force or emotional force.’” Id. (quoting Johnson I, 559 F.3d at

138). And, under the common law, the “concept of ‘force’ encompasses even its indirect

application.” Id. It also rejected Castleman’s related argument that poisoning does not

amount to a “use of force”:

       The “use of force” in Castleman’s example is not the act of “sprinkling” 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. at 1415. That same reasoning has been elsewhere employed with a slight variation.6



       6
           See, e.g., United States v. Evans, 699 F.3d 858, 864 (6th Cir. 2012) (“A
                                                                         (Continued . . .)
                                                  -9-
       Cravens claims Castleman did not overrule Rodriguez-Enriquez because it was

limited to deciding the degree of “physical force” necessary to constitute a “misdemeanor

crime of domestic violence.” He says it adopted the common law definition of physical

force, which requires only the slightest touching. In contrast, he says, Johnson I

specifically rejected the common-law definition of “physical force” for purposes of

defining “violent felony” under the ACCA’s elements clause.

       Castleman did indeed reject Johnson I’s construction of the ACCA’s elements

clause for purposes of defining “misdemeanor crime of domestic violence.” But that

rejection concerned only the degree or amount of force necessary to constitute a

misdemeanor crime of domestic violence. The question in this case is the means or

mechanism by which the force must be imparted. As to that question, Castleman

specifically relied on Johnson I’s definition of physical force as “‘force exerted by and

through concrete bodies’ as opposed to ‘intellectual force or emotional force” and

decided the means could be either direct—a punch or a kick—or indirect—poisoning.

Castleman, 134 S. Ct. at 1414 (quoting Johnson I, 559 F.3d at 138). And that reasoning

directly conflicts with our holding in Rodriguez-Enriquez and “warrant[s] our retreat

from its holding.” See Auraria Student Hous. at the Regency, LLC v. Campus Vill.



defendant uses physical force under § 4B1.2(a)(1) when a defendant knowingly sets in
motion a series of events that the defendant knows will result in the application of a force
capable of causing physical pain or injury to another person”; for example, a defendant
who places an unconscious victim in the middle of a road where the victim is run over by
a car uses physical force even though it was the car, rather than the defendant, which
directly caused the victim’s injury) (quotation marks omitted).

                                               - 10 -
Apartments, LLC, 843 F.3d 1225, 1232, 1242 (10th Cir. 2016) (concluding the Supreme

Court had “adopted reasoning that require[d] a different result” from our precedent).

       We recently said as much in United States v. Ontiveros, 875 F.3d 533 (10th Cir.

2017). Ontiveros argued his prior Colorado conviction for second degree assault was not

a crime of violence under USSG § 2K2.1(a)(1). Id. at 535. That guideline, like §

924(c)(3)(A), defined “crime of violence” as a felony offense that “has as an element the

use, attempted use, or threatened use of physical force against the person of another.” Id.

(quotation marks omitted). The statute of conviction, Colo. Rev. Stat. § 18-3-203(1),

prohibited a person from intentionally “caus[ing] serious bodily injury” to another

person. Id. Ontiveros argued that because the statute focuses “on the result of the

conduct (serious bodily injury), not the conduct itself, [it did] not necessarily require a

showing of physical force.” Id. at 536. He relied on Perez-Vargas and Rodriguez-

Enriquez, both of which held intentionally exposing someone to hazardous chemicals did

not involve the use or threatened use of physical force. Id. We concluded the reasoning

of these cases was “no longer viable in light of Castleman.” Id. In so concluding, we

joined a majority of our sister circuits which decided Castleman’s discussion of the

means by which the force must be imparted applied to the “physical force” requirement

in the context of violent felonies. Id. at 537-38 (collecting cases).

       In sum, the “use of physical force” necessary to satisfy the elements clause of §

924(c)(3)(A) includes the indirect application of force, i.e., exposing one to hazardous

chemicals. Therefore, even assuming federal armed bank robbery can be committed by


                                                - 11 -
exposing, or threatening to expose, a person to hazardous chemicals, that constitutes “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) (emphasis added).

       AFFIRMED.



                                          Entered by the Court:



                                          Terrence L. O’Brien
                                          United States Circuit Judge




                                              - 12 -
Case No. 16-8111, United States of America v. Cravens
O’BRIEN, J., concurring.

         When Cravens walked into the Platte Valley Bank he was armed with a handgun:

not poison; not anthrax; not a hazardous chemical; not poisonous snakes. If the facts

were to be considered, federal armed bank robbery would undoubtedly be a “crime of

violence” under 18 U.S.C. § 924(c)(3)(A) because the use or threatened use of a firearm

is unquestionably the use or threatened use of “physical force.” That would be true even

under the reasoning of United States v. Rodriguez-Enriquez, because a bullet penetrating

a victim necessarily involves “mechanical impact.” 518 F.3d 1191, 1194 (10th Cir.

2008).

         But (for at least debatable reasons) these facts are off limits. See Descamps v.

United States, 570 U.S. 254, 133 S. Ct. 2276, 2284-85 (2013). The categorical approach

turns entirely on whether a statute has as an element the use or threatened use of physical

force. We are called upon to suspend disbelief (ignore reality) and instead consider

hypothetical minimal ways a statute might be violated. Defendants come up with some

doozies. Craven’s argument is more sophisticated than some we have seen and is based

upon one of our cases, Rodriguez-Enriquez.

         Castleman overruled Rodriquez-Enriquez on the physical force point. I

enthusiastically agree with the majority opinion as to that. I write separately to suggest

not using the categorical approach in § 924(c) cases. Typically the categorical approach

is applied to prior convictions to determine whether they constitute a predicate offense.
Section 924(c) analysis deals only with the facts of the instant case, not other cases. The

distinction is important.

       In Taylor v. United States, the Supreme Court first applied the categorical

approach in deciding whether a prior conviction constitutes a “violent felony” or “serious

drug offense” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). 495

U.S. 575, 602 (1990). It adopted that approach primarily for two reasons.

       First, the language of § 924(e) suggested Congress intended use of the categorical

approach:

       Section 924(e)(1) refers to “a person who . . . has three previous convictions”
       for—not a person who has committed—three previous violent felonies or drug
       offenses. Section 924(e)(2)(B)(i) defines “violent felony” as any crime punishable
       by imprisonment for more than a year that “has as an element”—not any crime
       that, in a particular case, involves—the use or threat of force.

Id. at 600; see also Johnson v. United States (Johnson II), --- U.S. ---, 135 S. Ct. 2551,

2562 (2015) (the ACCA’s “emphasis on convictions indicates that Congress intended the

sentencing court to look only to the fact that the defendant had been convicted of crimes

falling within certain categories, and not to the facts underlying the prior convictions”)

(quotation marks omitted).

       Second, it noted “the practical difficulties and potential unfairness of a factual

approach,” namely, the sentencing court having to conduct mini-trials to determine the

underlying facts of a prior conviction. Id. at 601; see also Johnson II, 135 S. Ct. at 2562

(“Taylor also pointed out the utter impracticability of requiring a sentencing court to

reconstruct, long after the original conviction, the conduct underlying that conviction.”).



                                              2 
 
              Since Taylor, the categorical approach has been applied in other contexts outside

the ACCA. See, e.g., Esquival-Quintana v. Sessions, --- U.S. ---, 137 S. Ct. 1562, 1567-

68 (2017) (considering whether an alien has been “convicted of an aggravated felony”

under 8 U.S.C. § 1227(a)(2)(A)(iii)); United States v. Castleman, --- U.S. ---, 134 S. Ct.

1405, 1413-14 (2014) (determining whether defendant had “been convicted in any court

of a misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9)); United

States v. Madkins, 866 F.3d 1136, 1144 (10th Cir. 2017) (deciding whether defendant

“has at least two prior felony convictions of either a crime of violence or a controlled

substance offense” under the career offender guideline, USSG § 4B1.1).

              Without much discussion, we have also extended it to deciding whether an offense

is a “crime of violence” or “drug trafficking crime” under 18 U.S.C. § 924(c). See United

States v. Serafin, 562 F.3d 1105, 1107 (10th Cir. 2009); United States v. Munro, 394 F.3d

865, 870 (10th Cir. 2005). But the reasons for applying the categorical approach to

decide whether a past conviction constitutes a predicate offense are simply not present

when deciding the issue in the § 924(c) context.

              For one, § 924(c) does not use the word “conviction.” Rather, it requires an

increased punishment for those who use, carry, or possess a firearm “during and in

relation to [or in furtherance of] any crime of violence or drug trafficking crime.” See 18

U.S.C. § 924(c)(1)(A). In other words, § 924(c) focuses on whether the instant offense is

a “crime of violence” or “drug-trafficking crime.”1

                                                            
              1
        In adopting the use of the categorical approach for deciding whether a prior
conviction is a “violent felony” under the ACCA, Taylor also relied on the use of the
                                                               3 
 
              Moreover, there is no need to conduct a mini-trial to decide the underlying facts of

an instant offense. 654 F.3d at 1142. That determination can be made from readily

available facts and by a jury, if necessary.

              We made this same observation in United States v. Perez-Jimenez, 654 F.3d 1136

(10th Cir. 2011). The sentencing judge concluded Perez-Jimenez was a career offender

under USSG § 4B1.1(a). Id. at 1139. One of the requirements for such status is that

“‘the instant offense of conviction is a felony that is . . . a crime of violence . . . .’” Id.

(quoting USSG § 4B1.1(a)(2)) (emphasis added). The instant offense was possession of

a weapon in prison. Id. at 1139-40. The parties agreed the offense did not satisfy the

force clause or the enumerated offense clause of the guidelines’ “crime of violence”

definition. Id. at 1140. So the question was whether it satisfied the guidelines’ residual

clause. Id. In resolving the question, we decided that consideration of the underlying

facts of the instant offense was permissible:

                     To determine whether a past conviction is for a crime of violence, “we
              employ a categorical approach that looks to the words of the statute and judicial
              decisions interpreting it, rather than to the conduct of any particular defendant
              convicted of the crime.” United States v. Wise, 597 F.3d 1141, 1144 (10th Cir.
                                                                                                                                                                                                
word “element”—rather than the word “involves”—in § 924(e)(2)(B)(i)’s definition of
“violent felony.” 495 U.S. at 600. Section 924(c)’s definition of “crime of violence”
also uses the word “element.” See 18 U.S.C. § 924(c)(3)(A). Nevertheless, the ACCA’s
(now defunct) residual clause used the language “involves conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis
added). This language, which was still in place at the time of Taylor, suggests a fact-
based inquiry. Nevertheless, the Taylor court concluded the facts were not relevant in
deciding whether a prior conviction constitutes a “violent felony” under the ACCA,
whether under the elements, enumerated offense, or residual clauses. 495 U.S. at 600.
Indeed, in Johnson II, the Supreme Court refused to save the residual clause by
abandoning the categorical approach for purposes of applying it. 135 S. Ct. at 2561-62.
 

                                                                                              4 
 
       2010) (citing Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143, 109
       L.Ed.2d 607 (1990)), cert. denied, 79 U.S.L.W. 3710 (2011) . . . .

              However, our precedent explicitly permits the use of a conduct-specific
       inquiry “when considering whether the instant offense is a crime of violence.”
       Riggans, 254 F.3d at 1204 (emphasis added) (quoting United States v. Smith, 10
       F.3d 724, 731 n. 10 (10th Cir.1993)) (internal quotation marks omitted). Under
       the conduct-specific inquiry, the “court correctly consider[s] the facts underlying
       [the defendant’s] conviction” in determining whether it is for a crime of violence.
       Id. Although we have explained that “the practical difficulties of conducting an ad
       hoc mini-trial” require application of the categorical approach to past convictions,
       we may apply a conduct-specific inquiry to instant offenses because “these
       concerns do not apply when the court is examining the conduct of the defendant in
       the instant offense.” Id. at 1203–04 (alteration in original) (quoting United States
       v. Walker, 930 F.2d 789, 794 (10th Cir.1991)) (internal quotation marks omitted).

Id. at 1140-41.

       Admittedly, Perez-Jimenez addressed whether an instant offense satisfied the

residual clause of § 4B1.2(a)(2), i.e., whether it “involves conduct that presents a serious

potential risk of physical injury to another.” (Emphasis added). In this case, on the other

hand, we are concerned with whether the instant offense “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) (emphasis added). But Perez-Jiminez did not rely on

this distinction in deciding the categorical approach did not apply. Rather, the relevant

distinction was between a past conviction and an instant offense.

       A number of district courts have also questioned the use of the categorical

approach in § 924(c) cases, at least in the context of a pretrial motion to dismiss. See

United States v. Checora, 155 F. Supp. 3d 1192, 1195 (D. Utah 2015) (collecting cases).

In Checora, Judge Kimball reasoned:



                                              5 
 
              [W]hile the statutory language between the Armed Career Criminal Act
      (ACCA), which was the genesis of the categorical approach, and 18 U.S.C. §
      924(c)(3) may be similar, the question of whether a crime is a crime of violence
      arises in significantly different contexts under the two statutes. The ACCA
      provides enhanced punishment for persons with three previous convictions for a
      violent felony. A violent felony under the ACCA is any crime punishable by
      imprisonment for more than one year that has as an element the use, attempted
      use, or threatened use of physical force against the person of another. While the
      language of the ACCA’s force clause is nearly identical to § 924(c)(3)(A), a court
      determining whether a prior offense under the ACCA is a violent felony is
      conducting a cold record review of a prior conviction whereas a court determining
      a crime of violence under § 924(c)(3) is looking at a predicate crime that is
      charged in the same case. Because the court in a § 924(c)(3) case is not looking at
      a prior conviction where facts may be lost or unclear, there is no danger of a
      collateral trial or judge found facts. The Court is instead dealing with a live case
      where fresh evidence will be presented to a jury. A jury can and will determine
      whether the government has proven the elements of the alleged predicate crimes
      beyond a reasonable doubt. Sixth Amendment concerns could be quelled by
      putting the factual questions about the violent nature of the crime to the jury and,
      if necessary, obtaining the answers by special verdict.

155 F. Supp.3d at 1195-96 (citations and quotation marks omitted) (emphasis added).

      It is time to re-think our use of the categorical approach in § 924(c) cases. Easily

determined facts are always preferable to rank speculation.




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