Assault on a federal employee is not a violent felony

United States v. Ama, 2017WL1325247 (10th Cir. April 11, 2017) (UT): The panel finds that 18 U.S.C. § 111, assault on a federal employee, is not a violent felony as defined by the ACCA’s force clause. It says that § 111(a) is not divisible and the modified categorical approach is not applicable. The government argued (as it has in numerous Johnson habeas pleadings) that the modified categorical approach could be used to determine which of the alternative means were used to commit the offense. The panel explains the government is wrong because § 111(a)’s phrase “forcibly assaults, resists, opposes, impedes, intimidates, or interferes” are not elements, “but alternative means of committing the actus reus element of the offense.” The panel also dismisses the government’s argument that § 111(a) requires forcible conduct. It rules that even if the term “forcibly” extends to all six means, the offense requires force, but not violent force as defined in Johnson I (559 U.S. at 140). The panel points out that “even minor contact, such as laying one’s finger on anther person without lawful justification is forcible.” In other words, “mere forcible contact” which is enough to convict under § 111(a), does not rise to the level of physical force defined in Johnson I. The panel cites to numerous cases which illustrate that “mere contact” was enough to sustain a § 111(a) conviction.