Federal Conviction of Assault with a Dangerous Weapon Is A Crime of Violence, Tenth Circuit Holds

United States v. Muskett, No. 17-2123, 2020 WL 4726020 (10th Cir. Aug. 14, 2020) (N.M.) 2255 appeal seeking to vacate a conviction for brandishing in furtherance of a crime of violence post-Davis. The predicate felony was assault with a dangerous weapon, 18 U.S.C. 113(a)(3). The government argued that even though Davis rendered the residual clause unconstitutional, the predicate satisfied the elements clause in 18 U.S.C. 924(c), rendering any problem harmless. The Tenth goes through the analysis that they’ve been going through lately, effectively rendering the Curtis Johnson Ievel of force (i.e. violent force) a nullity by applying Castleman and Ontiveros (both containing more expansive definitions of “physical force.”) Armed with this logic, the Court holds that 113(a)(3) crimes satisfy the elements clause reasoning “if one has attempted or threatened to inflict injury upon another person (thereby committing federal criminal assault), he has attempted or threatened physical force capable of causing physical pain or injury.” The Tenth also denies a due process/fair notice/ex post facto/retroactivity challenge. On this point, Bacharach dissented. He acknowledged that in 2013, when Muskett committed the crime, the Tenth’s precedent (Perez-Vargas, later overruled by Ontiveros) prevented the Court from treating 18 U.S.C. 113(a)(3) crimes as “crimes of violence” because they did not necessarily involve the direct use of physical force. Bacharach concluded that applying Ontiveros retroactively denied Mr. Muskett due process because that holding caused a sea change that was unforeseeable in 2013. Ed. note: In Borden v. U.S., No. 19-5410, the Supreme Court will address "Whether the 'use of force' clause in the Armed Career Criminal Act encompasses crimes with a mens rea of mere recklessness."