                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
UNITED STATES OF AMERICA,      )
                               )
     v.                        ) Criminal Action No. 09-358 (EGS)
                               ) Civil Action No. 16-1186 (EGS)
KEDRICK BROWN,                 )
                               )
          Defendant.           )
                               )

                       MEMORANDUM 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

                                1
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

Investigation Report (“PSR”), ECF No. 22 ¶¶ 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


                                2
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


                                3
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


                                 4
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). If 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


                                5
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 “Johnson (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


                                   6
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


                                7
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,


                                8
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


                                9
clause would have picked up wherever the [e]lements clause left

off.” Id. In 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

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.


                               10
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


                               11
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

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 .


                               13
. . such a conviction cannot qualify as a violent felony under

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: “(1) 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

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 35-37.1

     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.
                                16
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

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). It 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. In 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.2d 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


                               18
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 AWDWIK——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. In 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.2d 546, 547 (N.C. Ct. App. 1981)). Thus,

under the categorical approach, North Carolina AWDWIK——unlike




                               21
Maryland armed robbery——does not require “violent force” and,

accordingly, does not qualify as an ACCA “violent felony.”

     In 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. In 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. Indeed, “most decisions to address

the question have found that a conviction that requires a mens


                               22
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.I. 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


                               24
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




                               25
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.

In 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. It 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 Voisine, 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.
                                26
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. In 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


                               28
Supreme Court in Jones did not “qualif[y] its earlier statement

in dicta.” See Goins, 2017 WL 455400, at *4. Instead, 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.


                               29
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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