Saturday, November 30, 2019

Case o' The Week: Assault Challenge Worth a Shot - Gobert, Assault, and Johnson

   Is "Assault with a Deadly Weapon" a "crime of violence?"
   Distressingly, yes. 
United States v. Gobert, 2019 WL 6316678 (9th Cir. Nov. 26, 2019), decision available here.

The Hon. Judge Carlos Bea
Players: Decision by Judge Bea, joined by Judges Farris and Christen. Hard-fought appeal by AFPD David Ness, Fed. Defenders of Montana.

Facts: Gobert was driving on a reservation, drinking and using meth with friends. Id. A verbal interaction with another group of men escalated; Gobert shot at their truck with an AR15. Id.
  Among other things, Gobert was charged with 18 U.S.C. § 113(a)(3), assault with a dangerous weapon. Id. In a separate count, he was charged with 18 U.S.C. § 924(c), with the Section 113(a)(3) charge as the basis. Id.
  He plead to the § 924(c) charge, other counts were dismissed, and he was sentenced to five years. Id.
  Later, after Johnson v. United States, 559 U.S. 133 (2010), he filed Section 2255 motion (habeas), attacking the conviction by arguing that the Section 113(a)(3) charge was not a qualifying “crime of violence.” Id.

Issue(s): “The sole question presented by this appeal is whether the offense of assault with a dangerous weapon described in 18 U.S.C. § 113(a)(3) is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” Id. at *1.
  “The Supreme Court has held that to qualify as a “crime of violence” under the elements clause, the offense must have as an element the use, attempted use, or threatened use of “violent [physical] force—that is, force capable of causing physical pain or injury to another person.” Johnson . . . ; Davis, 139 S. Ct. at 2325–26 (applying Johnson to § 924(c)). The question thus is whether the offense defined in the assault with a dangerous weapon statute meets that standard. Under the categorical approach used to make that determination, see Mathis v. United States, 136 S. Ct. 2243, 2248 . . . (2016), the more specific question is whether the least serious form of the offense meets the Johnson standard, see Moncrieffe v. Holder, 569 U.S. 184, 190–91 . . . (2013). If it does, assault with a dangerous weapon qualifies categorically as a crime of violence.”

Held: “We hold that it is.” Id. “There is simply no room to find assault with a dangerous weapon under § 113(a)(3) anything but a crime of violence under § 924(c)(3)(A)’s elements clause following Juvenile Female and Calvillo-Palacios’s binding precedent. The least violent form of each offense is the threat to use violent physical force through the use of a dangerous weapon that reasonably caused a victim to fear immediate bodily injury, which under Juvenile Female and Calvillo-Palacios necessarily entails at least the ‘threatened use of violent physical force’ to qualify the offenses as crimes of violence under § 924(c)(3)(A)’s elements clause. See Calvillo-Palacios, 860 F.3d at 1290; Juvenile Female, 566 F.3d at 948.” Id. at *3.

Of Note: The defense theory in Gobert was that “using a display of force with a dangerous weapon that reasonably causes a victim to fear immediate bodily injury does not necessarily require the use or threatened use of violent force against another as required under Johnson.” Id. at *2.
  Judge Bea rejects that challenge, concluding that Ninth holdings on other “threat” statutes necessarily meant that Section 113(a)(3) required the “threatened use of violent physical force.” Id. at *3. Disappointing, but, as discussed below, a new opportunity?

How to Use: Take a hard look at the § 113(a)(3) jury instructions. See Ninth Cir. Model Jury Instruction 8.7, available here. Curiously, the requirement that the defendant “threatened the use of violent physical force” is not expressly in the model instruction for this offense. 
   Think about these newly-minted, Johnson-required elements when mulling jury instructions, and Rule 29 motions, for this assault offense.
For Further Reading: Can a crime with a mens rea of “recklessness” quality as an A.C.C.A. “crime of violence?” 
  The Supreme Court will let us know. It recently granted cert. on Walker. See summary here.   

Image of Judge Bea from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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