     Case: 18-10476      Document: 00515400622         Page: 1    Date Filed: 04/30/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                      No. 18-10476
                                                                                FILED
                                                                            April 30, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

DERRICK LENARD SMITH,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
CARL E. STEWART, Circuit Judge:
       The subject of this appeal is Defendant-Appellant Derrick Lenard
Smith’s crime of violence (COV) convictions under Counts Three, Five, Seven,
and Nine, in violation of 18 U.S.C. § 924(c). Smith was convicted on four counts
of using and carrying a firearm during a bank robbery and a subsequent
shootout with law enforcement. 1          The district court sentenced Smith to a
sentence of 1,320 months, and we affirmed. See United States v. Smith, 296
F.3d 344, 349 (5th Cir. 2002).



       1The factual and procedural history is chronicled in United States v. Smith, 296 F.3d
344, 345–46 (5th Cir. 2002).
     Case: 18-10476       Document: 00515400622          Page: 2     Date Filed: 04/30/2020



                                       No. 18-10476
       Fourteen years into his sentence, Smith filed a 28 U.S.C. § 2255 motion
seeking vacatur of this sentence in light of Johnson v. United States, 135 S. Ct.
2551 (2015), which rendered a residual clause similar to the one found in §
924(c)(3)(B) unconstitutionally vague. Johnson, 135 S. Ct. at 2257, 2263. As a
result, Smith contended that his § 924(c) convictions were no longer valid. The
district court denied the § 2255 motion, relying on our precedent (at the time)
that foreclosed vagueness challenges to § 924(c)(3)(B). 2 The district court also
concluded that § 924(c)(3)(B) was not unconstitutionally vague.                         Smith
appealed, and we granted a certificate of appealability.
       Although the Supreme Court abrogated the precedent that the district
court relied on in denying this § 2255 motion, we nonetheless AFFIRM the
district court’s ruling on alternative grounds.
                                              I.
       In an appeal from the denial of a § 2255 motion, we apply de novo review
to legal questions such as the characterization of an offense as a COV. See
United States v. Reece, 938 F.3d 630, 633 (5th Cir. 2019). We nevertheless have
the discretion to affirm the district court’s § 2255 ruling on alternative grounds.
See Sealed Appellee v. Sealed Appellant, 900 F.3d 663, 666 (5th Cir. 2018).
                                              II.
       Smith maintains that the district court’s conclusion for denying his
§ 2255 motion is no longer valid because United States v. Davis, 139 S. Ct. 2319
(2019), rendered 18 U.S.C. § 924(c)(3)’s residual clause unconstitutional. We
agree.




       2 Cf. United States v. Jones, 854 F.3d 737, 740 (5th Cir. 2017) (relying on United States
v. Gonzalez-Longoria, 831 F.3d 670, 675 (5th Cir. 2016) (en banc), cert. granted, judgment
vacated, 138 S. Ct. 2668 (2018) (Mem.), and abrogated by Sessions v. Dimaya, 138 S. Ct. 1204
(2018)).
                                               2
     Case: 18-10476      Document: 00515400622        Page: 3    Date Filed: 04/30/2020



                                     No. 18-10476
      As an initial point, 18 U.S.C. § 924(c) penalizes “any person who, during
and in relation to any [COV] . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm.” Section 924(c) is part of a
larger statute imposing sentencing enhancements, provided the defendant
commits a predicate COV. “The statute contains two clauses defining COV”: a
felony offense that (1) “‘has as an element the use, attempted use, or
threatened use of physical force against the person or property of another’” (the
elements clause), or (2) “by its nature, involves a substantial risk that physical
force against the person or property of another may be used in the course of
committing the offense” (the residual clause). Reece, 938 F.3d at 632 (quoting
18 U.S.C. § 924(c)(3)(A), (B)).
                                 A. The Residual Clause
      The Supreme Court recently made clear that the § 924(c)(3)(B) residual
clause was unconstitutionally vague. 3 United States v. Davis, 139 S. Ct. 2319,
2336 (2019). Because Davis invalidated the residual clause, Smith may “avail
himself of [Davis’s] protection.” Reece, 938 F.3d at 635 (holding that the rule
announced in Davis applies retroactively).
      Here, considering the merits of Smith’s petition, he is correct that, in
light of Davis, the district court relied on case law that has since been overruled
by the Supreme Court. However, Smith’s firearms convictions can still be
sustained if the predicate offenses—bank robbery (in violation of 18 U.S.C. §
2113) and attempted murder (in violation of 18 U.S.C. § 1114)—can be defined
as a COV under the elements clause contained in § 924(c)(3)(A).



      3  Several years earlier, in Johnson v. United States, the Supreme Court stroke down
the residual clause definition of a “violent felony” in the Armed Career Criminal Act (the
“ACCA”) as unconstitutionally vague. 135 S. Ct. 2551, 2555–57. The ACCA and
§ 924(c)(3)(B) residual clauses are identical in language; hence, why both suffer from the
same vagueness problems.

                                            3
     Case: 18-10476       Document: 00515400622          Page: 4     Date Filed: 04/30/2020



                                       No. 18-10476
                                  B. The Elements Clause
       The government’s position is that Smith’s bank robbery and attempted
murder predicate convictions qualify as COVs under the elements clause
because both require “the use, threatened use, [or] attempted use of physical
force.” We agree with the Government. 4
       To qualify as a COV, the predicate offense must have “as an element the
use, attempted use, or threatened use of physical force against the person or
property of another.” 18 U.S.C. § 924(c)(3)(A). The phrase “physical force” in
§ 924(e)(2)(B)(i)’s identically worded force clause “means violent force—that is,
force capable of causing physical pain or injury to another person.” Johnson v.
United States (Johnson I), 559 U.S. 133, 140 (2010).
       In deciding whether a crime falls within the ambit of § 924(c)(3)(A), we
are guided by the categorial approach. See United States v. Buck, 847 F.3d
267, 274 (5th Cir. 2017). This approach provides that we only analyze the
elements of Smith’s predicate offenses, 5 rather than the facts, and compare
those elements to “the elements of the ‘generic’ crime—i.e., the offense as
commonly understood.” Descamps v. United States, 570 U.S. 254, 257 (2013).
If the elements of Smith’s predicate offenses necessarily involve “the use,
attempted use, or threatened use of physical force against the person or




       4  On appeal, Smith is mum as to whether his predicate offenses are COVs under §
924(c)(3)’s elements clause. His position is that because this elements clause alternative was
not before the district court, the government forfeited its opportunity to raise it before us.
We disagree. As an initial point, the record reflects that the elements clause was before the
district court and Smith actually addressed this alternative in his original briefing.
Regardless, we are reviewing Smith’s § 2255 motion de novo and may affirm or deny on
alternative grounds not presented to the district court, if this were the case. See Sealed
Appellee, 900 F.3d at 666.
        5 “Elements,” for purposes of categorical analysis, “are what the jury must find beyond

a reasonable doubt to convict the defendant.” Mathis v. United States, 136 S. Ct. 2243, 2248
(2016).
                                              4
    Case: 18-10476     Document: 00515400622      Page: 5    Date Filed: 04/30/2020



                                  No. 18-10476
property of another,” then his predicate offenses may be treated as COVs for
sentence-enhancement purposes.
      This categorical approach is employed “when a statute sets out a single
(or ‘indivisible’) set of elements to define a single crime.” Mathis v. United
States, 136 S. Ct. 2243, 2248 (2016). If the statute at issue is divisible—that
is, if it “lists multiple, alternative elements, and so effectively creates ‘several
different . . . crimes’”—“we [employ the modified approach which we first]
determine which crime formed the basis of the defendant’s conviction.”
Descamps, 570 U.S. at 263–64 (quoting Nijhawan v. Holder, 557 U.S. 29, 41
(2009).   Once the charged crime is ascertained, we then do a categorical
approach analysis, i.e., compare the generic crime’s elements to those
disjunctive elements that formed the basis of the conviction. See id. at 260−63
(“[T]he modified approach merely helps implement the categorical approach
when a defendant was convicted of violating a divisible statute.”).
          1. Aggravated Bank Robbery
      We first look to Smith’s predicate aggravated bank robbery conviction in
violation of 18 U.S.C. § 2113(a) and (d). As we previously stated, “§ 2113(a)
constitutes a crime of violence” under Section 924(c)(3)(A)’s elements clause.
United States v. Pervis, 937 F.3d 546, 553 (5th Cir. 2019); see also United States
v. Cheers, 760 F. App’x 272, 273–74 (5th Cir. 2019) (per curiam) (same with
regard to a predicate offense of aiding and abetting an armed bank robbery, in
violation of 18 U.S.C. § 2113(a), (d)). In turn, because Smith’s federal bank
robbery offense is a COV under the elements clause, his firearm convictions
survive Smith’s habeas challenge. See Reece, 938 F.3d at 637 (“Federal bank
robbery constitutes a COV” under § 924(c)(3)(A) “‘because the least culpable
conduct under that statute requires, at a minimum, an implicit threat to use
force.’”) (quoting United States v. Cadena, 728 F. App’x 381, 382 (5th Cir. 2018)
(per curiam)).
                                         5
    Case: 18-10476     Document: 00515400622      Page: 6   Date Filed: 04/30/2020



                                  No. 18-10476
          2. Attempted Murder
      Turning to Smith’s attempted murder conviction in violation of 18 U.S.C.
§ 1114(3), Smith contends the elements clause cannot be applied retroactively.
We disagree. Cf. Reece, 938 F.3d at 635–37 (deciding, in the first instance,
whether the predicate conspiracy offense was a COV under the elements
clause). Smith fails to otherwise refute the assertion that attempted murder
under § 1114 is a COV.
      The Government maintains this conviction should be considered as a
COV because this offense trails the offense of federal murder, 18 U.S.C. § 1111,
which has an element the use of physical force. In other words, because
attempted murder is as much a crime of violence as murder itself. We agree.
      We have not previously characterized attempted murder as a COV under
§ 924(c)(3)’s elements clause. We therefore take this opportunity to do so.
      Modified Approach. First, we note that it is appropriate to employ the
modified approach here because § 1114 is a divisible statute. By its plain
language, this statute makes it a crime to “kill[] or attempt[] to kill any officer
or employee of the United States . . .,” which may be accomplished through
several enumerated offenses, each of which provides separate elements and
punishments. See 18 U.S.C. 1114(1)−(3) (containing the enumerated offenses
for murder, manslaughter, or attempted murder); accord Descamps, 570 U.S.
at 263.
      Having decided § 1114 is divisible, we now ascertain which portions of
the statute served as a basis of conviction. See Descamps, 570 U.S. at 257. In
doing so, the Supreme Court permits us to consider the “statutory definition,
charging document, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the trial judge to which the defendant assented.”
Shepard v. United States, 544 U.S. 13, 16 (2005). Upon review of Smith’s
Superseding Indictment, it is fairly straightforward that the precise basis of
                                        6
    Case: 18-10476     Document: 00515400622     Page: 7   Date Filed: 04/30/2020



                                  No. 18-10476
Smith’s conviction is attempted murder because he was charged with and
convicted of three counts (Four, Six, Eight) of attempting to kill three
individuals who were assisting federal law officers. Consequently, § 1114(3) is
the portion of the statute applicable here.
      Accordingly, we compare the elements of 18 U.S.C. §§ 1114(3), 1113 (the
enumerated statute for attempted murder), to the definition of a “crime of
violence” found in § 924(c)(3).
      Crime of Violence Qualification. “[T]o be guilty of an attempted killing
under 18 U.S.C. § 1114, he must have taken a substantial step towards that
crime and must also have had the requisite mens rea.” Braxton v. United
States, 500 U.S. 344, 349 (1991) (emphasis in original).
      The question now becomes whether the Government is required to prove
any element regarding the use, attempted use, or threatened use of physical
force, in order to convict Smith (or any defendant) of attempted murder under
§ 1114(3). “[T]he clause has two key terms: ‘use’ and ‘physical force.’” United
States v. Reyes-Contreras, 910 F.3d 169, 185 (5th Cir. 2018) (en banc)
(analyzing U.S.S.G. § 2L1.2 cmt. 1(B)(iii) (2014), which is nearly identical to
the elements clause). The phrase “physical force” means “violent force—that
is force capable of causing physical pain or injury to another person.” Johnson
I, 559 U.S. at 140 (emphasis in original). “Applying those precedents together,
then, a person uses physical force when he knowingly or intentionally applies
or employs a force capable of causing physical pain or injury.” Reyes-Contreras,
910 F.3d at 185. “And none of this ‘demand[s] that the person applying force
have the purpose or practical certainty that it will cause harm, [but merely]
the understanding that it is substantially likely to do so.’” Id. (quoting Voisine
v. United States, S. Ct. 2272, 2279 (2016)).
      Using the foregoing as guideposts, it is clear that this offense meets this
COV benchmark. United States v. Castleman provides clarity. 572 U.S. 157,
                                        7
    Case: 18-10476     Document: 00515400622      Page: 8   Date Filed: 04/30/2020



                                  No. 18-10476
169 (2014).    In Castleman, the Supreme Court considered the “crime of
violence” definition of 18 U.S.C. § 922(g)(9), which is nearly identical to the
elements clause as it requires that an offense have “as an element, the use or
attempted use of physical force.” Id. at 1409 (quoting § 921(a)(33)(A)(ii)); cf. 18
U.S.C. § 924(c)(3). Pointing to Johnson I, the High Court explained that
“‘physical force’ . . . encompasses even its indirect application.” Id. (quoting
Johnson I, 559 U.S. at 138). The fact “[t]hat the harm occurs indirectly, rather
than directly (as with a kick or punch), does not matter.” Id. Consequently,
the Court held that “the knowing or intentional causation of bodily injury
necessarily involves the use of physical force.” Id. at 170. It is the specific
intent of the attempt in completing the commission of a violent crime, here,
being murder, that is most important.
      Smith was convicted of having the specific intent and taking a
substantial step toward causing the death of a federal agent. “‘Common sense
dictates that murder is categorically a [COV] under the force clause.’” Reyes-
Contreras, 910 F.3d at 187 n.38 (quoting In re Irby, 858 F.3d 231, 237 (4th Cir.
2017)); In re Amawi, 780 F. App’x 301, 306 (6th Cir. 2019) (“It cannot be
seriously argued that murder is anything other than a crime of violence.”).
      “When a substantive offense would be a crime of violence under 18 U.S.C.
§ 924(c)(3)(A), an attempt to commit that offense is also a crime of violence.”
United States v. Dominguez,—F.3d—, 2020 WL 1684084, at *8 (9th Cir. Apr.
7, 2020). Other sister circuits follow this line of reasoning. See Hill v. United
States, 877 F.3d 717, 719 (7th Cir. 2017), cert. denied, 139 S. Ct. 352 (2018)
(considering Illinois’s attempted murder statute and holding that “[w]hen a
substantive offense would be a violent felony under § 924(e) [under Armed
Career Criminal Act (ACCA)] and similar statutes, an attempt to commit that
offense is also a violent felony.”); United States v. St. Hubert, 909 F.3d 335, 352
(11th Cir. 2018) (“Given . . . the rule that conviction of attempt requires proof
                                        8
    Case: 18-10476    Document: 00515400622       Page: 9   Date Filed: 04/30/2020



                                   No. 18-10476
of intent to commit all elements of the completed crime, attempted Hobbs Act
robbery qualifies as a crime of violence under § 924(c)(3)(A).”) (internal
quotation and citation omitted).
      We see no reason to depart from the foregoing logic and accordingly join
those circuits that have recognized the assertion that a predicate attempt
offense that includes the specific intention to commit a COV and a substantial
step in an effort to bring about or accomplish that COV, is in and of itself a
COV under the elements clause.
      Smith’s attempted murder conviction is therefore by extension a COV.
Accord James v. United States, 550 U.S. 192, 208 (2007) (noting in the ACCA
context that attempted murder is a “prototypically violent crime”), overruled
on other grounds by Johnson v. United States, 135 S. Ct. 2251 (2015). Even if
Smith’s substantial step was a nonviolent act to cause another’s death, that
act is an attempt to commit a COV, which is sufficient to satisfy the elements
clause’s “physical force” requirement. See United States v. Calderon-Pena, 383
F.3d 254, 271 (5th Cir. 2004) (en banc) (per curiam) (Smith, J., dissenting)
(“Attempted murder may be undertaken by other than attempts to cause
‘bodily’ or ‘physical’ contact, yet no court reasonably would hold that attempted
murder is a crime that does not involve the ‘attempted use of physical force
against the person of another.’”), overruled on other grounds by Reyes-
Contreras, 910 F.3d at 184; accord Dominguez, at *8 (concluding that
attempted Hobbs Act robbery is a COV because “[a] criminal who specifically
intends to use violence, and then takes a substantial step toward that use, has,
by definition, attempted a violent crime, albeit an uncompleted one.”).
      Given that attempted murder invariably requires the actual, attempted,
or threatened use of physical force, Smith’s predicate § 1114 conviction fits the
§ 924(c)(3) prism as a COV.


                                        9
   Case: 18-10476    Document: 00515400622     Page: 10   Date Filed: 04/30/2020



                                No. 18-10476
     Because we find that Smith’s § 2113 and § 1114 convictions qualify as
COVs under § 924(c)(3)(A), Davis does not impact his convictions.
                                     III.
     For the foregoing reasons, we AFFIRM the district court’s denial of
Smith’s § 2255 motion regarding Smith’s predicate aggravated bank robbery
and attempted murder convictions, on the foregoing alternative grounds.




                                     10
