                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,

           v.                                              Criminal No. 03-10 (CKK)
                                                         Civil Action No. 16-1241 (CKK)
 DONALD EARL TAYLOR,
 also known as MICHAEL DICKENS,

    Defendant.


                                 MEMORANDUM OPINION
                                    (August 9, 2017)

       Presently before the Court are Defendant Donald Earl Taylor’s [23] Motion Under 28

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, and Mr. Taylor’s [26] Supplemental

Motion to Vacate Judgment Under 28 U.S.C. § 2255. Upon a searching review of the parties’

submissions, 1 the relevant authorities, and the record as a whole, the Court finds that Mr. Taylor

no longer qualifies for a sentencing enhancement pursuant to the Armed Career Criminal Act based

on his prior criminal convictions in light of the Supreme Court of the United States’ holding in

Johnson v. United States, -- U.S. --, 135 S. Ct. 2551 (2015). Accordingly, the Court shall GRANT

Mr. Taylor’s [23] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, and

[26] Supplemental Motion to Vacate Judgment Under 28 U.S.C. § 2255, and set this matter for a




       1
         While the Court renders its decision today on the record as a whole, its consideration has
focused on the following documents: Def.’s Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence (“Def.’s Mot.”), ECF No. [23]; Def.’s Supp. Mot. to Vacate Judgment Under
28 U.S.C. § 2255 (“Def.’s Supp. Mot.”), ECF No. [26]; Govt.’s Opp’n to Def.’s Mot. & Supp.
Mot. to Vacate Judgment Under 28 U.S.C. § 2255 (“Govt.’s Opp’n”), ECF No. [31]; Def.’s Reply
Mem. in Supp. of Mot. & Supp. Mot. to Vacate Judgment Under 28 U.S.C. § 2255 (“Def.’s
Reply”), ECF No. [37]; Govt.’s Surreply to Def.’s Mot. & Supp. Mot. to Vacate Judgment Under
28 U.S.C. § 2255 (“Govt.’s Surreply”), ECF No. [41]; Def.’s Resp. to Govt.’s Surreply (Def.’s
Resp.”), ECF No. [45]; Govt.’s Reply to Def’s Resp. (“Govt.’s Reply”), ECF No. [50].
                                                1
resentencing.

                                        I. BACKGROUND

       On December 10, 2002, Mr. Taylor was arrested and detained after a criminal complaint

was filed against him. On January 9, 2003, an indictment was filed charging Mr. Taylor with one

count of unlawful possession of a firearm and ammunition by a person convicted of a crime

punishable by imprisonment for one year or more pursuant to 18 U.S.C. § 922(g)(1), and one count

of simple possession of a controlled substance pursuant to 21 U.S.C. § 844(a). On April 4, 2003,

Mr. Taylor pled guilty to one violation of § 922(g)(1), pursuant to North Carolina v. Alford, 400

U.S. 25 (1970). As part of the plea agreement, Mr. Taylor acknowledged that based on his prior

criminal record, “pursuant to 18 U.S.C. § 924(e)(1), he may be imprisoned for not less than 15

years for this [§ 922(g)(1)] offense,” and “likely will be considered an Armed Career Criminal

under section 4B1.4 of the United States Sentencing Guidelines.” Plea Agmt. at 1. The Court

dismissed the charge of simple possession of a controlled substance pursuant to 21 U.S.C. § 844(a).

       This matter proceeded to sentencing on July 22, 2003. At that time, a person convicted of

a § 922(g) violation who also had three prior convictions for a “violent felony” or “serious drug

offense” was subject to a 15-year mandatory minimum pursuant to the Armed Career Criminal

Act (“ACCA”). 18 U.S.C. § 924(e)(1) (2002). Further, a “violent felony” was defined as any

crime punishable by a term of imprisonment exceeding one year 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.” Id. § 924(e)(2)(B). Generally,

these clauses are known respectively as the “elements clause,” 2 the “enumerated clause,” and the



       2
           The United States Court of Appeals for the District of Columbia Circuit also has referred
                                                  2
“residual clause.” United States v. Redrick, 841 F.3d 478, 480 & n.3 (D.C. Cir. 2016). Further, at

the time of sentencing, United States Sentencing Guideline (“U.S.S.G.”) § 2K2.1(a)(2) provided a

sentencing enhancement for a defendant who had “at least two felony convictions of either a crime

of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2) (2002). Further, U.S.S.G.

§ 4B1.1(a) provided a sentencing enhancement for a person classified as a Career Offender,

meaning a person whose present conviction was one for a “crime of violence” or “controlled

substance offense,” and had two prior felony convictions for such offenses. A “crime of violence”

was defined for both guideline provisions in materially the same manner as “violent felony”

discussed above. See § 2K2.1(a)(2), comment n.5; U.S.S.G. § 4B1.2(a). The Court notes that at

the time of Mr. Taylor’s sentencing the U.S.S.G. were mandatory and binding on all judges. See

United States v. Booker, 543 U.S. 220, 233 (2005).

       The Court sentenced Mr. Taylor to a term of imprisonment of 15 years (180 months)

followed by a term of supervised release of 3 years (36 months). In imposing this sentence, the

Court found that Mr. Taylor was subject to a 15-year mandatory minimum in light of his prior

convictions. Judg. in Cr. Case, Stmt. of Reasons at 1 (“Armed Career Offender, 15 yrs. mandatory

minimum”); Sent’g Hrg. Tr. (July 22, 2003), at 15:7-10, ECF No. [26-1] (“[T]he court doesn’t

have any choice about the 15 mandatory minimum sentence.”). Specifically, the Court recognized

that Mr. Taylor had: a 1994 conviction for assault with intent to rape in Prince George’s County,

Maryland, PSR ¶ 29; a 1999 conviction for assault with a dangerous weapon in the District of

Columbia, PSR ¶ 31; and a 2001 conviction for distribution of cocaine in the District of Columbia,

PSR ¶ 32. See Sent’g Hrg. Tr. (Jul. 22, 2003), at 4:9-13. As reflected in the Presentence




to the “elements clause” as the “force clause.” See United States v. Redrick, 841 F.3d 478, 480
(D.C. Cir. 2016).
                                                3
Investigation Report, Mr. Taylor was subject to a mandatory minimum term of imprisonment of

15 years pursuant to the ACCA, 18 U.S.C. § 924(e). PSR ¶ 71. Further, the Court applied U.S.S.G.

§§ 2K2.1(a)(2) (increased base level offense based on two prior felony convictions for a crime of

violence or controlled substance offense) and 4B1.4 (Armed Career Criminal enhancement) in

calculating Mr. Taylor’s sentencing range under the U.S.S.G. PSR ¶¶ 19, 25; Sent’g Hrg. Tr. (July

22, 2003), at 3:25—4:1 (adopting PSR as written). Mr. Taylor did not appeal his conviction or

sentence.

       On June 26, 2015, the Supreme Court of the United States (“Supreme Court”) in Johnson

v. United States, -- U.S. --, 135 S. Ct. 2551 (2015), held that the residual clause of the ACCA, §

924(e)(2)(B)(ii), is unconstitutionally vague. Id. at 2563. On April 18, 2016, the Supreme Court

held in Welch v. United States, -- U.S. --, 136 S. Ct. 1257 (2016), that its decision in Johnson

announced a substantive rule that has a retroactive effect in cases on collateral review. Id. at 1268.

In light of these holdings, on June 2, 2016, Chief Judge Beryl A. Howell issued a Standing Order

“appoint[ing] 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 or to present any motions to vacate a conviction and/or for reduction

of sentence in accordance with Johnson and Welch.” Pursuant to the procedures set out in that

Standing Order, Mr. Taylor, through counsel, filed an abridged [23] Motion Under 28 U.S.C. §§

2255 to Vacate, Set Aside, or Correct Sentence on June 21, 2016. The motion currently is pending

before this Court and further briefing on this motion was made in accordance with Chief Judge

Howell’s Standing Orders of June 2, 2016, and September 9, 2016, and subsequent order of this

Court. Mr. Taylor argues that two of his prior convictions no longer qualify as violent felonies



                                                  4
under the ACCA or crimes of violence under U.S.S.G. § 2K2.1(a)(2) in light of the Supreme

Court’s holding in Johnson and, as such, requests that the Court correct his sentence. See generally

Def.’s Supp. Mot., ECF No. [26].

       With respect specifically to Mr. Taylor’s arguments regarding the applicability of certain

provisions of the U.S.S.G., the Court notes that the United States Court of Appeals for the District

of Columbia Circuit (“D.C. Circuit”) extended the reasoning of Johnson to the U.S.S.G., finding

that the similarly worded residual clause of U.S.S.G. § 4B1.2(b) also is unconstitutional under the

void-for-vagueness doctrine. United States v. Sheffield, 832 F.3d 296, 312-13 (D.C. Cir. 2016).

However, after briefing was complete on the instant motion, the Supreme Court in Beckles v.

United States, -- U.S. --, 137 S. Ct. 886 (2017), held that the residual clause of U.S.S.G. §

4B1.2(a)(2) is not void for vagueness because the U.S.S.G. are not subject to a vagueness

challenges under the due process clause. Id. at 890. The Supreme Court noted that its holding did

not render the U.S.S.G. immune from constitutional scrutiny, including scrutiny under the due

process clause. Id. at 895-96. Rather, the majority opinion of the Supreme Court held specifically

that the void-for-vagueness doctrine was inapplicable to the advisory U.S.S.G. Id. at 896. The

Supreme Court explained: “Unlike the ACCA, . . . the advisory Guidelines do not fix the

permissible range of sentences. To the contrary, they merely guide the exercise of a court’s

discretion in choosing an appropriate sentence within the statutory range.” Id. at 892. The

Supreme Court also noted that the U.S.S.G. were initially binding but were subsequently rendered

advisory by the Court through its decision in United States v. Booker, 543 U.S. 220, 233 (2005).

Id. at 893-94. As noted above, Mr. Taylor was sentenced prior to Booker.

       Given that Beckles was decided after the instant motion was briefed, neither party has

discussed the import, if any, of the Supreme Court’s decision in Beckles to Mr. Taylor’s conviction



                                                 5
and sentence imposed prior to Booker. See id. at 903 n.4 (Sotomayor, J., concurring) (“The Court’s

adherence to the formalistic distinction between mandatory and advisory rules at least leaves open

the question whether defendants sentenced to terms of imprisonment before our decision in . . .

Booker . . may mount vagueness attacks on their sentences.”).

        The Court has determined that it need not reach this issue of the applicability of the

U.S.S.G. at this juncture. Rather, the Court’s analysis shall focus on whether Mr. Taylor’s prior

offenses constitute violent felonies under the ACCA. For the reasons described below, the Court

finds that Mr. Taylor was improperly sentenced to a mandatory minimum sentence under the

ACCA and, accordingly, must be resentenced. As such, the Court shall allow the parties to make

any arguments regarding the applicability of the U.S.S.G. in the memoranda in aid of sentencing

prior to resentencing.

                                      II. LEGAL STANDARD

        Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move

the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that the

sentence was imposed “in violation of the Constitution or laws of the United States, or that the

court was without jurisdiction to impose such sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

The circumstances under which such a motion will be granted, however, are limited in light of the

premium placed on the finality of judgments and the opportunities prisoners have to raise most of

their objections during trial or on direct appeal. “[T]o obtain collateral relief a prisoner must clear

a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S.

152, 166 (1982).      Nonetheless, “[u]nless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing



                                                    6
thereon, determine the issues and make findings of fact and conclusions of law with respect

thereto.” 28 U.S.C. § 2255(b). A prisoner may not raise a claim as part of a collateral attack if

that claim could have been raised on direct appeal, unless he can demonstrate either: (1) “cause”

for his failure to do so and “prejudice” as a result of the alleged violation, or (2) “actual innocence”

of the crime of which he was convicted. Bousley v. United States, 523 U.S. 614, 622 (1998).

                                         III. DISCUSSION

        A. Procedural Requirements

        The Government first argues that Mr. Taylor’s claims are not properly before this Court

for several reasons. Generally, a criminal defendant may bring a § 2255 within one year of the

date upon which his or her judgment of conviction becomes final or within one year of certain

other events which essentially reset the clock on the one-year period. See generally 28 U.S.C. §

2255(f). In relevant part, section 2255 provides that a motion brought under this section may be

brought within one year of “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). It is undisputed that the

Supreme Court’s holding in Johnson v. United States, 135 S. Ct. 2551 (2015) (“Johnson (2015)”)

declaring the residual clause of the ACCA unconstitutional was a newly recognized right made

retroactively applicable to cases on collateral review. Welch, 136 S. Ct. at 1268. It also is

undisputed that Mr. Taylor timely raised any claims made under Johnson (2015) pursuant to the

procedures set forth in this jurisdiction by Chief Judge Howell. However, the Government asserts

that Mr. Taylor’s claims nevertheless fail because: (1) this Court did not actually rely on the

residual clause of the ACCA when sentencing Mr. Taylor; (2) Mr. Taylor’s claims are untimely

because his argument does not rely on the Supreme Court’s decision in Johnson (2015), but rather



                                                   7
on an earlier-decided Supreme Court case; and (3) Mr. Taylor’s claims are procedurally defaulted

because he has not demonstrated cause and prejudice for his failure to raise these claims on direct

appeal. The Court shall address each argument in turn.

                1. This Court’s Reliance on the Residual Clause at Sentencing

        First, the Government asserts that Mr. Taylor has not demonstrated that this Court actually

relied on the residual clause of the ACCA with respect to Mr. Taylor’s prior convictions. While

it is true that the record in this case does not conclusively show that the Court relied on the residual

clause of the ACCA rather than the elements clause at the time of sentencing, this does not bar

Mr. Taylor’s claim. First, the Court does not accept the Government’s premise that a criminal

defendant must make an affirmative showing that the sentencing court relied on the residual clause

rather than the alternative elements clause of the ACCA in order to assert a claim under Johnson

(2015). Indeed, this Court accepts the proposition, as recognized by other district courts in this

jurisdiction and courts of other jurisdictions, that it is sufficient for a criminal defendant to show

that a sentencing judge might have relied on the residual clause in order to proceed. See United

States v. Wilson, No. CR 96-0157 (ESH), 2017 WL 1383644, at *3 (D.D.C. Apr. 18, 2017)

(Huvelle, J.) (collecting cases).

        As District Judge Paul L. Friedman recognized, to hold otherwise would create an “absurd

result.” United States v. Booker, No. CR 04-0049 (PLF), 2017 WL 829094, at *4 (D.D.C. Mar. 2,

2017). At the time of Mr. Taylor’s sentencing, a court was not required to specify which clause

it was relying on to find that the particular offenses qualified as violent felonies under the ACCA

and U.S.S.G. Id. at *3. Nor is it likely that a sentencing judge would have seen the need to make

such a specification several years (in this case, nearly 12 years) before the Supreme Court declared

the residual clause unconstitutional. Further, prior convictions that did not meet the requirements



                                                   8
of the elements clause often satisfied the residual clause. Id. As such, to impose the restriction

advanced by the Government, certain criminal defendants would be barred from raising an

otherwise cognizable claim under Johnson (2015) because the sentencing judge did not specify

which clause she was relying on at a time when that was not required and it could not have been

foreseen that such a specification was necessary. As such, the Court accepts that Mr. Taylor must

show only that this Court may have relied on the residual clause in order to proceed.

       As a practical matter, it is clear from the record that the Court imposed the 15-year term of

imprisonment as a mandatory minimum in light of the prior convictions. As discussed further

below, the Court considered two of Mr. Taylor’s prior offenses as “violent felonies” under the

ACCA. The Court did not specify in reaching this determination whether it was relying on the

elements clause or the unconstitutional residual clause. As such, the Court has determined this is

a sufficient showing in order for Mr. Taylor’s claims under Johnson (2015) to proceed.

               2. Timeliness of Mr. Taylor’s Claims

       The Government next argues that Mr. Taylor’s claims are untimely because the claims

actually are based on the Supreme Court’s decision in Johnson v. United States, 559 U.S. 133, 140

(2010) (“Johnson (2010)”), not Johnson (2015), and, as such, should have been raised within one

year of the former decision. In Johnson (2010), the Supreme Court held that the term “physical

force” as included in the elements clause of the ACCA means “violent force—that is, force capable

of causing physical pain or injury to another person.” Johnson (2010), 559 U.S. at 140. As

discussed above, in Johnson (2015), the Supreme Court found the residual clause of the ACCA

unconstitutional.

       Here, the Government is correct that Mr. Taylor relies in part on the Supreme Court’s

decision in Johnson (2010) in his arguments that his Maryland assault with intent to rape and D.C.



                                                9
assault with a dangerous weapon convictions do not qualify as “violent felonies” under the

elements clause of the ACCA or “crimes of violence” under the U.S.S.G. in light of the definition

of “physical force.”   However, Mr. Taylor advances this argument because those convictions

cannot qualify as “violent felonies” under the residual clause in light of the Supreme Court’s

decision in Johnson (2015). Indeed, “‘[i]t is only as a result of 2015 Johnson’s voiding of the

residual clause that [defendant] could reasonably argue that he is no longer eligible for the ACCA

enhancement.’” Wilson, 2017 WL 1383644, at *4 (quoting Diaz v. United States, No. 1:11-cr-

0381, 2016 WL 4524785, at *5 (W.D.N.Y. Aug. 30, 2016)). Accordingly, the Court finds that Mr.

Taylor’s arguments are sufficiently based on the right that was newly recognized by the Supreme

Court in Johnson (2015) and, because the motion was filed within one year of that decision, the

claims were timely raised.

               3. Procedural Default

       The Government argues that Mr. Taylor’s claims are barred by the procedural default rule

which “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. 2008). “The procedural default rule is neither a statutory nor a

constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial

resources and to respect the law’s important interest in the finality of judgments.” Massaro v.

United States, 538 U.S. 500, 504 (2003).

       Here, it is undisputed that Mr. Taylor did not previously raise his claims. However, Mr.

Taylor asserts that he has demonstrated cause and prejudice sufficient to overcome the procedural

default rule. Further, Mr. Taylor notes he is not requesting that the Court vacate his conviction,

but rather that the Court simply correct his sentence. The Government asserts that Mr. Taylor has



                                               10
procedurally defaulted his claims because: (1) he agreed as part of the plea that he would likely be

considered an Armed Career Criminal and agreed at sentencing that the prior convictions were

“violent felonies”; and (2) he failed to argue before this Court or on appeal that the residual clause

was unconstitutionally vague or that his prior convictions would not satisfy the requirements of

the elements clause. While the Government raises each of these arguments, it only fleshes out its

argument that Mr. Taylor should have raised his Johnson (2010) claims regarding the definition

of a violent felony under the elements clause either before this Court or on direct appeal because

these claims were not so novel at the time of sentencing that their legal basis was not reasonably

available. Indeed, the Government’s position is that Mr. Taylor has not demonstrated “cause” for

failing to raise those arguments before this time. See Govt.’s Opp’n at 11-13. The Court finds

that Mr. Taylor has not procedurally defaulted his claims for the reasons described herein.

       As an initial matter, the Court emphasizes that Mr. Taylor’s failure to raise his claims

related to the elements clause of the ACCA can only be considered in the context of the timing of

Mr. Taylor’s plea and sentencing, which was when the residual clause was available as an

alternative basis to find that a particular conviction qualified under the ACCA. The Court rejects

the Government’s position that the Court must consider whether Mr. Taylor made an argument

that his prior convictions did not qualify under the elements clause when the residual clause had

not yet been declared unconstitutional. As such, the issue before the Court is whether Mr. Taylor

can demonstrate cause and prejudice for failing to argue that his two prior convictions were not

“violent felonies” under either the elements clause or the residual clause at the time of his plea and

sentencing or on direct appeal.

       Turning first to the issue of cause, the Supreme Court explained that “‘futility cannot

constitute cause if it means simply that a claim was ‘unacceptable to that particular court at that



                                                 11
particular time.’” Bousley, 523 U.S. at 623 (quoting Engle v. Isaac, 456 U.S. 130 n.35 (1982)).

However, “a claim that ‘is so novel that its legal basis is not reasonably available to counsel’ may

constitute cause for a procedural default.’” Id. at 622 (quoting Reed v. Ross, 468 U.S. 1, 16 (1984)).

First, as the D.C. Circuit noted, “it is fair to say that no one—the government, the judge, or . . .

[the defendant]—could reasonably have anticipated Johnson [(2015)].” Redrick, 841 F.3d at 480.

Indeed, on two separate occasions following Mr. Taylor’s sentencing, the Supreme Court upheld

the constitutionality of the ACCA’s residual clause before ultimately finding it void for vagueness

in Johnson (2015). See generally Sykes v. United States, 564 U.S. 1 (2011); James v. United States,

550 U.S. 192 (2007). Moreover, the Supreme Court has unequivocally announced that the rule in

Johnson (2015) is applicable retroactively on collateral review. The Court agrees with other

district courts in this jurisdiction that until the Supreme Court’s decision in Johnson (2015), there

was no reasonable basis to challenge the constitutionality of the residual clause and this is

sufficient to establish cause. See Booker, 2017 WL 829094, at *5 (Friedman, J.); United States v.

Brown, No. CR 09-358 (EGS), 2017 WL 1383640, at *4 (D.D.C. Apr. 12, 2017) (Sullivan, J.);

Wilson, 2017 WL 1383644, at *3 (Huvelle, J.).

       Turning next to the issue of prejudice, a defendant must show 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) (quoting United States v. Dale,

140 F.3d 1054, 1056 n.3 (D.C. Cir. 1998)). Here, Mr. Taylor asserts that he was improperly

subjected to a 15-year mandatory minimum sentence under the ACCA that, in light of the Supreme

Court’s holding in Johnson (2015), is not applicable to him. Certainly, if Mr. Taylor’s claims have

merit, he has sufficiently demonstrated that he was prejudiced by being improperly sentenced to a

mandatory minimum term of imprisonment. The Court finds this is sufficient to establish prejudice



                                                 12
for the purposes of the procedural default rule. However, whether Mr. Taylor was actually

prejudiced requires a review of the merits of his claims.

       B. Merits of Mr. Taylor’s § 2255

       Here, Mr. Taylor argues that he no longer qualifies for an enhanced sentence under the

ACCA in light of the Supreme Court’s holding in Johnson (2015). The record in this case does

not clarify which clause of the ACCA this Court relied on in applying the 15-year mandatory

minimum. As previously mentioned, the Court considered three of Mr. Taylor’s prior convictions:

a D.C. conviction for distribution of cocaine; a Maryland conviction for assault with intent to rape

(“AWIR”); and a D.C. conviction for assault with a dangerous weapon (“ADW”). Mr. Taylor

concedes that his conviction in D.C. for distribution of cocaine qualifies as a “serious drug

offense.” Def.’s Supp. Mot. at 5. As such, in light of the Supreme Court’s ruling that the residual

clause is unconstitutionally vague, the question before the Court is whether Mr. Taylor’s two other

prior convictions, Maryland AWIR and D.C. ADW, are “violent felonies” under either the

elements clause or the enumerated clause. The parties agree that these two offenses are not

included in the enumerated clause. However, the parties disagree as to whether these convictions

qualify as violent felonies under the elements clause. Mr. Taylor argues that neither prior

conviction qualifies as such and, accordingly, requests that the Court correct his sentence to reflect

that he does not have three qualifying prior convictions to be sentenced under the ACCA 15-year

mandatory minimum. The Government argues that Mr. Taylor’s sentence is correct because both

prior convictions qualify as violent felonies under the elements clause.

       The elements clause, codified at § 924(e)(2)(B)(i), defines a qualifying offense as one that

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

of another.” The provision does not define “physical force.” However, the Supreme Court has



                                                 13
clarified that in this context “physical force” means “violent force—that is, force capable of

causing physical pain or injury to another person.” Johnson (2010), 559 U.S. at 140.

       In determining whether a particular offense fits within this definition, this Court must either

apply the “categorical approach” or the “modified categorical approach.”              The modified

categorical approach is reserved for those rare instances where the statutory offense is divisible,

and under that approach, the Court would be permitted to review certain documents to determine

whether a particular offense included an element of violence. Sheffield, 832 F.3d at 314 (citing

Descamps v. United States, -- U.S. --, 133 S. Ct. 2276, 2283-84 (2013)). A statute is divisible

when it “comprises multiple, alternative versions of the crime.” Descamps, 133 S. Ct. at 2284-85.

See also Mathis v. United States, 136 S. Ct. 2243, 2251 (2016) (clarifying that a statute is divisible

if it defines alternative “elements,” but not if it merely defines alternative “means” of committing

the offense).

       The parties in this case agree that the D.C. assault with a dangerous weapon statute is not

divisible. Mr. Taylor further contends that the Maryland assault with intent to rape statute is not

divisible, but the Government asserts in its Surreply that, “[if] the Court finds that an assault with

intent to rape can encompass an assault with intent to commit a statutory rape that does not involve

force,” it is arguable that the assault with intent to rape statute is divisible and the modified

categorical approach can be used to permit review of the indictment and criminal jury instructions. 3

See Govt.’s Surreply at 4-7 (emphasis added). Because the Court does not find that an assault with



3
  The Court notes that the Government previously proposed use of the categorical approach. See
Govt.’s Opp’n at 7. Furthermore, the Government’s argument in its Surreply goes beyond the
scope of this Court’s May 17, 2017 Order, ECF No. [38], which permitted the Government to
file a Surreply for purposes of “addressing only Mr. Taylor’s arguments related to determining
the elements of the offense of Maryland assault with intent to rape in light of Mr. Taylor’s
reliance on the language of the Maryland Code, Article 27, § 12, in effect in October 1992 . . . .”
The Govt.’s Surreply at 1-4 addresses this discrete issue.
                                                 14
intent to rape encompasses a statutory rape that does not involve force, the Court need not reach

the Government’s alternative argument.        Accordingly, in this case, the Court employs the

categorical approach to analyze both statutes.

       The categorical approach requires the Court to look only at the statutory definition of a

particular prior offense and not at the particular facts underlying the convictions. Descamps v.

United States, -- U.S. --, 133 S. Ct. 2276, 2283 (2013). As the D.C. Circuit explained:

       [I]n asking whether a prior crime qualifies as a violent felony, we look at the state
       or federal statute under which a defendant has been convicted and ask simply
       whether the elements of the prior crime meet the Act’s definitions of a violent
       felony. If a prior conviction is based on a statute that sweeps more broadly than this
       federal definition — let us say, a conviction could be based on a minor battery —
       such a conviction cannot qualify as a violent felony under the force [or elements]
       clause.

Redrick, 841 F.3d at 482. In sum, the Court must employ a two-step process. First, the Court must

determine the elements of the state law offenses at issue. Second, the Court must determine

whether the force required to commit the state law offense is equivalent to the force required by §

924(e)(2)(B)(i), namely the use, attempted use, or threatened use of violent force capable of

causing physical pain or injury to another person. If the state statute requires the equivalent level

of force, then the prior conviction qualifies as a violent felony under the elements clause.

Otherwise, it does not qualify.

       Maryland AWIR conviction

       In order to establish the Maryland AWIR offense pursuant to Md. Code Ann., art. 27, § 12,

the government must prove three elements: “(1) an assault, (2) with an intention to have carnal

knowledge of a female, and (3) a purpose to carry into effect this intention with force and against




                                                 15
the consent of the female.” 4 Christian v. State, 951 A.2d 832, 838 n.6 (Md. 2008) (citing

          Middleton

v. State, 251 A.2d 224, 227 (1969)). The parties do not dispute that an assault alone, as defined

in Maryland, is categorically not a violent felony under the elements clause because this offense

includes any unlawful touching, whether it is violent or nonviolent and no matter how slight. In

support of this proposition, both parties cite to United States v. Royal, 731 F.3d 333, 342 (4th Cir.

2013), in which the United States Court of Appeals for the Fourth Circuit held that Maryland’s

second-degree assault statute did meet the requirements of a violent felony under the ACCA.

Indeed, in reaching this decision, the Fourth Circuit noted that to be convicted of an assault of the

battery variety under Maryland law requires proof of the following elements: “‘(1) the defendant

caused offensive physical contact with, or harm to, the victim; (2) the contact was the result of an

intentional or reckless act of the defendant and was not accidental; and (3) the contact was not

consented to by the victim or was not legally justified.’” Royal, 731 F.3d at 341 (quoting Nicolas

v. State, 44 A.3d 396, 407 (Md. 2012)). As the Fourth Circuit pointed out, an assault in Maryland

can be accomplished either based on “offensive physical contact” or “physical harm.” Id. at 341.

As such, the Court is left to determine whether an assault that may be accomplished through mere

offensive physical contact, no matter how slight, coupled with the second and third elements

requires a level of force equal to that required by § 924(e)(2)(B)(i). For the reasons described

herein, the Court finds that the Maryland AWIR offense does meet the definition of a violent

felony.

          The parties’ arguments center around two main issues: (1) the amount of force required to




          4
         The parties agree that these are the elements of the offense of Maryland AWIR. Def.’s
Mot. at 18; Govt.’s Opp’n at 14.
                                                 16
commit the crime of rape in Maryland which is relevant to the Court’s inquiry; and (2) the amount

of force required to commit the crime of AWIR in Maryland which is the determinative issue

before the Court. The Court shall address each argument in turn. The Government argues that

“where an assault is committed with the specific intent and purpose to rape, the resulting crime

necessarily requires the use, attempted use, or threatened use of physical force.” Govt.’s Opp’n at

14. Specifically, the Government argues that the requisite level of force is necessary to be

convicted of Maryland AWIR because the crime of rape in Maryland qualifies as a violent felony

and, as such, an assault with the attempt to commit a violent felony must satisfy the elements

clause. Mr. Taylor contests the Government’s argument that the crime of rape necessarily requires

the requisite use of force required under the elements clause of the ACCA.

       At the time of Mr. Taylor’s conviction, Maryland enacted statutes to criminalize first and

second degree rape. First degree rape criminalizes the act of vaginal intercourse with another by

force or the threat of force and without the consent, coupled with other aggravating circumstances,

such as the use or display of a weapon. Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 462.

Neither party disputes that first degree rape would qualify as a violent felony under the ACCA.

Second degree rape does not include the aggravating circumstances required for first degree rape.

Rather, second degree rape requires a person to engage in vaginal intercourse with another person:

       (1) By force or threat of force against the will and without the consent of the other
       person; or

       (2) Who is mentally defective, mentally incapacitated, or physically helpless, and
       the person performing the act knows or should reasonably know the other person is
       mentally defective, mentally incapacitated, or physically helpless; or

       (3) Who is under 14 years of age and the person performing the act is at least four
       years older than the victim.

Garnett, 632 A.2d at 798 (quoting Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 463).



                                                17
        As Mr. Taylor points out, Maryland AWIR covers an assault with the intent to commit not

just first degree rape, but also second degree rape. See Walker v. State, 452 A.2d 1234, 1245 (Md.

Ct. Spec. App. 1982) (“The intended rape for the statutory assault need only be a generalized rape

in the second degree with none of the special violence that makes for rape in the first degree.”).

Mr. Taylor contends that second degree rape in Maryland can be committed with the use of no

force because it includes statutory rape, “a strict liability offense that does not require the State to

prove mens rea.” Garnett v. State, 632 A.2d 797, 804 (Md. 1993). While Mr. Taylor is correct

that statutory rape, a type of second degree rape, does not require the use, attempted use, or

threatened use of physical force capable of causing physical pain or injury to another person, the

offense of AWIR requires proof that the criminal defendant had “a purpose to carry into effect this

intention with force and against the consent of the female.” As such, the statute contemplates that

the intended rape must be forcible and nonconsensual.

         Given that the elements of the AWIR preclude Mr. Taylor’s argument that a defendant

may have the intent to commit a non-forcible rape, the Court is left to consider that the assault

must be completed with the intent to commit a forcible rape contemplated by the statutes – first

degree (or aggravated) rape and second degree rape accomplished “[b]y force or threat of force

against the will and without the consent of the other person.” While the actual use of violent force

is not required to commit the Maryland offense of rape, “the evidence must warrant a conclusion

either that the victim resisted and her resistance was overcome by force or that she was prevented

from resisting by threats to her safety.” Hazel v. State, 157 A.2d 922, 925 (Md. 1960) (defining

common law rape prior to the enactment of the Maryland statutes criminalizing rape); State v.

Rusk, 424 A.2d 720, 726, 728 (Md. 1981) (adopting the definition of requisite force described in

Hazel, noting that force and lack of consent are essential elements of rape, and finding that “threats



                                                  18
of force need not be made in any particular manner in order to put a person in fear of bodily harm”).

As such, forcible first or second degree rape appear to qualify as violent felonies under the ACCA.

        The Court is then left to determine whether an assault (a crime that does not qualify as a

violent felony under the elements clause) with the intent to commit a forcible rape (a crime that

does qualify as a violent felony under the elements clause) has violent force (the use, attempted

use, or threatened use of physical force capable of causing physical pain or injury to another

person) as an element. See United States v. Chacon, 533 F.3d 250, 255 (4th Cir. 2008), cert. denied

555 U.S. 1140 (2009) (finding that a violation of the first subpart of the Maryland second degree

rape statute plainly constitutes a crime of violence because it has an element of the use or threat of

force). Here, a criminal defendant convicted of Maryland AWIR would have been convicted, at a

minimum, based on the attempted use of violent force capable of causing physical pain or injury

to another person necessary to commit a forcible rape. As such, the Court finds that Maryland

AWIR satisfies the elements clause of the ACCA.

        While the Supreme Court left open the issue of whether a court may consider not just the

relevant state statute’s text, but also the judicial ruling interpreting it, the Court notes that Maryland

caselaw supports this Court’s holding. 5 Descamps v. United States, 133 S. Ct. 2276, 2291 (2013);

Redrick, 841 F.3d at 482 n.5 (D.C. Cir. 2016). The Court of Appeals of Maryland explained that

“[t]o constitute the crime of an assault with intent to rape, the indictment must charge force, and

the proof must establish, beyond a reasonable doubt, that the attempt was committed with force, to

justify a conviction.”      Weinecke v. State, 52 A.2d 73, 75 (Md. 1947) (emphasis added)

(distinguishing the crime of assault with intent to rape from assault with intent to have carnal

knowledge of a woman child under the age of fourteen years which does not require proof that the



        5
            The Court notes that both parties rely on caselaw in support of their arguments.
                                                   19
attempt was made with force); see Christensen v. State, 365 A.2d 562, 565 (Md. Ct. Spec. App.

1976) (distinguishing between assault with intent to rape and attempted rape which does not

require an assault). Further, the Court of Special Appeals of Maryland explained, “[A]ssault with

intent to rape would seem to qualify as a specific form of the more general crime of attempted

rape.” Walker v. State, 452 A.2d 1234, 1245 (Md. Ct. Spec. App. 1982).            Indeed, the court

reasoned,

       Although it is easy to imagine an attempted rape not involving an assault, . . . it is
       difficult to imagine an assault with intent to rape that would not, ipso facto,
       constitute an attempted rape. The intent element already being present, the act of
       assault would certainly quality, under attempt law, as the “act in furtherance of that
       intent going beyond mere preparation.”

Id. (internal citation removed) (quoting Gray v. State, 403 A.2d 853, 855, 857 n.7 (Md. Ct. Spec.

App. 1979)).

       The parties have not pointed to, nor has the Court been able to locate, caselaw that appears

to clarify the level of force necessary to satisfy this requirement of the AWIR statute, nor do the

elements of the offense appear to require any force above that required to commit an assault.

However, caselaw demonstrates two important points: (1) Maryland AWIR requires an attempt

committed with force; and (2) Maryland AWIR appears to constitute an attempted rape coupled

with an assault and the specific intent to commit a rape. As such, the Maryland offense of AWIR

at a minimum requires an attempt committed with force to commit a forcible rape, an offense

which requires the requisite level of violent force. The Court finds that the Maryland offense of

AWIR necessarily includes at a minimum an element of the attempted use (although it may also

include the use or threatened use) of violent force—that is, force capable of causing physical pain

or injury to another person—because it requires the specific intent to carry out a rape through the

use of force or threatened use of force and an attempt coupled with some level of force to achieve



                                                20
that end.

               a. D.C. ADW conviction

       The offense of D.C. ADW, codified at D.C. Code § 22-402, consists of four elements:

       (1) “an attempt, with force or violence, to injure another, or a menacing threat,
       which may or may not be accompanied by a specific intent to injure;” (2) “the
       apparent present ability to injure the victim;” (3) a general “intent to commit the
       acts which constitute the assault;” and (4) “the use of a dangerous weapon in
       committing the assault.”

Spencer v. United States, 991 A.2d 1185, 1192 (D.C. 2010) (quoting Williamson v. United States,

445 A.2d 975, 978-79 (D.C. 1982)). This first three elements constitute a simple assault in D.C.

and the fourth element is unique to the crime of ADW. 6 Id. Mr. Taylor advances two arguments

as to why D.C. ADW does not satisfy the elements clause of the ACCA: (1) D.C. ADW can be

violated without the use of violent physical force; and (2) D.C. ADW can be violated with a

reckless mens rea. The Court shall address each in turn.

       With respect to the requisite use of force, the Government concedes that D.C. simple

assault does not require the use of violent force contemplated by the ACCA because it may be

carried out through the mere use of a menacing threat. As such, the Court focuses its analysis on

the additional requirement of “the use of a dangerous weapon in committing the assault.” While

“[n]ot every crime becomes a crime of violence when committed with a deadly weapon,” United

States v. Rede-Mendez, 680 F.3d 552, 558 (6th Cir. 2012), the Court is required to look at the

elements of this particular offense. Mr. Taylor relies primarily on the definition of a dangerous

weapon in D.C., which Mr. Taylor asserts is expansive, in support of his argument.

       The D.C. Court of Appeals recognized that any object “may constitute a dangerous weapon




       6
          Similarly, the D.C. Pattern Jury Instructions describe the elements as (1) simple assault
that is (2) carried out with a dangerous weapon. See D.C. Crim. Jury Instructions § 4.101.
                                                21
under an aggravated assault statute when used in a manner likely to cause great bodily harm, and

that an object’s dangerousness is ordinarily a question for the jury.” In re D.T., 977 A.2d 346, 350

(D.C. 2009). Mr. Taylor then argues that some objects that would be considered “dangerous

weapons” under the statute, like “poison, a tranquilizer, a barrier, and hazardous chemicals,” do

not require the use of violent, physical force. Def.’s Supp. Mot. at 27. To bolster this position,

Mr. Taylor points to two cases in which lye was considered a dangerous weapon for the purposes

of a conviction under the D.C. ADW statute, see Tatum v. United States, 110 F.2d 555, 556 (D.C.

Cir. 1940); Sloan v. United States, 527 A.2d 1277, 1280 (D.C. 1987), and one in which a spray

bottle of gasoline was considered a dangerous weapon, Savage-El v. United States, 902 A.2d 120,

214-25 (D.C. 2006).

       The Government asserts that Mr. Taylor’s arguments regarding the requisite use of force

for the offense of D.C. ADW offense are foreclosed by the D.C. Circuit’s recent opinion in United

States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016). In Redrick, the D.C. Circuit held that the

Maryland offense of armed robbery qualifies as a violent felony under the elements clause. Id. at

485. Similar to the crime at issue here, the D.C. Circuit found in Redrick that robbery in Maryland

is not a violent felony. Id. at 482. However, the D.C. Circuit found that the Maryland offense of

armed robbery required the “use of a dangerous or deadly weapon.” Id. at 484. Relying on this

point, the D.C. Circuit distinguished the Maryland crime from the Massachusetts crime of armed

robbery which the United States Court of Appeals for the Ninth Circuit previously held did not

constitute a violent felony under the elements clause. Id. (citing United States v. Parnell, 818 F.3d

974 (9th Cir. 2016)). The D.C. Circuit in Redrick noted that the Massachusetts statute, unlike the

Maryland offense, did not require the “use” of a dangerous or deadly weapon in that the victim did




                                                 22
not even need to be aware of the presence of the weapon.7 Id. The D.C. Circuit found the

Maryland offense distinguishable because of the requirement of the “use” of the weapon. Id.

        The D.C. Circuit also focused on the type of weapon that would constitute a dangerous or

deadly weapon for the purposes of the crime of Maryland armed robbery. The Maryland offense

indeed has a more extensive definition than that provided for D.C. ADW. Specifically, a “deadly

or dangerous weapon” for the crime of Maryland armed robbery is defined as an instrument:

        “(1) designed as ‘anything used or designed to be used in destroying, defeating, or
        injuring an enemy, or as an instrument of offensive or defensive combat’; (2) under
        the circumstances of the case, immediately useable to inflict serious or deadly harm
        (e.g., unloaded gun or starter’s pistol useable as a bludgeon); or (3) actually used
        in a way likely to inflict that sort of harm (e.g., microphone cord used as a
        garrote).”

Id. at 484 n.6 (quoting Brooks v. State, 314 Md. 585, 552 A.2d 872, 880 (Md. 1989)) (emphasis

added). In Redrick, the D.C. Circuit rejected the defendant’s argument that the conduct covered

swept too broadly because the weapon at issue could include poison, an open flame, or a lethal

bacteria. Id. at 484. The D.C. Circuit noted first that it “doubt[ed] these weapons could be

administered without at least some level of physical force,” and ultimately found “the

hypotheticals . . . to farfetched to give . . . [the court] pause.” Id.

        The D.C. Circuit’s opinion in Redrick is instructive in this Court’s analysis for a number

of reasons. First, both Maryland robbery and D.C. assault (without the use of a weapon) are not

violent felonies under the elements clause of the ACCA because they do not require the requisite

use of physical force. Second, both Maryland robbery and D.C. assault are necessarily crimes



        7
          Unlike the Massachusetts statute, the D.C. ADW offense at issue here considers the
circumstances as viewed from the perspective of the victim. See Perry v. United States, 36 A.3d
799, 811 (D.C. 2011) (quoting Sousa v. United States, 400 A.2d 1036, 1044 (D.C. 1979)) (“It is
not the secret intent of the assaulting party, nor the undisclosed fact of his ability or inability to
commit a battery that is material, but what his conduct and the attending circumstances denote at
the time to the party assaulted.”).
                                                    23
against a person. See id. Third, both Maryland armed robbery and D.C. ADW have an element

requiring the use of a dangerous weapon (the Maryland offense also allows for use of a “deadly”

weapon). Finally, while the Maryland offense of armed robbery has a lengthier definition of what

constitutes a “deadly or dangerous weapon,” the last provision of the definition is similar to

definition used for the D.C. ADW offense. Indeed, the Maryland definition includes an instrument

“actually used in a way likely to inflict that sort of harm [serious or deadly] (e.g., microphone cord

used as a garrote),” and the D.C. definition is an object “used in a manner likely to cause great

bodily harm.”

       Mr. Taylor makes two arguments as to why the D.C. Circuit’s decision in Redrick is

distinguishable. First, Mr. Taylor asserts that the D.C. definition of a dangerous weapon sweeps

more broadly than that of the Maryland definition. The Court rejects this argument based on the

third clause of the Maryland definition which the Court finds substantially similar to the D.C.

definition as described above. Second, Mr. Taylor asserts that that there is a realistic probability

that D.C. ADW, unlike Maryland armed robbery, would be accomplished through the use of

materials requiring less than violent physical force. Indeed, as previously discussed, Mr. Taylor

relies on the cases in which D.C. ADW convictions were supported through the use of lye and

gasoline. The Court agrees with Mr. Taylor that unlike the Maryland offense of armed robbery, it

is far more likely that an assault with a dangerous weapon would be accomplished through the use

of an object like a poison that could be administered without the use of violent physical force as

required under the ACCA. 8 C.f. Brown, No. CR 09-358 (EGS), 2017 WL 1383640, at *7 (finding




       8
          While the Government relies on the Supreme Court’s holding in Castleman to support its
position, Castleman addresses the common law use of force, not the higher level of force required
under the ACCA and, accordingly, is distinguishable. See United States v. Castleman, -- U.S. --,
134 S. Ct. 1405, 1410, 1414-15 (2014).
                                                 24
that the North Carolina offense of assault with a deadly weapon with intent to kill was not a violent

felony under the ACCA’s elements clause because at least one case reflected a conviction based

on a secret poisoning). As such, the Court agrees that a person could be convicted of D.C. ADW

without using the requisite violent, physical force necessary to qualify as a violent felony under

the ACCA.

        Turning next to the issue of the requisite mens rea, the parties agree that reckless conduct

is sufficient to support a conviction for D.C. ADW. Vines v. United States, 70 A.3d 1170, 1180

(D.C. 2013), as amended (Sept. 19, 2013) (“[A] conviction for ADW can be sustained by proof of

reckless conduct alone.”). However, the parties disagree as to whether a violent felony under the

elements clause includes offenses that can be accomplished recklessly, meaning without the

intentional use, attempted use, or threatened use of violent force. This appears to be an open issue

in this jurisdiction.

        Three Supreme Court cases addressing similarly worded provisions of two different

statutes are of particular importance in reaching a decision on this issue. In 2004, the Supreme

Court addressed whether a conviction in Florida for driving under the influence of alcohol and

causing serious bodily injury classified as a “crime of violence” under 18 U.S.C. § 16(a), which

defines a crime of violence in a similar manner as the elements clause of the ACCA. Leocal v.

Ashcroft, 543 U.S. 1, 4-5 (2004). 9 As the Supreme Court explained, it granted certiorari in that

case “to resolve a conflict among the Court of Appeals on the question whether state DUI offenses

similar to the one in Florida, which either do not have a mens rea component or require only a

showing of negligence in the operation of a vehicle, qualify as a crime of violence.” Id. at 6. The



        9
         At issue in that case was whether the defendant had committed an “aggravated felony”
under the Immigration and Nationality Act (“INA”), which adopted the definition of a crime of
violence under § 16, rendering him deportable. Leocal, 543 U.S. at 4.
                                                 25
Supreme Court found that “[t]he 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.” Id. at 8. As such, the Supreme Court held that the defendant’s

conviction did not qualify as a crime of violence under § 16(a). Id. However, the Supreme Court

specifically noted that the case did not involve the question of whether a state statute requiring

proof of the reckless, rather than negligent, use of force against a person or property qualified as a

crime of violence under § 16. Id. at 13.

       In 2014, the Supreme Court addressed the meaning of the phrase “the use . . . of physical

force,” as referenced in 18 U.S.C. § 922(g)(9), which prohibits a person convicted of a

misdemeanor crime of domestic violence from possessing a firearm. United States v. Castleman,

-- U.S. --, 134 S. Ct. 1405, 1408-09 (2014). In that case, the Supreme Court considered the

Tennessee offense of assaulting a family or household member, which incorporated by reference

a Tennessee statute defining assault. Id. at 1413. The Supreme Court noted that not every type of

assault in the statute involved the use or attempted use of physical force or the threatened use of a

deadly weapon as required under § 922(g)(9). Id. at 1413-14. Indeed, the Court noted that “the

merely reckless causation of bodily injury under . . . [a provision of the Tennessee assault statute]

may not be a ‘use’ of force.” Id. at 1414 (emphasis added). However, the Supreme Court did not

reach a decision on this issue because the Court found that the statute was divisible and, employing

the modified categorical approach, found that the defendant violated a different provision of the

statute that required the knowing or intentional application of force. Id. In a footnote, the Supreme

Court referenced its 2004 decision discussed above, noting that it expressly reserved the question

of whether the reckless application of force constituted the “use” of force. Id. at 1414 n.8.

However, the Court noted that “the Court of Appeals have almost uniformly held that recklessness



                                                 26
is not sufficient.” Id.

        In 2016, the Supreme Court again discussed § 922(g)(9), but in this instance addressed the

issue of “whether misdemeanor assault convictions for reckless (as contrasted to knowing or

intentional) conduct trigger the statutory firearms ban.” Voisine v. United States, -- U.S. --, 136 S.

Ct. 2272, 2276 (2016). In that case, the Supreme Court held that a “misdemeanor crime of

violence,” which requires that the offense have “as an element, the use or attempted use of physical

force,” includes assault convictions in the domestic context for reckless conduct. Id. at 2278. In

reaching this holding the Court considered the definition of the word “use,” id. at 2278-80, and the

legislative history of § 922(g)(9), id. at 2280-82. However, the Supreme Court expressly left open

the question of whether the reckless use of force would be sufficient to meet the requirements of a

“crime of violence” under 18 U.S.C. § 16(a). Id. at 2279-80. In a footnote, the Supreme Court

referenced § 922(g)(9) and § 16(a), noting “[c]ourts have sometimes given those two statutory

definitions divergent readings in light of the differences in their context and purposes, and we do

not foreclose the possibility with respect to their required mental states.” Id. at 2280 n.4. With

respect to its 2004 decision described above, the Court noted “[a]ll we say here is that . . . [the]

exclusion of accidental conduct [in the earlier decision] from a definition hinging on the ‘use’ of

force is in no way inconsistent with our inclusion of reckless conduct in a similarly worded

provision.” Id. As such, the issue remains open as to whether a reckless application of force is

sufficient to meet the requirements of the elements clause of the ACCA. The Government urges

the Court to apply the Supreme Court’s ruling regarding § 922(g)(9) to the instant issue and Mr.

Taylor seeks to distinguish this holding.

        Two district court judges in this jurisdiction have sided with Mr. Taylor’s argument that a

statute requiring only the reckless application of force does not meet the requirements of the



                                                 27
ACCA’s elements clause. Indeed, District Judge James E. Boasberg recently accepted this

argument at a sentencing hearing and held that D.C. ADW does not constitute a violent felony

under the elements clause of the ACCA because it covers reckless conduct. 10 U.S. v. Haight, Case

No. 1:15-cr-00088 (D.D.C.), Sent’g Hrg. Tr. (Dec. 1, 2016), at 3-8, ECF No. [106]. Further,

District Judge Emmet G. Sullivan recently addressed the North Carolina crime of assault with a

deadly weapon with intent to kill and reached a similar conclusion. Brown, No. CR 09-358 (EGS),

2017 WL 1383640, at *7-*9. Judge Sullivan noted that the majority of courts to reach this issue

have found a conviction that only requires a mens rea of recklessness does not satisfy the elements

clause of the ACCA. See id. at *7 (citing Bennett v. United States, Nos. 94–11, 16–251, 2016 WL

3676145, at *3 (D. Me. July 6, 2016) (collecting cases)). While the state statute at issue in that

case is distinguishable in that it merely required culpable or criminal negligence, rather than

recklessness, Judge Sullivan’s analysis remains persuasive. Id. at *9.

       Specifically, as noted by Judge Sullivan, the Supreme Court previously defined “force” as

used in the ACCA and in § 922(g)(9) in different manners. Id. at *8. In Johnson (2010), with

respect to violent felonies, the Supreme Court held that the violent application of force was

required to satisfy the elements clause of the ACCA. Johnson (2010), 559 U.S. at 140. However,

with respect to misdemeanor crimes of domestic violence, the Supreme Court, applying the

common law definition, held that a mere offensive touching was sufficient to satisfy the force

requirement of § 922(g).    Castleman, 134 S. Ct. at 1410. The Supreme Court explained this

distinction by noting that: (1) perpetrators of domestic violence are routinely prosecuted under

assault or battery laws; (2) “domestic violence” is a term of art that encompasses acts that may not




       10
          The Government’s appeal of this sentence currently is being briefed before the D.C.
Circuit. U.S. v. Haight, Case No. 17-3002 (D.C. Cir.) (filed Jan. 23, 2017).
                                                28
be considered violent in a nondomestic context; (3) section 922(g) sets forth several different

criteria that preclude a person from gun ownership, only one of which deals with prior convictions

for domestic violence offenses; and (4) to exclude misdemeanors that include mere offensive

touching from the definition of force in § 922(g) would render the provision inoperative in many

states. Id. at 1410-13. Here, the rationale provided for distinguishing the level of force required

to satisfy similarly worded statutes appears to support the conclusion that a higher level of mens

rea is required to violate the ACCA when the purpose of the ACCA is to determine whether certain

defendants should be classified as armed career criminals based on their prior felony convictions

and subjected to a 15-year mandatory minimum. Indeed, Judge Sullivan found the mere “linguistic

similarity” between § 922(g) and the elements clause of the ACCA does not necessarily mean that

reckless conduct is sufficient to satisfy the latter. Brown, No. CR 09-358 (EGS), 2017 WL

1383640, at *8. Rather, Judge Sullivan was persuaded that “[t]he primary reason for the difference

between the holdings . . . 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.’” Id. (quoting United

States v. Sabetta, No. 00-CR-135-S-PAS, 2016 WL 6157454, at *9 (D.R.I. Oct. 24, 2016),

reconsideration denied, No. 00-CR-135-S-PAS, 2016 WL 7174618 (D.R.I. Dec. 8, 2016)). “Thus,

‘the lower mens rea sufficient for a predicate misdemeanor is not necessarily sufficient for a

violent felony.’” Id. (quoting Sabetta, No. 00-CR-135-S-PAS, 2016 WL 6157454, at *9). The

Court is persuaded by this line of reasoning.

       The Court agrees that a state statute that requires the mere reckless application of force,

such as D.C. ADW, does not meet the requirements of the elements clause of the ACCA. The

Court notes that in reaching this conclusion, it reaches a contrary holding to some other courts



                                                29
addressing this issue. See, e.g., United States v. Howell, 838 F.3d 489, 501-02 (5th Cir. 2016),

cert. denied 137 S. Ct. 1108 (2017) (holding that the mental state of recklessness is sufficient for

an offense to qualify as a crime of violence under U.S.S.G. § 4B1.2(a)(1)); United States v. Fogg,

836 F.3d 951, 956 (8th Cir. 2016), cert. denied No. 16-7767, 2017 WL 468441 (U.S. May 15,

2017) (finding that reckless conduct constitutes the use of force under the ACCA). For the reasons

described, the Court has determined that Mr. Taylor has only two, not three, qualifying convictions

and, as such, is entitled to be resentenced because he was improperly subjected to a 15-year

mandatory minimum sentence pursuant to § 924(e).



                                       IV. CONCLUSION

       For the foregoing reasons, the Court finds that Mr. Taylor is entitled to have his sentence

corrected. Specifically, the Court finds that Mr. Taylor’s prior conviction for the D.C. offense of

ADW does not qualify as a violent felony under the ACCA and, as such, Mr. Taylor should not

have been subject to the 15-year mandatory minimum in light of the Supreme Court’s holding in

Johnson (2015). The Court further finds that Mr. Taylor’s prior conviction for Maryland AWIR

does qualify as a violent felony under the ACCA. The Court shall reserve ruling on Mr. Taylor’s

arguments related to the U.S.S.G. until resentencing. Accordingly, Mr. Taylor’s [23] Motion

Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, and Mr. Taylor’s [26]

Supplemental Motion to Vacate Judgment Under 28 U.S.C. § 2255 are GRANTED.

       An appropriate Order accompanies this Memorandum Opinion.



                                                         ______/s/____________________
                                                     COLLEEN KOLLAR-KOTELLY
                                                     UNITED STATES DISTRICT JUDGE



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