`UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

UNITED STATES OF AMERICA,

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)

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v. ) Criminal Action No. 09-358 (EGS)

) ‘} _ ,

KEDRICK BROWN, )
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Defendant.

 

MEMDRANDUM OPINION

Pending before the court is defendant Kedrick Brown’s
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255 in light of the Supreme Court’s decisions in
Johnson v. United States, 135 S. Ct. 2551 (2015) and Welch v.
United States, 136 S. Ct. 1257 (2016). Upon consideration of Mr.
Brown’s motion, the response and reply thereto, the relevant
law, and for the reasons discussed below, the Court GRANTS Mr.
Brown’s motion and will schedule a resentencing.
I. Background

On March 2, 2010, Mr. Brown pleaded guilty to one count of
possession of a firearm by a prior convicted felon, in violation
of 18 U.S.C. § 922(g)(1). Plea Agreement, ECF No. 18. Generally
a defendant convicted of a violation of 18 U.S.C. § 922(g) is
subject to a maximum of 10 years imprisonment, 18 U.S.C. §
924(a)(2), but under the Armed Career Criminal Act (“ACCA”), a
defendant convicted of a violation of 18 U.S.C. § 922(g) is

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subject to a mandatory minimum of 15 years imprisonment as an
armed career criminal if the sentencing court determines that
the defendant has three prior convictions for a “violent felony”
or a “serious drug offense.” 18 U.S.C. § 924(e)(1). Based on
three prior convictions-two “serious drug offense” convictions
in the District of Columbia, and one conviction in North
Carolina for assault with a deadly weapon with intent to kill
(“AWDWIK”) under N.C. Gen. Stat. § 14-32(c), Presentence
lnvestigation Report (“PSR”), ECF No. 22 II 25-26, 28-at his
sentencing on July 29, 2010 the Court accepted the agreement of
the parties that Mr. Brown was an armed career criminal and thus
subject to a mandatory minimum of 15 years imprisonment.
Sentencing Hrg. Tr., ECF No. 40 at 3:3-7, 5:15-20, 8:9-13,
12:16-19. The Court sentenced him to that mandatory minimum
term. Id. at 8:9-13; Judgment, ECF No. 30. On August 2, 2010,
Mr. Brown filed a notice of appeal, Notice of Appeal, ECF No.
28, and on April 19, 2011, the D.C. Circuit dismissed Mr.
Brown's appeal. Order, ECF No. 35.

ACCA defines a “violent felony” as any felony that: (1)
“has as an element the use, attempted use, or threatened use of
physical force against the person of another”; (2) “is burglary,
arson, or extortion, [or] involves use of explosives”; or (3)

“otherwise involves conduct that presents a serious potential

risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).
“These are known respectively as the ‘elements clause,’ the
‘enumerated clause,’ and the ‘residual clause.’” United States
v. Booker, Nos. 04-49, 16-1107, 2017 WL 829094, at *2 (D.D.C.
Mar. 2, 2017). In Johnson v. United States, 135 S. Ct. 2551,
2563 (2015) (hereinafter “Johnson (2015)”), the Supreme Court
held that the residual clause is unconstitutionally vague and
violates due process. The Supreme Court then held in Welch v.
United States, 136 S. Ct. 1257, 1265 (2016) that the holding in
Johnson (2015) announced a new, substantive constitutional rule
that applied retroactively to cases on collateral review. On
June 2, 2016, the Chief Judge for the United States District
Court for the District of Columbia issued a Standing Order
appointing “the Office of the Federal Public Defender for the
District of Columbia to represent any defendant previously
determined to have been entitled to appointment of counsel, or
who is now indigent, to determine whether that defendant may
qualify to seek to vacate a conviction or to seek a reduction of
sentence and to present any motions to vacate a conviction
and/or for reduction of sentence in accordance with Johnson
[(2015)] and Welch.”

Pursuant to the procedures set forth in that Standing

Order, on June 20, 2016 Mr. Brown, through the Federal Public

Defender, filed an abridged § 2255 motion-his first#-to vacate,
set aside, or correct his sentence on the basis of Johnson
(2015), see Def.’s Abridged Mot., ECF No. 41, and on October 26,
2016 he filed a supplemental motion fully briefing the issues
presented in the earlier-filed abridged motion. See Def.'s
Suppl. Mot., ECF No. 43. On December 30, 2016 the government
filed its opposition to Mr. Brown’s § 2255 motion, see Gov’t’s
Opp., ECF No. 45, and on February 16, 2017 Mr. Brown filed his
reply. See Def.'s Reply, ECF No. 50. Mr. Brown's § 2255 motion
is now ripe and ready for the Court’s adjudication.
II. Analysis

A federal prisoner may file a motion to vacate, set aside,
or correct a sentence that “was imposed in violation of the
Constitution or laws of the United States . . . [or] was in
excess of the maximum authorized by law, or is otherwise subject
to collateral attack.” 28 U.S.C. § 2255(a). Mr. Brown argues
that he no longer qualifies as an armed career criminal because
his prior conviction for North Carolina AWDWIK no longer
qualifies as a “violent felony.” Def.'s Suppl. Mot., ECF No. 43
at 2. That is because, Mr. Johnson argues, the far-reaching
residual clause-which almost certainly would have categorized
North Carolina AWDWIK as a “violent felony”-no longer applies

after Johnson (2015), and North Carolina AWDWIK does not qualify

as a “violent felony” under ACCA’s still-valid enumerated and
elements clauses. Id. With only two remaining ACCA predicate
convictions-the two District of Columbia drug offenses that
qualify as “serious drug offenses”-Mr. Brown asserts that he
can no longer be deemed an armed career criminal. Id. at 7-8;
see 18 U.S.C. § 924(e)(1) (requiring three prior “violent
felony” or “serious drug offense” convictions). lf Mr. Brown is
no longer an armed career criminal, then his current 15-year
term of imprisonment is in excess of the applicable 10-year
statutory maximum imposed by 18 U.S.C. § 924(a)(2). See Def.'s
Suppl. Mot., ECF No. 43 at 6. If the Court agrees with Mr.
Brown, it “shall . . . resentence him.” 28 U.S.C. § 2255(b).

In response to Mr. Brown, the government argues that this
Court should not even reach the merits of his § 2255 claim
because, the government maintains, Mr. Brown’s § 2255 claim is
untimely, Gov't's Opp., ECF No. 45 at 8-10, and that claim has
been procedurally defaulted. Id. at 10-12. If the Court does
reach the merits, the government argues that North Carolina
AWDWIK is a “violent felony” under ACCA’s still-valid elements
clause, so Mr. Brown remains an armed career criminal subject to
ACCA’s 15-year mandatory minimum sentence. Id. at 12-14.

The Court will first address the government’s statute of

limitations and procedural default arguments. Finding those

arguments unavailing, the Court will proceed to a consideration
of the merits of Mr. Brown’s § 2255 claim. For the reasons
discussed below, the Court ultimately determines that Mr. Brown
is entitled to the relief that he seeks.

A. Statute of Limitations

There is a one-year statute of limitations applicable to §
2255 motions. 28 U.S.C. § 2255(f). The limitation period runs
from the latest of four statutorily-specified dates, including,
as relevant here, “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.” Id. §
2255(f)(3). The government concedes that “Jchnson (2015)
triggered the exception to the one-year statute of limitations
set forth in 28 U.S.C. § 2255(f)(3),” but it argues that Mr.
Brown “has not shown that the claim in his § 2255 motion is in
fact predicated on Johnson (2015).” Gov’t’s Opp., ECF No. 45 at
8-9. Instead of being based on Johnson (2015), the government
maintains that the claim in Mr. Brown's § 2255 motion is
predicated on Curtis Johnson v. United States, 559 U.S. 133
(2010) (hereinafter “Johnson (2010)”) and is thus untimely. Id.
at 9-10. In Johnson (2010), the Supreme Court examined ACCA’s

elements clause-not the residual clause that was at issue in

Johnson (2015)-and held that in the elements clause “the phrase
‘physical force’ means violent force-that is, force capable of
causing physical pain or injury to another person.” 559 U.S. at
140. The government makes two arguments to support its view that
Mr. Brown’s motion is based on Johnson (2010), not Johnson
(2015), and is thus barred by § 2255(f)'s one-year limitation
period. Neither argument is persuasive.

First, the government argues that Mr. Brown has the burden
of showing that this Court relied upon ACCA's residual clause,
rather than the elements clause, when it determined that his
prior conviction for North Carolina AWDWIK qualified as an ACCA
“violent felony.” Gov’t's Opp., ECF No. 45 at 9. The
government’s theory seems to be that if Mr. Brown does not carry
that burden, then the Court must conclude that it did not rely
upon the residual clause and thus must conclude that Mr. Brown
is not asserting a claim based on the ruling in Johnson (2015)
that the residual clause is unconstitutionally vague. See id.

Although two panels of the Eleventh Circuit have suggested
that it is the petitioner’s burden to establish that the
sentencing court relied upon the residual clause, see In re
Moore, 830 F.3d 1268, 1273 (11th Cir. 2016); In re Hires, 825
F.3d 1297, 1299 (11th Cir. 2016), a “subsequent panel of the

Eleventh Circuit and numerous district courts . . . have

rejected that same argument.” Booker, 2017 WL 829094, at *4
(citing In re Chance, 831 F.3d 1335, 1340-41 (11th Cir. 2016);
United States v. Britto, No. 04-143, 2017 WL 515007, at *1-2
(N.D. Okla. Feb. 8, 2017); United States v. Mims, Nos. 05-20079-
01, 16-2332, 2017 WL 477091, at *3 (D. Kan. Feb. 6, 2017);
Shabazz v. United States, No. 16-1083, 2017 WL 27394, at *5 (D.
Conn. Jan. 3, 2017); Diaz v. United States, Nos. 16-323, 11-381,
2016 WL 4524785, at *5 (W.D.N.Y. Aug. 30, 2016)). Thus, a
majority of courts that have considered the issue “have held
that-when unclear on which ACCA clause the sentencing judge
rested a predicate conviction-the petitioner’s burden is to
show only that the sentencing judge may have used the residual
clause.” See United States v. Winston, No. 01-79, 2016 WL
4940211, at *6 (W.D. Va. Sept. 16, 2016) (collecting cases),
vacated on other grounds, 850 F.3d 677 (4th Cir. 2017). This
reduced burden makes sense for a number of reasons, including
the fact that there was no practical reason for judges to
identify whether they were relying upon the elements or residual
clause prior to June 26, 2015, when the Supreme Court decided in
Johnson (2015) that the residual clause was void for vagueness,
because “[p]rior convictions that were not violent felonies
under the elements clause often fell under the residual clause.”

Booker, 2017 WL 829094, at *3 (citing United States v. Redrick,

841 F.3d 478, 480 (D.C. Cir. 2016)). Accordingly, this Court
adopts the majority position taken by courts that have addressed
this issue and only requires that Mr. Brown demonstrate that
this Court at sentencing may have relied upon the residual
clause, Mr. Brown has met that burden. See Def.'s Reply, ECF No.
50 at 7 (explaining that “[t]he record is certainly unclear in
Mr. Brown’s case”).

Second, the government argues that the claim in Mr. Brown’s
§ 2255 motion is grounded in Johnson (2010) rather than Johnson
(2015) because the “bulk of [Mr. Brown’s] motion is devoted to
arguing that AWDWIK does not qualify as a violent felony under
the elements clause because it can be committed without the use
of violent physical force as defined in Johnson (2010).” Gov’t's
Opp., ECF No. 45 at 10. Because Mr. Brown’s argument relies on
precedent “over a year old,” the government asserts that Mr.
Brown’s claim is untimely under § 2255(f). Id.

But, as other courts have adequately explained, even if an
argument “engages with the [Johnson (2010)] holding, the
availability of that argument . . . is wholly a product of the
new rule announced in [Johnson (2015)].” Shabazz, 2017 WL 27394,
at *6. Before the new rule announced in Johnson (2015), Mr.
Brown “would not have had a viable challenge to his predicate

[North Carolina AWDWIK] conviction[ ] because the [r]esidual

clause would have picked up wherever the [e]lements clause left
off.” Id. ln other words, because Mr. Brown’s North Carolina
AWDWIK conviction almost certainly would have qualified as an
ACCA predicate under the residual clause, it “is only as a
result of [Johnson (2015)'s] voiding of the residual clause that
[Mr. Brown] could reasonably argue” that North Carolina AWDWIK
is not a “violent felony” under the still-valid elements clause
and thus “argue that he is no longer eligible for the ACCA
enhancement.” Diaz, 2016 WL 4524785, at *5 (internal quotation
marks omitted). That Mr. Brown necessarily relies on current
precedent, including Johnson (2010), interpreting ACCA and the
elements clause to demonstrate that his North Carolina AWDWIK
conviction is not a “violent felony” under the elements clause
thus “does not convert his Johnson [(2015)] motion into a habeas

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motion based on older cases.’ Booker, 2017 WL 829094, at *4.

Thus, contrary to the government’s arguments otherwise, Mr.
Brown’s § 2255 motion is predicated on Johnson (2015) and,
accordingly, that motion is timely.

B. Procedural Default

“The procedural default rule generally precludes
consideration of an argument made on collateral review that was

not made on direct appeal, unless the defendant shows cause and

prejudice.” United States v. Hughes, 514 F.3d 15, 17 (D.C. Cir.

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2008). The government argues that Mr. Brown “never argued that
the ACCA’s residual clause was unconstitutionally vague or that
AWDWIK did not qualify as a violent felony under the elements
clause,” Gov’t’s Opp., ECF No. 45 at 10, and that he cannot
establish the cause and prejudice required to excuse his failure
to make these arguments on direct appeal. Id. at 10-12.

The government’s procedural default argument is unavailing
because Mr. Brown has demonstrated both cause and prejudice to
excuse any default. “[W]here a constitutional claim is so novel
that its legal basis is not reasonably available to counsel, a
defendant has cause for his failure to raise the claim ”
Reed v. Ross, 468 U.S. 1, 16 (1984). Well before Mr. Brown was
sentenced on July 29, 2010, the Supreme Court, in James v.
United States, 550 U.S. 192 (2007), had already “rejected
arguments made in dissent that the residual clause was void for
vagueness.” Redrick, 841 F.3d at 481 n.4. Thus, at the time of
Mr. Brown’s sentencing and on his direct appeal “it is fair to
say that no one . . . could reasonably have anticipated Johnson
[(2015)],” id. at 480, and, consequently, “[u]ntil the Supreme
Court announced its new rule in Johnson [(2015)], [Mr. Brown]
did not have a reasonable basis upon which to challenge the

constitutionality of ACCA's residual clause.” Booker, 2017 WL

829094, at *5 (internal quotation marks omitted). Without the

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availability of the basis upon which to challenge the
constitutionality of the broad-sweeping residual clause, see
Redrick, 841 F.3d at 480, Mr. Johnson would have had no reason
to argue that his North Carolina AWDWIK conviction was not a
“violent felony” under the elements clause. See Shabazz, 2017 WL
27394, at *6. Thus it would have been futile for Mr. Brown to
have argued on direct appeal that “ACCA’s residual clause was
unconstitutionally vague” and that “AWDWIK did not qualify as a
violent felony under the elements clause.” See Gov’t's Opp., ECF
No. 45 at 10. Because of this futility, Mr. Brown has
demonstrated cause.

Mr. Brown has also demonstrated prejudice. To establish
prejudice, Mr. Brown must demonstrate that “there is a
reasonable probability that, but for the errors, the result of
the proceeding would have been different.” United States v,
Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003) (internal
quotation marks and alteration omitted). “[T]he possibility of a
sentence reduction if [Mr. Brown] is no longer ACCA-eligible
establishes prejudice.” United States v. Cruz, No. 05-30044,
2017 WL 603176, at *1 (D. Mass. Feb. 14, 2017); see also United
States v. Bryant, No. 12-62, 2017 WL 635498, at *5 (W.D. Va.
Feb. 15, 2017) (explaining that an “alleged error” in sentencing

is an “actual and substantial disadvantage sufficient to

12

establish prejudice”). Mr. Brown was sentenced to 15 years
imprisonment upon this Court’s finding that he was an armed
career criminal. Def.'s Suppl. Mot., ECF No. 43 at 3. If the
Court finds that, in light of Johnson (2015), Mr. Brown can no
longer be deemed an armed career criminal, he will be subject to
a maximum of 10 years imprisonment. Id. The possibility that Mr.
Brown’s sentence will be reduced by at least five years if this
Court concludes that North Carolina AWDWIK is not a “violent
felony” and, consequently, concludes that he is no longer an
armed career criminal establishes prejudice.

Having concluded that Mr. Brown’s § 2255 motion is timely
and that he has demonstrated cause and prejudice sufficient to
excuse any procedural default, the Court will proceed to the
merits of his § 2255 claim.

C. Merits of Mr. Brown’s § 2255 Motion

To determine whether a prior conviction under a state

statute qualifies as a “violent felony” under ACCA, “courts use

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what has become known as the ‘categorical approach.’ Descamps

v. United States, 133 S. Ct. 2276, 2281 (2013). This approach
requires a court to “ask simply whether the elements of the
prior crime meet [ACCA’s] definitions of a violent felony.”
Redrick, 841 F.3d at 482. “If a prior conviction is based on a

statute that sweeps more broadly than this federal definition

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such a conviction cannot qualify as a violent felony under

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the [elements] clause.’ Id. When a prior conviction statute is
“divisible” such that it lists alternative elements that, in
effect, create several different crimes, a court is “to employ
the ‘modified categorical approach’ to determine which
alternative crime the defendant committed.” Id. This modified
categorical approach permits a court to assess “‘a limited class
of documents (for example, the indictment, jury instructions, or
plea agreement and colloquy) to determine what crime, with what
elements, [the] defendant was convicted of.’” Id. (quoting
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016)). The
modified categorical approach is “simply a ‘tool' to implement
the categorical approach, not an exception to the elements-based
approach.” Id. (quoting Descamps, 133 S. Ct. at 2285).

North Carolina AWDWIK under N.C. Gen. Stat. § 14-32(c)
consists of a single, indivisible set of elements: “(l) an
assault; (2) with a deadly weapon; (3) with the intent to kill.”
State v. Garris, 663 S.E.2d 340, 349 (N.C. Ct. App. 2008)
(internal quotation marks and alteration omitted). As explained
above, following Johnson (2015)’s invalidation of the residual
clause, a prior conviction only qualifies as an ACCA “violent
felony” if it falls within the still-valid enumerated or

elements clauses. There is no dispute that North Carolina AWDWIK

14

does not fall within the offenses captured by the enumerated
clause. See 18 U.S.C. § 924(e)(2)(B)(ii) (describing burglary,
arson, extortion, and use of explosives). The dispute thus
narrows to whether North Carolina AWDWIK qualifies as a “violent
felony” under the elements clause.

Mr. Brown argues that North Carolina AWDWIK does not
qualify as a “violent felony” under the elements clause because
it does not have “as an element the use, attempted use, or
threatened use of physical force against the person of another.”
See 18 U.S.C. § 924(e)(2)(B)(i). According to Mr. Brown, North
Carolina AWDWIK lacks this element for two independent reasons.
First, under Johnson (2010), for a crime to be a “violent
felony” under the elements clause it must require “physical
force,” which is “‘violent force'”-that is, force “‘capable of
causing physical pain or injury to another person.’” Def.'s
Suppl. Mot., ECF No. 43 at 11 (quoting 559 U.S. at 140). Mr.
Brown argues that a defendant can be convicted of North Carolina
AWDWIK even in the absence of the “violent force” required by
Johnson (2010), such as when a defendant uses poison in an
attempt to kill someone. Id. at 13 (citing State v. Jones, 283
S.E.2d 546, 547 (N.C. Ct. App. 1981)). Second, Mr. Brown argues
that in order to be a “violent felony” under the elements

clause, a crime must require the intentional or purposeful “use,

15

attempted use, or threatened use” of physical force, not just
the reckless or negligent “use, attempted use, or threatened

II

use of physical force. Def.'s Reply, ECF No. 50 at 27-35.
Because a conviction for North Carolina AWDWIK can be sustained
upon a finding of just culpable or criminal negligence, such a
conviction, Mr. Brown maintains, cannot qualify as a “violent
felony” conviction. Id. at 35-37.l

The government argues that Mr. Brown’s first argument-that
North Carolina AWDWIK cannot be a “violent felony” under the
elements clause because it does not require the “violent force”
described by the Supreme Court in Johnson (2010)-is foreclosed
by United States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016).
Gov’t’s Opp., ECF No. 45 at 12-13. There, the D.C. Circuit
concluded that Maryland armed robbery-a crime that requires

“the use of a dangerous or deadly weapon”-“contains ‘as an

 

1 Mr. Brown raised this mens rea argument for the first time in
his reply. “Generally, new arguments raised for the first time
in reply may be disregarded due to concern that the opposing
party would lose an opportunity to respond.” Caul v. U.S.
Capitol Police, No. 15-1243, 2016 WL 2962194, at *12 n.6 (D.D.C.
May 19, 2016). The Court will not disregard the argument raised
for the first time in reply here because Mr. Brown indicated
that he only became aware of the mens rea argument after his
supplemental motion was filed; he notified the government of his
new argument; and he made clear that he does not oppose any
request by the government to respond to the new argument. See
Def.'s Reply, ECF No. 50 at 24 n.9. Accordingly, and
particularly because of the notice provided to the government,
the Court is confident that the government has not unfairly lost
an opportunity to respond and, thus, will not disregard the mens
rea argument made for the first time in reply.

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element the use, attempted use, or threatened use of physical
force against the person of another,’” and, accordingly, counts
as an ACCA “violent felony.” 841 F.3d at 484. The court
explained that Maryland armed robbery’s “element of ‘use’ of a
dangerous or deadly weapon supplies at minimum a ‘threat' of

ll

physical force against the person of another, and explained
that “because the means employed is a ‘dangerous or deadly
weapon,' the required degree of force-that is, ‘violent
force’-is present.” Id.

At first blush, it does seem like the government is correct
that Redrick forecloses the conclusion that North Carolina
AWDWIK does not require the “violent force” described by Johnson
(2010), lt would seem to be the case that North Carolina
AWDWIK's element of assault “with a deadly weapon,” just like
Maryland armed robbery’s element of use of a “dangerous or
deadly weapon,” includes “the required degree of force-that is,
‘violent force.'” See id.

But that first impression is deceiving. After explaining
that Maryland armed robbery’s element of use of a “dangerous or
deadly weapon” includes the “required degree of force” of
violent force, the Redrick court explained that “[i]n that
respect our case is different than a recent Ninth Circuit

decision, United States v. Parnell, 818 F.3d 974 (9th Cir.

17

2016), holding that a prior Massachusetts armed robbery
conviction was not a violent felony under the [elements]
clause.” Id. The court explained that the cases were different
because “Massachusetts armed robbery does not require ‘use’ of
the dangerous or deadly weapon: the victim does not even need to
be aware of the presence of the weapon.” Id. ln drawing this
distinction, the Redrick court thus indicated that if a
conviction for a crime that has an element involving a
“dangerous or deadly weapon” can be obtained even in the absence
of the victim’s awareness of the weapon, then that crime does
not necessarily require the “violent force” that Johnson (2010)
requires of a “violent felony” under the elements clause.

A defendant can be convicted of North Carolina AWDWIK even
when the victim is not aware of the presence of the weapon: Mr.
Brown points to a case where a defendant was convicted of North
Carolina AWDWIK based on that defendant's attempts to kill his
wife by secretly poisoning her. Def.'s Suppl. Mot., ECF No. 43
at 13 (citing State v. Jones, 283 S.E.Zd 546, 547 (N.C. Ct. App.
1981)). Poisoning is the quintessential sort of criminal
activity where “the victim does not even need to be aware of the
presence of the weapon.” See Redrick, 841 F.3d at 484.
Accordingly, North Carolina AWDWIK does not categorically

require “violent force,” Consequently, Mr. Brown’s North

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Carolina AWDWIK conviction does not qualify as an ACCA “violent
felony.”

To be sure, the Redrick court did consider and reject the
argument “that even if [Maryland armed robbery] includes the
dangerous or deadly weapon component as an element, it still
sweeps too broadly, because a weapon such as poison, an ‘open
flame,’ or ‘lethal bacteria’ could be used and those dangerous
weapons would not supply the requisite ‘physical force against
the person of another.’” Id. at 484. But neither of the Redrick
court’s bases for rejecting this argument directs this Court to
abandon its conclusion that North Carolina AWDWIK, unlike
Maryland armed robbery, does not require “violent force” and
thus is not a “violent felony.”

First, the Redrick court stated that it “doubt[ed] that
these weapons [referring to poison, an open flame, and lethal
bacteria] could be administered without at least some level of
physical force” and supported that statement by citing United
States v. Castleman, 134 S. Ct. 1405, 1415 (2014) for the
proposition that “poison and other ‘indirect' causes of physical
harm require common-law ‘force.’” Id. But this Court does not
read the Redrick court’s statement here as a holding that
common-law force meets the Johnson (2010) threshold for “violent

force” precisely because the Supreme Court explained in

19

Castleman that in Johnson (2010) the Court “declined to read the
common-law meaning of ‘force’ into ACCA’s definition of a
‘violent felony.’” 134 S. Ct. at 1410. Thus the Supreme Court in
Castleman reiterated and reaffirmed-and did not alter-its
holding from Johnson (2010) that in ACCA “the phrase physical
force must mea[n] violent force,” not common-law force. Id.
(internal quotation marks omitted) (quoting Johnson (2010), 559
U.S. at 140). Accordingly, this Court takes the Redrick court’s
statement that poison and other indirect causes of physical harm
“could [not] be administered without at least some level of
physical force” as an observation that common-law force is not
absent when poison and other indirect causes of harm are used as
a crime’s “dangerous or deadly weapon” rather than as a holding
that in this Circuit common-law force can be equated with
Johnson (2010)-style “violent force.” Understood properly in
this manner, the Redrick court’s statement about “some level of
physical force” does not require this Court to conclude that
North Carolina AWDWlK-which can be committed through the secret
use of poison-is a “violent felony.”

Second, the Redrick court stated that the hypotheticals
concerning poison, an open flame, and lethal bacteria in the
context of Maryland armed robbery were “too farfetched” to give

it any pause. 841 F.3d at 484-85. The court explained that the

20

Supreme Court “has cautioned against excessive ‘legal
imagination,'" id. (citing Gonzales v. Duenas-Alvarez, 549 U.S.
183, 193 (2007); Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85
(2013)), and thus in “determining whether a state statute
qualifies as a violent felony, we focus on ‘realistic
probabilities,’ not ‘theoretical possibilities’ that Maryland
‘would apply its law to conduct that falls outside’ the
[elements] clause.” Id. (alterations omitted) (citing Duenas-
Alvarez, 549 U.S. at 193). Accordingly, because it had been
pointed to no Maryland case in which a Maryland armed robbery
conviction had actually been obtained based on the use of
poison, an open flame, or lethal bacteria, the Redrick court
would not contemplate concluding that Maryland armed robbery did
not require “violent force.” Id. ln the context of North
Carolina AWDWIK, however, a conviction based on secret poisoning
is hardly a figment of the legal imagination. As Mr. Brown has
demonstrated, such a conviction is grounded in a realistic
rather than a theoretical possibility: At least one North
Carolina AWDWIK conviction has been obtained based on secret
poisoning. See Def.'s Suppl. Mot., ECF No. 43 at 13 (citing
State v. Jones, 283 S.E.Zd 546, 547 (N.C. Ct. App. 1981)). Thus,

under the categorical approach, North Carolina AWDWlK-unlike

21

Maryland armed robbery-does not require “violent force” and,
accordingly, does not qualify as an ACCA “violent felony.”

ln any event, even if this Court has misunderstood Redrick,
Mr. Brown’s alternative argument-that in order to be a “violent
felony” under the elements clause, a crime must require the
intentional or purposeful “use, attempted use, or threatened
use” of physical force and North Carolina AWDWIK merely requires
culpable or criminal negligence-demands the conclusion that
North Carolina AWDWIK is not a “violent felony” under the
elements clause. ln Leocal v. Ashcroft, 543 U.S. 1 (2004), the
Supreme Court interpreted 18 U.S.C. § 16, which is in relevant
part identical to ACCA's elements clause, and concluded that the
“key phrase in § 16(a)-the ‘use . . . of physical force against
the person or property of another’-most naturally suggests a
higher degree of intent than negligent or merely accidental
conduct.” 543 U.S. at 9. Although the Court expressly indicated
that it was not deciding whether a crime that merely requires
reckless conduct would be sufficient under § 16(a), id. at 13,
courts have appropriately extended Leocal to conclude that a
crime must require intentional or purposeful conduct, not just
reckless or negligent conduct, to qualify as a “violent felony”
under ACCA’s elements clause. lndeed, “most decisions to address

the question have found that a conviction that requires a mens

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rea of only recklessness does not satisfy ACCA's [elements]
clause.” Bennett v. United States, Nos. 94-11, 16-251, 2016 WL
3676145, at *3 (D. Me. July 6, 2016) (citing Parnell, 818 F.3d
at 981 & n.5; United States v. Dixon, 805 F.3d 1193, 1197 (9th
Cir. 2015); United States v. Holloway, 630 F.3d 252, 261-62 (1st
Cir. 2011); United States v. McMurray, 653 F.3d 367, 374-75 (6th
Cir. 2011); Cutshaw v. United States, Nos. 09-70, 16-106, 2016
WL 3212269, at *2 (E.D. Tenn. June 7, 2016)). This Court adopts
that prevailing approach: A crime for which a conviction can be
obtained based on a showing of mere reckless or negligent
conduct cannot be a “violent felony” under ACCA’s elements
clause.

The Supreme Court’s recent ruling in Voisine v. United
States, 136 S. Ct. 2272 (2016) does not require a contrary
conclusion. There, the Court considered a statute that prohibits
any person convicted of a “misdemeanor crime of domestic
violence” from possessing a firearm. 136 S. Ct. at 2276 (citing
18 U.S.C. § 922(g)(9)). A “misdemeanor crime of domestic
violence” includes any misdemeanor that “‘has, as an element,
the use or attempted use of physical force.” Id. (quoting 18
U.S.C. § 921(a)(33)(A)(ii)). The question before the Court was
“whether misdemeanor assault convictions for reckless (as

contrasted to knowing or intentional) conduct trigger the

23

statutory firearms ban.” Id. The Court held that they do, as it
concluded that offenses requiring only a recklessness mens rea
qualify as “misdemeanor crimes of domestic violence.” Id.

Even though the statutory language in § 921(a)(33)(A)(ii)
at issue in Voisine largely mimics that of ACCA’s elements
clause, compare ACCA, 18 U.S.C. § 924(e)(2)(B)(i) (“has as an
element the use, attempted use, or threatened use of physical
force against the person of another”), with 18 U.S.C. §
921(a)(33)(A)(ii) (“has, as an element, the use or attempted use
of physical force”), this Court follows the lead of various
other District Courts in concluding that that linguistic
similarity should not mean that recklessness is a sufficient
mens rea for purposes of ACCA’s elements clause. See, e.g.,
United States v. Lattanzio, No. 93-30017, 2017 WL 519241, at *5-
6 (D. Mass. Feb. 8, 2017); United States v. Sabetta, Nos. 00-
135, 00-142, 03-69, 04-50, 06-45, 12-8, 13-36, 2016 WL 6157454,
at *8-9 (D.R.l. Oct. 24, 2016); Bennett, 2016 WL 3676145, at *3-
4. Among the various well-reasoned justifications those courts
have already articulated for not understanding Voisine to mean
that recklessness is a sufficient mens rea in the context of
ACCA’s elements clause, the Court finds particularly persuasive
the fact that the “Supreme Court had previously defined terms

that are used identically in the ACCA and the Misdemeanor

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Domestic Violence Act to have different meanings.” Sabetta, 2016
WL 6157454, at *9. As explained above, in Johnson (2010) the
Court held that the term “physical force” in ACCA means “violent
force-that is, force capable of causing physical pain or injury
to another person,” 559 U.S. at 140, but in Castleman the Court
held that “Congress incorporated the common-law meaning of
‘force’-namely, offensive touching-in § 921(a)(33)(A)’s
definition of a ‘misdemeanor crime of domestic violence.'” 134
S. Ct. at 1410. The primary reason for the difference between
the holdings in Johnson (2010) and Castleman seems to be that
the Supreme Court has concluded that “when Congress defines a
misdemeanor, it intends a lower bar for culpability than when it
defines a felony, even when it uses some of the same words to
describe both types of offenses.” Sabetta, 2016 WL 6157454, at
*9; see also Bennett, 2016 WL 3676145, at *3 (“[T]he logic and
language of the Supreme Court’s 2014 decision in Castleman make
clear that the statutory interpretation of § 921(a)(33)([A]) and
§ 924(e)(2)(B)(i) must be undertaken separately.”). Thus, “the
lower mens rea sufficient for a predicate misdemeanor is not
necessarily sufficient for a violent felony.” Sabetta, 2016 WL
6157454, at *9. Accordingly, even after Voisine, this Court

concludes that the prevailing position that it has adopted-that

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a crime that requires a mens rea of only recklessness or less
does not satisfy ACCA’s elements clause-should not be altered.2
Because a North Carolina AWDWIK conviction can be obtained
by a mere showing of culpable or criminal negligence, it does
not qualify as a “violent felony” under ACCA’s elements clause.
ln State v. Jones, 538 S.E.2d 917 (N.C. 2000), the North
Carolina Supreme Court explained that “culpable or criminal
negligence may be used to satisfy the intent requisites for
certain dangerous felonies,” including North Carolina AWDWIK.
538 S.E.2d at 923. lt further explained that “culpable or
criminal negligence” is defined as “such recklessness or
carelessness, proximately resulting in injury or death, as
imports a thoughtless disregard of consequences or a heedless
indifference to the safety and rights of others.” Id. (internal
quotation marks omitted). Because the mens rea required for a

North Carolina AWDWIK conviction is less than intent or

 

2 The Eighth Circuit, in United States v. Fogg, 836 F.3d 951 (8th
Cir. 2016), concluded that, after Vbisine, reckless conduct
“constitutes a ‘use’ of force under the ACCA because the
[elements] clauses in 18 U.S.C. § 921(a)(33)(A)(ii) and the ACCA
both define qualifying predicate offenses as those involving the
‘use . . . of physical force’ against another.” 836 F.3d at 956.
This Court does not adopt the Fogg view because, as already
explained, sheer linguistic similarity between the elements
clauses of § 921(a)(33)(A)(ii) and ACCA does not adequately
account for the appropriately differing treatment of those two
similarly worded statutes that has been underscored by the
Supreme Court’s disparate holdings in Johnson (2010) and
Castleman.

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purpose-indeed, it is less than even recklessness, see United
States v. Peterson, 629 F.3d 432, 437 (4th Cir. 2011)
(“‘Thoughtless disregard,’ . . . is less than ‘conscious
disregard,’ which is the definition of recklessness under the
Model Penal Code.”)-that crime is not a “violent felony” under
ACCA’s elements clause.

This Court thus parts ways with the District Court in
Jackson v. United States, Nos. 07-110, 16-353, 2017 WL 455395
(E.D.N.C. Feb. 2, 2017), which held that because North Carolina
AWDWIK has the element of “specific intent to kill,” that
crime’s mens rea is sufficient for purposes of ACCA’s elements
clause to qualify it as a “violent felony.” 2017 WL 455395, at
*3. ln a case decided by the same District Court the same day as
Jackson that similarly concluded that North Carolina assault
with a deadly weapon with intent to kill inflicting serious
injury (“AWDWIKISI”) can qualify as an ACCA “violent felony”
because of its element of specific intent, Goins v. United
States, Nos. 10-107, 16-95, 2017 WL 455400, at *3 (E.D.N.C. Feb.
2, 2017), the District Court provided three reasons as to why it
was of the view that the North Carolina Supreme Court’s
statements in Jones were “inapposite”: (1) the statement in
Jones concerning culpable or criminal negligence’s applicability

to North Carolina AWDWIK and AWDWIKISI was dicta; (2) North

27

Carolina Supreme Court cases prior to Jones state unequivocally
that AWDWIK and AWDWIKISI require specific intent to kill rather
than carelessness, culpable negligence, or recklessness; and (3)
in Jones, the North Carolina Supreme Court qualified its earlier
statement in dicta by stating more specifically that AWDWIK and
AWDWIKISI “have required actual intent on the part of the
perpetrator.” Id. at *4 (internal quotation marks omitted).
Thus, the Jackson-Goins District Court is of the view that
“Jones does not detract from the conclusion that [AWDWIK and]
AWDWIKISI meet[ ] the mens rea requirements for a violent felony
under the ACCA.” Id.

This Court respectfully disagrees. First, that the North
Carolina Supreme Court in Jones said in dicta that a North
Carolina AWDWIK conviction requires only culpable or criminal
negligence is of little moment, as dicta can be authoritative.
Cf. United States v. Dorcely, 454 F.3d 366, 375 (D.C. Cir. 2006)
(“[C]arefully considered language of the Supreme Court, even if
technically dictum, generally must be treated as
authoritative.”) (internal quotation marks omitted). Second, in
light of the North Carolina Supreme Court’s authoritative
statement in Jones, this Court will not understand North
Carolina AWDWIK's mens rea requirement in the manner it may have

been understood prior to Jones. And third, the North Carolina

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Supreme Court in Jones did not “qualif[y] its earlier statement
in dicta.” See Goins, 2017 WL 455400, at *4. lnstead, when the
Jones Court stated that North Carolina AWDWIK “required actual
intent on the part of the perpetrator,” it made clear that that
greater mens rea of actual intent is required only when AWDWIK
is serving as an underlying felony for purposes of the felony
murder rule. 538 S.E.2d at 925 (“Although a showing of culpable
negligence can satisfy the intent requirement for certain
aforementioned crimes, [including AWDWIK,] it has not formed the
basis of intent for a first-degree murder conviction.”). Thus,
when North Carolina AWDWIK is charged as a stand-alone crime, a
showing of culpable or criminal negligence is all that is
required. Accordingly, North Carolina AWDWIK is not a “violent
felony” under ACCA's elements clause.
III. Conclusion

Because North Carolina AWDWIK is not a “violent felony”
under ACCA, Mr. Brown no longer has the three prior convictions
necessary for him to be designated an armed career criminal
under ACCA. Accordingly, the 15-year term of imprisonment that
he is currently serving pursuant to ACCA is in excess of the
now-applicable statutory maximum of 10 years. Mr. Brown has thus
demonstrated that he is serving a sentence that is in excess of

the maximum authorized by law, Accordingly, the Court GRANTS Mr.

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Brown’s § 2255 motion to correct his sentence and will schedule
his resentencing forthwith. An appropriate Order accompanies
this Memorandum Opinion.

SO ORDERED.
Signed: Emmet G. Sullivan

United States District Judge
April 12, 2017

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