United States District Court, D. Nevada
January 5, 2017
UNITED STATES OF AMERICA, Plaintiff,
ADAM SCOTT, Defendant.
C. JONES, UNITED STATES DISTRICT JUDGE
jury indicted Defendant Adam Scott of two counts each of
assault with a dangerous weapon, 18 U.S.C. § 113(a)(3),
use of a firearm during and in relation to a crime of
violence, 18 U.S.C. § 924(c)(1)(A), based on Scott
having shot a firearm at several Indian victims (one of whom
was struck in the abdomen) on the Fort McDermitt Indian
Colony. (See Indictment, ECF No. 8). Defendant pled
guilty to one charge under § 924(c)(1)(A) pursuant to a
plea agreement, and the Court sentenced him to ten years
imprisonment. (See J. 1-2, ECF No. 30). Defendant
did not appeal and in fact waived all appeals or collateral
attacks, including habeas corpus motions under 28 U.S.C.
§ 2255, except claims of ineffective assistance of
counsel. (See Plea Agreement 8, ECF No. 24).
Defendant has now filed a habeas corpus motion under §
noted, the right to bring the present motion has been waived.
Even if not waived, however, the claim would be without
merit. Defendant argues the assault with a dangerous weapon
charged in Count 1 that formed the basis for his conviction
under Count 2 was not a “crime of violence” under
18 U.S.C. § 924(c)(3) because the residual clause
defining “crime of violence” is similar to the
residual clause of § 924(e)(2), which the Supreme Court
has struck down as unconstitutionally vague. See Johnson
v. United States (Johnson II), 135 S.Ct. 2551, 2563
(2015). The definition of “crime of violence”
applied to Defendant reads as follows, with the allegedly
unconstitutionally vague residual clause emphasized:
(3) For purposes of this subsection the term “crime of
violence” means an offense that is a felony and--
(A) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(B) 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. § 924(c)(3)(A)-(B) (emphasis added). The
definition of “violent felony” at issue in
Johnson II reads as follows, with the
unconstitutionally vague residual clause emphasized:
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another
Id. § 924(e)(2)(B)(i)-(ii) (emphasis added).
The language of the two clauses is not identical, but even
assuming for the sake of argument that the difference in
language is not enough to rescue § 924(c)(3)(B) from
constitutional infirmity, Johnson II is no aid to
Defendant, because the physical-force clause of §
924(c)(3)(A) applies here.
with a dangerous weapon under § 113(a)(3) “has as
an element the use, attempted use, or threatened use of
physical force against the person of another, ”
id. § 924(c)(3)(A), so long as by
“assault” Congress meant what is meant under the
common law. It did:
Because § 113 does not define “assault, ” we
have adopted the common law definitions: (1) “a willful
attempt to inflict injury upon the person of another, ”
also known as “an attempt to commit a battery, ”
or (2) “a threat to inflict injury upon the person of
another which, when coupled with an apparent present ability,
causes a reasonable apprehension of immediate bodily
United States v. Lewellyn, 481 F.3d 695, 697 (9th
Cir. 2007) (citing United States v. Juvenile Male,
930 F.2d 727, 728 (9th Cir. 1991); United States v.
Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976)). Either of
these two ways of committing an assault under §
113(a)(3) qualifies as a crime of violence under §
924(c)(3)(A), because they include as elements the attempt or
threat to inflict injury upon the person of another,
respectively. A conviction under § 113(a)(3) also
necessitates a threat of “violent” force, see
Johnson v. United States (Johnson I), 559 U.S. 133, 140
(2010) (“We think it clear that . . . the phrase
‘physical force' means violent force-that is, force
capable of causing physical pain or injury to another
person.”), because the threat must be made by means of
a “dangerous weapon, ” see 18 U.S.C.
with a “dangerous weapon” is force necessarily
capable of causing physical pain or injury. The Courts of
Appeals to address the issue have uniformly ruled that
assault- or battery-type crimes containing a dangerous
weapon-type element necessarily satisfy Johnson
I's requirement that any force used, attempted, or
threatened be “violent.” See United States v.
Whindleton, 797 F.3d 105, 111-16 (1st Cir. 2015);
United States v. Ovalle-Chun, 815 F.3d 222, 225-27
(5th Cir. 2016); United States v. Anderson, 695 F.3d
390, 399-401 (6th Cir. 2012); United States v.
Vinton, 631 F.3d 476, 485-86 (8th Cir.), cert.
denied, 132 S.Ct. 213 (2011); United States v.
Taylor, ___ F.3d ___, 2016 WL 7187303, at *6 (10th Cir.
2016); Turner v. Warden Coleman FCI (Medium), 709
F.3d 1328, 1341 (11th Cir. 2013); United States v.
Redrick, 841 F.3d 478, 484 (D.C. Cir. 2016). Assault
with a deadly weapon under § 113(a)(3) requires the
assault to be committed “with” the deadly weapon;
there can be no conviction simply because one is armed with a
deadly weapon while committing a simple assault or battery
not involving the weapon. Cf. United States v.
Werle, 815 F.3d 614, 622 (9th Cir. 2016). Because the
physical force clause applies to Defendant's offense, and
because the offense requires “violent” force,
neither Johnson I nor Johnson II is any aid to
HEREBY ORDERED that the Motions to Vacate, Set Aside or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF Nos.
32, 33) are DENIED.
FURTHER ORDERED that a certificate of appealability is
The Government used the word
“deadly” in the Indictment, but the statute uses
the word “dangerous.”