                                    PUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 16-4226


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

DAVID PATRICK DIAZ,

                   Defendant - Appellant.


Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony J. Trenga, District Judge. (1:15-cr-00324-AJT-1)


Argued: March 24, 2017                                        Decided: July 26, 2017
                               Amended: July 31, 2017


Before FLOYD and HARRIS, Circuit Judges, and John Preston BAILEY, United States
District Judge for the Northern District of West Virginia, sitting by designation.


Vacated and remanded by published opinion. Judge Floyd wrote the opinion, in which
Judge Harris and Judge Bailey joined.


ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Jon Tyler McGaughey, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C.
Kamens, Federal Public Defender, Brooke S. Rupert, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
FLOYD, Circuit Judge:

       Appellant David Diaz rushed the cockpit of a flight approximately 45 seconds

after takeoff from Washington Dulles International Airport. After pleading guilty in an

open plea to violating 49 U.S.C. § 46504, interference with flight crew members and

attendants, the district court was tasked with deciding whether to impose restitution, and,

if imposed, how much restitution would be appropriate. The government argued that this

offense fell within the scope of the Mandatory Victims Restitution Act (MVRA), 18

U.S.C. § 3663A, such that Diaz was required to pay the full amount of restitution

calculated in his presentence report. Diaz argued instead that his crime was covered by

the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663, and thus the district

court retained discretion in deciding whether to impose restitution and the amount of

restitution it would require Diaz to pay. The district court agreed with the government,

found that the MVRA applied, and ordered Diaz to pay the full amount of restitution.

Diaz appealed, and we now vacate the order of restitution, finding that the VWPA applies

because interference with a flight crew is not categorically a crime of violence as defined

by 18 U.S.C. § 16.


                                            I.

                                            A.

       In early 2015, David Diaz was living in Northern Virginia with his father and

suffering from a declining mental state. Deciding that it would be best to send Diaz to

live with his mother in Texas, Diaz’s father bought him a plane ticket to depart on March


                                            2
15, 2015, from Washington Reagan National Airport. Diaz felt extreme anxiety and

paranoia about flying, and would self-medicate with alcohol. Diaz boarded the flight, but

was too nervous to stay in his seat and remain on the plane, and so he voluntarily

deplaned. Diaz tried again to fly on the morning of March 16, 2015, from Reagan

National Airport, but again was too nervous and again voluntarily deplaned after

boarding.

       Determined to reach his mother in Texas who was expecting him, Diaz boarded a

third flight on March 16, 2015, operated by United Airlines, departing from Washington

Dulles International Airport bound for Denver, Colorado. At the time he boarded the

flight, Diaz was intoxicated. Approximately 45 seconds after takeoff, Diaz left his seat

and rushed toward the cockpit. According to witnesses, he yelled that the plane was

going too slowly, was going down, and was shooting flames. Diaz also reportedly

shouted about jihad, a bomb, and that there was “something in the belly of the plane.”

J.A. 28–29. Other passengers tackled Diaz and attempted to restrain him, but he resisted.

The pilots returned the flight to Dulles approximately thirteen minutes after takeoff.

Feeling too upset to continue working, the flight attendants would not re-board the plane.

As a result, the flight was canceled and passengers were re-booked onto other flights.

Diaz has no independent recollection of the incident due to his intoxication, but does not

dispute the statements or their effect on passengers and crew.

       A grand jury in the Eastern District of Virginia indicted Diaz on one count of

interference with flight crew members and attendants, in violation of 49 U.S.C. § 46504.

Diaz then pleaded guilty to the offense without having a plea agreement in place.

                                            3
                                              B.

       Before discussing the proceedings below imposing restitution, a brief discussion

of the restitution scheme in criminal offenses is necessary to understand the issues in this

appeal. Two different statutes are relevant here: 18 U.S.C. § 3663, which we refer to as

the Victim and Witness Protection Act (VWPA), and 18 U.S.C. § 3663A, which we refer

to as the Mandatory Victims Restitution Act (MVRA).

       Under the VWPA, restitution is discretionary. 18 U.S.C. § 3663(a)(1)(A). The

VWPA requires that the court consider “the financial resources of the defendant, the

financial needs and earning ability of the defendant and the defendant’s dependents, and

such other factors as the court deems appropriate” in determining whether to order

restitution.   Id. § 3663(a)(1)(B)(i)(II).   The VWPA states that it will apply “when

sentencing a defendant convicted of an offense under . . . section . . . 46504 of title 49”

unless the offense is “an offense described in section 3663A(c).” Id. § 3663(a)(1)(A).

       In contrast, the MVRA requires—as its name implies—mandatory restitution. Id.

§ 3663A(a)(1). As relevant to this appeal, the MVRA applies for any offense “(A) that is

(i) a crime of violence, as defined in section 16 [of title 18] . . . and (B) in which an

identifiable victim or victims has suffered a physical injury or pecuniary loss.” Id.

§ 3663A(c)(1) (emphasis added).


                                              C.

       U.S. Probation Services determined in Diaz’s presentence report (PSR) that United

Airlines suffered a loss of $22,151.77 as a result of Diaz’s criminal conduct, and


                                              4
recommended an order of restitution in that amount. The PSR also noted that Diaz’s

financial condition made him unable to pay a fine or costs. See Appellant’s Br. at 5.

However, the PSR did not indicate the statutory basis for restitution.

       The government in its sentencing position paper did not mention restitution, only

requesting that Diaz receive a guidelines range sentence. Diaz submitted that the offense

fell within the scope of the VWPA. As such, Diaz argued restitution was not mandatory,

and requested the court consider his financial situation under the VWPA.        He also

“suggested that a restitution amount of $10,869 was more appropriate in light of United’s

direct costs and Mr. Diaz’s financial condition” if the court determined to order

restitution. Appellant’s Br. at 5.

       At the sentencing hearing, for the first time, the government argued that the

MVRA applied instead of the VWPA. The government first argued that flight crew

interference in violation of 49 U.S.C. § 46504 was a crime of violence under 18 U.S.C.

§ 3663A(c)(1)(A)(i). However, the government then argued: “But it doesn’t even matter

because Your Honor doesn’t even have to find that because under 3663A(c)(1)(B), the

Mandatory Victims Restitution Act applies to any offense in which an identifiable victim

has suffered pecuniary loss.” J.A. 53.

       The court agreed with the government’s argument and held, “it appears to the

Court that restitution is mandatory in this case under 3663A(c)(1)(B), which requires

restitution whenever there’s an identifiable victim that suffered a pecuniary loss.” J.A.

56–57. The court never ruled on the issue of whether flight crew interference was a



                                             5
crime of violence as defined by 18 U.S.C. § 16. As a result, the court ordered Diaz to pay

the full amount of $22,151.77 as restitution as part of Diaz’s sentence.

       Diaz timely noted this appeal, and appeals only the restitution order. We have

jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291.


                                            II.

       We review restitution ordered generally for abuse of discretion, but “assess de

novo any legal questions raised with respect to restitution issues, including matters of

statutory interpretation.” United States v. Ocasio, 750 F.3d 399, 412 (4th Cir. 2014)

(citations omitted).


                                            III.

                                            A.

       Diaz raises a threshold question that we must answer before reaching further

questions in this appeal: whether it is possible for a crime presumptively covered by the

VWPA to instead fall within the scope of the MVRA. This is a straightforward question

of statutory interpretation with a clear answer—yes.

       Diaz’s sole argument is that Congress placed flight crew interference within the

VWPA when it was first enacted, and did not indicate that flight crew interference should

fall under the MVRA when passing the legislation later creating the MVRA. He submits

that “[t]his deliberate placement of § 46504 into the VWPA and not the MVRA is the

best indication that Congress intended the VWPA to apply to convictions under

§ 46504.” Appellant’s Br. at 12. However, this argument flies in the face of the actual

                                             6
statutory language. Diaz is correct that flight crew interference is an enumerated offense

to which the VWPA presumptively applies; however, the VWPA also clearly provides

that if the offense is covered by 18 U.S.C. § 3663A(c), then the MVRA will apply. See

18 U.S.C. § 3663(a)(1)(A). 1

       Thus, it is clear that the MVRA may apply in determining restitution for a

defendant who interferes with a flight crew in violation of 49 U.S.C. § 46504, but only if

it is determined that flight crew interference falls within the scope of 18 U.S.C.

§ 3663A(c).


                                             B.

       Accordingly, the next issue is how to interpret 18 U.S.C. § 3663A(c).          The

question presented to us is whether this section of the MVRA, specifically § 3663A(c)(1),

is disjunctive or conjunctive.     Again, this is a straightforward question of statutory

interpretation with a clear answer—conjunctive.       The district court below erred in

interpreting the statute as disjunctive.

       The MVRA in § 3663A(c)(1) makes clear that for an offense to fall within the

MVRA, the offense must satisfy § 3663A(c)(1)(A) and also satisfy the requirement of

§ 3663A(c)(1)(B) by using the word “and” to connect the provisions of § 3663A(c)(1)(A)

and (B).    We have never addressed this specific issue; however, a decade before

       1
         The Seventh Circuit has also noted this in passing. See United States v. Frith,
461 F.3d 914, 919 (7th Cir. 2006) (noting that the VWPA “cover[s] restitution . . . for
offenses under . . . 49 U.S.C. §§ 46312, 46502 & 46504 except when the MVRA
applies”).


                                             7
sentencing in this case, one of our sister circuits squarely rejected the argument accepted

by the district court:

          Notwithstanding the word “and,” the government invites us to read
          subsections (A) and (B) in the disjunctive; under the government’s theory,
          restitution applies if the defendant committed an offense enumerated under
          (A) or if “an identifiable victim or victims has suffered a physical injury or
          pecuniary loss” under (B). The government’s interpretation does violence
          to the statutory text. Under the plain terms of section 3663A, restitution is
          available only if the defendant meets both (A) and (B).

United States v. Dorcely, 454 F.3d 366, 376 n.7 (D.C. Cir. 2006) (citations omitted)

(emphases in original). The conclusion of the D.C. Circuit is sound, and we adopt it in

full. 2


                                               C.

          Finally, we reach the heart of the appeal, which requires us to determine whether

the MVRA or the VWPA applies to Diaz. We conclude that flight crew interference in

violation of 49 U.S.C. § 46504 is not a crime of violence, and thus cannot satisfy 18

U.S.C. § 3663A(c)(1)(A). Accordingly, the VWPA must apply here.



          2
          The parties dispute whether Diaz preserved this claim and therefore whether we
should review this issue of statutory interpretation de novo or under the plain error
standard. Because we would vacate under either standard, we need not decide whether
Diaz preserved this issue. We do note, however, that it was the government that
propounded this incorrect legal theory to the court below, raising it for the first time at
oral argument before the district court. It seems somewhat disingenuous for the
government to now argue that Diaz should have realized the government’s error in
misinterpreting the plain conjunctive meaning of the word “and” within § 3663A(c)(1).
We are reminded that “while [the prosecutor] may strike hard blows, he is not at liberty
to strike foul ones.” Berger v. United States, 295 U.S. 78, 88 (1935).


                                                8
      As just explained, an offense must satisfy both 18 U.S.C. § 3663A(c)(1)(A) and

(B) in order for the MVRA to apply. The district court found § 3663A(c)(1)(B) satisfied,

but made no ruling as to § 3663A(c)(1)(A). Diaz has not challenged the finding with

respect to § 3663A(c)(1)(B), but submits that as a matter of law, flight crew interference

cannot satisfy § 3663A(c)(1)(A).

      An offense may satisfy § 3663A(c)(1)(A) in four different ways. As relevant here,

§ 3663A(c)(1)(A) is met when the offense of conviction is “a crime of violence as

defined in [18 U.S.C.] section 16.” 18 U.S.C. § 3663A(c)(1)(A)(i). 3 Section 16 then

defines a “crime of violence” as:     “(a) an offense that has as an element the use,

attempted use, or threatened use of physical force against the person or property of

another, or (b) any other offense that is a felony and that, by its nature, involves a

substantial risk that physical force against the person or property of another may be used

in the course of committing the offense.” 18 U.S.C. § 16. Section 16(a) is known as the

“force clause,” and § 16(b) is known as the “residual clause.”

      In determining whether a crime constitutes a crime of violence, we employ the

categorical approach, “‘look[ing] only to the statutory definitions’—i.e., the elements—

of a defendant’s [crime] and not ‘to the particular facts underlying [that crime].”

Descamps v. United States, 133 S. Ct. 2276, 2283 (2013) (quoting Taylor v. United

States, 495 U.S. 575, 600 (1990)). However, “in cases involving statutes that set out


      3
       The parties do not contend that any of the other options under 18 U.S.C.
§ 3663A(c)(1)(A)(ii)–(iv) could be applicable.


                                            9
elements in the alternative and thus create multiple versions of the crime,” we consider

the statute divisible and apply the modified categorical approach.          United States v.

Montes-Flores, 736 F.3d 357, 365 (4th Cir. 2013) (internal quotation marks omitted). An

indivisible statute, on the other hand, “does not set out elements of the offense in the

alternative, but . . . may nevertheless broadly criminalize qualitatively different categories

of conduct.” United States v. Royal, 731 F.3d 333, 340 (4th Cir. 2013).


                                              1.

       First, we must determine if the statute is divisible in order to decide whether we

use the strict categorical approach or the modified categorical approach. The statute in

question provides:

       An individual on an aircraft in the special aircraft jurisdiction of the United
       States who, by assaulting or intimidating a flight crew member or flight
       attendant of the aircraft, interferes with the performance of the duties of the
       member or attendant or lessens the ability of the member or attendant to
       perform those duties, or attempts or conspires to do such an act, shall be
       fined under title 18, imprisoned for not more than 20 years, or both.

49 U.S.C. § 46504 (emphasis added). The dispute between Diaz and the government is

whether the phrase “assaulting or intimidating” creates different elements or different

means. For the reasons that follow, the statute creates different means, making the statute

indivisible and the modified categorical approach inapplicable.

       “[U]se of the word ‘or’ in the definition of a crime does not automatically render

the crime divisible.” Omargharib v. Holder, 775 F.3d 192, 198 (4th Cir. 2014) (citing

Royal, 731 F.3d at 341–42). Rather, “a crime is divisible under Descamps only if it is

defined to include multiple alternative elements (thus creating multiple versions of a

                                             10
crime), as opposed to multiple alternative means (of committing the same crime).” Id.

(citations omitted). “Alternative elements of a crime, as opposed to alternative means of

committing a crime, are ‘factual circumstances of the offense that the jury must find

unanimously and beyond a reasonable doubt.’” United States v. Gardner, 823 F.3d 793,

802 (4th Cir. 2016) (quoting Omargharib, 775 F.3d at 198).               “Therefore, when

determining the divisibility of a crime, we may consider how ‘courts generally instruct

juries with respect to that offense.’” Id. (quoting Royal, 731 F.3d at 341).

       Looking to model jury instructions, we have found three sources that include the

offense of flight crew interference in violation of 49 U.S.C. § 46504: (1) a national

treatise; (2) model instructions from a district court; and (3) model instructions from a

circuit court. First, the treatise Modern Federal Jury Instructions—Criminal sets out the

elements the government must prove as:

       First, that at the time alleged in the Indictment, defendant was on an aircraft
       in the special aircraft jurisdiction of the United States;

       Second, that defendant knowingly assaulted or intimidated a flight crew
       member or flight attendant of the aircraft; and

       Third, that such assault or intimidation interfered with the performance of
       the flight crew member or flight attendant or lessened the ability of the
       crew member or attendant to perform his or her normal duties.

1-13 Modern Federal Jury Instructions—Criminal, ¶ 13.02, Instruction 13-9 (Matthew

Bender) [hereinafter Modern Instructions].

       The District of South Carolina also provides a model jury instruction that includes

“assaulted or intimidated” in the second element. Eric Wm. Ruschky, Pattern Jury

Instructions for Federal Criminal Cases, District of South Carolina 600 (Emily Deck

                                             11
Harrill, ed., 2015 online ed.) [hereinafter D.S.C. Instructions], available at

http://www.scd.uscourts.gov/pji.

       Finally, only one circuit court offers a model instruction on this offense—the

Eleventh Circuit. The model instructions indicate that the jury should be charged that

“the Defendant knowingly [assaulted] [intimidated] a flight crew member or flight

attendant of the aircraft.” Comm. on Pattern Jury Instructions of the Jud. Council of the

Eleventh Circuit, Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Instruction

118    (2010      ed.)    [hereinafter    11th      Circuit   Instructions],    available     at

http://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/FormCriminalPatternJury

Instruction.pdf (brackets indicate options, not alterations). Thus, the models are in minor

tension, with the treatise and D.S.C. Instructions indicating that both assault and

intimidation should be charged, and the 11th Circuit Instructions appearing to indicate

only one or the other should be charged.

       Turning to case law interpreting the statute, in an unpublished opinion, we have

held that “to sustain a conviction under [49 U.S.C. § 46504], the government must prove

that [the defendant]: (1) interfered with, or lessened the ability of the . . . flight attendants

to perform their respective duties on the . . . flight by; (2) assaulting or intimidating

them.” United States v. Gilady, 62 F. App’x 481, 483 (4th Cir. 2003) (per curiam)

(emphasis added). 4 The Ninth Circuit has also utilized this formulation of the elements


       4
       The defendant’s argument related to restitution in Gilady was abandoned at oral
argument. 62 F. App’x at 482 n.*.


                                               12
of the offense in a published opinion. See United States v. Naghani, 361 F.3d 1255, 1262

(9th Cir. 2004) (“The elements of the offense of intimidation in violation of § 46504 are:

the defendant (1) was on an aircraft in the special aircraft jurisdiction of the United

States; (2) assaulted or intimidated a flight attendant or flight crew member; and (3) in

doing so, interfered with the performance of the duties . . . .” (emphasis added)).

Additionally, in another unpublished case, we have cited favorably to the Ninth Circuit’s

recitation of the elements of flight crew interference. See United States v. Persing, 318 F.

App’x 152, 154 (4th Cir. 2008) (per curiam) (citing Naghani, 361 F.3d at 1262). Thus,

the case law dealing with the statute weighs in favor of treating the statute as indivisible,

and treating “assault or intimidation” as different means and not different elements.

       The government argues that under Mathis v. United States, 136 S. Ct. 2243, 2256–

57 (2016), we should “peek at the record” to determine whether the statute is divisible.

However, the Supreme Court only recommends this in the absence of “clear answers”

from case law and other sources. Id. at 2256. The case law, national treatise, and D.S.C.

Instructions create sufficient consensus for us to find the “clear answer” is that assault

and intimidation are different means of accomplishing the same element of the offense,

such that we should not “peek at the record” under Mathis.

       Finally, the government argues that it often does not charge both assault and

intimidation, only opting for one or the other, providing further proof that these are

elements and not means. The government also argues that in other cases, district courts

have instructed juries that they must unanimously find which of the two acts a defendant

has committed—intimidation or assault—when the government charges both. This, the

                                             13
government submits, is proof that intimidation or assault are different elements rather

than different means, otherwise the district courts would not instruct the jury to find one

or the other unanimously.

       While somewhat persuasive, we do not think the government’s choices in how it

charges the offense of flight crew interference should dictate our legal interpretation of

the statute. Further, without more context as to how the district courts have determined

to give a unanimity charge, we do not find those instructions helpful. Indeed, in direct

contrast to the government’s cited district court instructions, the Ninth Circuit has noted

with approval a district court charging a jury that “the government must prove that the

defendant knowingly and intentionally performed an act of assault, threat, or

intimidation.” United States v. Tabacca, 924 F.2d 906, 911 n.6 (9th Cir. 1991) (emphasis

added). 5 We instead find that the plain textual meaning of the statute, the case law, and

the secondary sources counsel finding the statute to be indivisible.

       Additionally, recent precedent from this Court addressing the divisibility of

Virginia common law robbery supports a finding of indivisibility here. In United States

v. Winston, 850 F.3d 677 (4th Cir. 2017), we concluded that Virginia common law

robbery, which proscribes “taking, with intent to steal, of the personal property of

       5
         At the time of the Tabacca decision, the aircrew interference offense was
codified at 49 U.S.C. § 1472(j) (1988) and proscribed interference by one who “assaults,
intimidates, or threatens.” The “threatens” language was removed from the statute in
1994 when the offense was re-codified at 49 U.S.C. § 46504. See Act of July 5, 1994,
Pub. L. No. 103-272, § 1(e), 108 Stat. 745, 1244. The official U.S. Code published that
year explains, “[t]he words ‘or threatens’ are omitted as being included in ‘intimidating’.”
49 U.S.C. § 46504 note (1994) (historical and revision notes).


                                            14
another, from his person or his presence, against his will, by violence or intimidation,”

was indivisible. Winston, 850 F.3d at 683–84 (quoting Pierce v. Commonwealth, 138

S.E.2d 28, 31 (Va. 1964)) (emphasis added). We fail to see how the statute at issue here

is any different from the formulation of common law robbery in Virginia.

       Therefore, we find flight crew interference in violation of 49 U.S.C. § 46504 to be

an indivisible offense for the purposes of the categorical approach.


                                            2.

       Having found the offense indivisible, we now evaluate whether it is a crime of

violence under 18 U.S.C. § 16. The government at sentencing argued only that flight

crew interference satisfied the force clause, and made no argument under the residual

clause. However, the government now argues that we can look to the residual clause and

affirm the district court on alternative grounds.     As explained below, we reject the

government’s position under the force clause, and find that the government has waived

the residual clause argument. We therefore find that the flight crew interference in

violation of 49 U.S.C. § 46504 is not a crime of violence as defined by the force clause of

18 U.S.C. § 16(a).


                                             a.

       In order for a crime to qualify as a crime of violence under the force clause, it

must require “the use, attempted use, or threatened use of physical force against the

person or property of another.” 18 U.S.C. § 16(a). The “physical force” contemplated by

18 U.S.C. § 16(a) has been defined by the Supreme Court to mean “violent force—that is,

                                            15
force capable of causing physical pain or injury to another person.” Johnson v. United

States (Johnson I), 559 U.S. 133, 140 (2010). In making the determination of whether

the offense meets the requirements of the force clause, “we focus on ‘the minimum

conduct necessary for a violation.’” Gardner, 823 F.3d at 803 (quoting Castillo v.

Holder, 776 F.3d 262, 267 (4th Cir. 2015)). “Such minimum culpable conduct includes

any conduct to which there is a ‘realistic probability, not a theoretical possibility’”

against which the law would be enforced. Id. (quoting Moncrieffe v. Holder, 133 S. Ct.

1678, 1684–85 (2013)).

       Having found flight crew interference to be indivisible, we can resolve this case by

analyzing only the “assault” means of the offense. 6 “Assault” as used in the flight crew

interference offense does not meet the requirement of Johnson I that it be accomplished

with violent force. Although the government argues that the “assault” contemplated by

§ 46504 “was only intended to criminalize serious assaults,” Appellee’s Br. at 35 n.5, this

argument is without merit. There is no evidence from the statute itself or the legislative

history that § 46504 is intended only for “serious assaults” as opposed to other ones.

       Turning again to the three jury instruction sources, the two court-offered model

jury instructions are in agreement that an “assault” for the purposes of § 46504 need not

be by violent force, but only needs to be a forcible touching.           See 11th Circuit

Instructions, Instruction 118; D.S.C. Instructions, 601. The national treatise does indicate


       6
         We thus do not address whether “intimidation” as used in the statute would
involve the use, attempted use, or threatened use of physical force.


                                            16
that an assault under § 46504 is an act “with force and violence,” Modern Instructions,

Instruction 13-11, but also notes that “[t]he definition of assault is in general use, and is

similar to the charge used in cases involving assaults on federal officers,” id. at

Instruction 13-11 cmt. Looking at the statute prohibiting assaults on federal officers, that

statute authorizes conviction of anyone who “forcibly assaults, resists, opposes, impedes,

intimidates, or interferes with [any federal official] while engaged in or on account of the

performance of official duties.” 18 U.S.C. § 111(a)(1) (emphasis added). Multiple courts

after Johnson I have found that even this offense—which uses the word “forcibly”—is

categorically not a crime of violence because “the government need not prove, and an

adjudicator need not find, that the offense involved violent force capable of causing

physical pain or injury.” United States v. Dominguez-Maroyoqui, 748 F.3d 918, 921 (9th

Cir. 2014) (emphasis added); see also United States v. Taylor, 848 F.3d 476, 494 (1st Cir.

2017) (“It is possible to commit simple assault under § 111(a) without using violent

force.”), cert. denied, No. 16-9137, 2017 WL 2119452 (mem.) (U.S. June 12, 2017);

United States v. Hernandez-Hernandez, 817 F.3d 207, 213 (5th Cir. 2016) (explaining

that § 111(a) can be violated without any physical contact or contact that “does not

require a showing of bodily injury or use of a deadly weapon”); cf. United States v.

Hopkins, 310 F.3d 145, 152 (4th Cir. 2002) (discussing an argument that conviction

under 18 U.S.C. § 111(a) would not support a conviction for using a firearm in

connection with a crime of violence and appearing to accept that premise, but rejecting

the argument for other reasons).



                                             17
      Thus, it is clear that “assault” need only be a forcible touching, and there is no

evidence that it needs to rise to the level of violent force as defined in Johnson I.

Because flight crew interference in violation of 49 U.S.C. § 46504 criminalizes forcible

touching, it cannot categorically be a crime of violence under the force clause of 18

U.S.C. § 16(a). As such, we conclude that the MVRA is inapplicable here, and that any

restitution order should have been considered discretionary under the VWPA.


                                            b.

      Nonetheless, the government urges us to rely on the residual clause of 18 U.S.C.

§ 16(b), even though it did not make this argument to the district court. We decline to do

so.

      Assuming without deciding that the residual clause is not unconstitutionally

vague, 7 the government has waived its right to rely on that clause. The government, as

conceded, did not rely on the residual clause below and put forth no evidence or

argument on the point. Further, the government dedicated precisely three-quarters of a

page in its brief on this argument, with the essential argument contained in one sentence:

“[A]ssaulting or intimidating a flight crew member or attendant during the course of a

      7
          We note that the majority of circuits to address this question have found 18
U.S.C. § 16(b) unconstitutional in light of Johnson v. United States (Johnson II), 135 S.
Ct. 2551 (2015). See Baptiste v. Att’y Gen., 841 F.3d 601 (3d Cir. 2016); Shuti v. Lynch,
828 F.3d 440 (6th Cir. 2016); United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015);
Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert. granted, 137 S. Ct. 31 (Sept. 29,
2016) (No. 15-1498). But see United States v. Gonzalez-Longoria, 831 F.3d 670, 674–79
(5th Cir. 2016) (en banc) (finding 18 U.S.C. § 16(b) constitutional). We need not weigh
into this debate in this case.


                                           18
flight, thereby interfering with the performance of their duties, is an offense that always

entails a ‘substantial risk’ that physical force will be used.” Appellee’s Br. at 36. 8

       As correctly noted by Diaz, the government entirely fails to “conduct[] any sort of

‘substantial risk’ analysis” in this meager submission. See Appellant’s Reply Br. at 15.

We find this insufficient for the government to present the issue to us, and accordingly

find the government has waived reliance on the residual clause.

                                             ***

       In sum, we find flight crew interference in violation of 49 U.S.C. § 46504 is not a

crime of violence under 18 U.S.C. § 16(a), the force clause, and as such, the MVRA

should not have been applied to the government’s request for restitution in this case.

Rather, the appropriate statute to be applied here was the VWPA.


                                              D.

       The district court viewed restitution as mandatory under the MVRA, and as such it

never endeavored to consider Diaz’s ability to pay restitution as required by the VWPA.

18 U.S.C. § 3663(a)(1)(B)(i)(II). Therefore, the proper remedy is for us to vacate the

restitution order and remand this matter. See United States v. Leftwich, 628 F.3d 665,

668 (4th Cir. 2010) (explaining that under the VWPA “a necessary condition precedent to

an order of restitution under [the VWPA]” is that the court make findings about the


       8
       The government was not short on space in this brief; the entire brief was 9,078
words out of a possible 14,000 words. See Appellee’s Br. at 38 (certificate of
compliance).


                                              19
defendant’s ability to pay); accord United States v. Doering, 759 F.3d 862, 867 (8th Cir.

2014) (vacating restitution and remanding for further proceedings where the court

incorrectly used the MVRA rather than the VWPA to determine restitution).

       However, before disposing of this appeal, one final issue presents itself to us in

connection with this remedy. In addition to challenging the applicability of the MVRA,

Diaz also argued below that if he must pay restitution, he should only be ordered to pay

$10,869.00 rather than $22,151.77 to United Airlines based on both “United’s direct costs

and Mr. Diaz’s financial condition.” Appellant’s Br. at 5. However, an award of partial

restitution on the basis of Diaz’s financial condition is not permitted under the VWPA.

Although we have made this point clear for crimes that fall under the MVRA, see United

States v. Alalade, 204 F.3d 536, 540–41 (4th Cir. 2000), the language of our prior cases is

somewhat unclear as to crimes that fall under the VWPA, necessitating clarification here.

       The VWPA provides that 18 U.S.C. § 3664 governs how orders of restitution are

issued and enforced. 18 U.S.C. § 3663(d). As we explained in Alalade, § 3664 was

amended at the time the MVRA was enacted to “completely delete[] the language of the

VWPA affording the district court discretion . . . to consider any factor it deemed

appropriate in determining the amount of restitution to be ordered, and replaced it with

language requiring the district court to order restitution in the full amount of loss to each

victim as determined by the district court.” 204 F.3d at 540 (citations omitted); compare

18 U.S.C. § 3664(a) (1994) (providing that “in determining whether to order restitution

under section 3663 of this title and the amount of such restitution,” the court “shall

consider . . . the financial resources of the defendant”) with 18 U.S.C. § 3664(f)(1)(A)

                                             20
(Supp. II 1997) (requiring that “the court shall order restitution to each victim in the full

amount of each victim’s losses as determined by the court and without consideration of

the economic circumstances of the defendant”). 9 Accordingly, we have held that a

district court lacks discretion to reduce the amount of restitution to anything “less than

the full amount of each [victim]’s loss.” Alalade, 204 F.3d at 540–41. This appropriately

applies the restitution scheme as enacted by Congress. Accord United States v. Sizemore,

850 F.3d 821, 827 (6th Cir. 2017) (“Courts consider the financial circumstances of the

defendant in deciding whether to order restitution and in setting the defendant’s payment

schedule, but not in setting the total amount of restitution due to the victims.” (emphases

added)).

        Accordingly, on remand, should the district court determine that restitution is

proper, the district court must order the full amount of loss as determined by the district

court. 10


        9
          In several of our cases, we have referred to 18 U.S.C. § 3664 as part of the
MVRA. See, e.g., Leftwich, 628 F.3d at 668; United States v. Roper, 462 F.3d 336, 338–
39 (4th Cir. 2006), Alalade, 204 F.3d at 540–41. This is accurate in the sense that the
same legislation which created the MVRA as codified in 18 U.S.C. § 3663A completely
changed the language of 18 U.S.C. § 3664. See Mandatory Victims Restitution Act of
1996, Pub. L. No. 104-132, tit. II, subtit. A, § 206(a), 110 Stat. 1227, 1232–36. However,
as explained, the VWPA as codified in 18 U.S.C. § 3663 incorporates 18 U.S.C. § 3664
for the procedures in issuing an enforcing restitution orders. Thus, 18 U.S.C. § 3664
exists as a procedural statutory section, applying to both the VWPA and the MVRA. See
18 U.S.C. §§ 3663(d) and 3663A(d). As such, decisions of this Court interpreting 18
U.S.C. § 3664 apply in equal force to restitution orders arising under the VWPA or the
MVRA.
        10
        We note this does not preclude Diaz’s challenge that the amount recommended
by U.S. Probation Services does not accurately represent the direct costs to United
(Continued)
                                             21
                                               IV.

       For the reasons explained above, we vacate the order of restitution and remand for

redetermination of the issue of restitution.

                                                           VACATED AND REMANDED




Airlines; the statute simply mandates that the district court may not reduce the amount of
restitution due to Diaz’s alleged indigency.


                                               22
