USA v. Suesue et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
DENNIS SUESUE,
Defendant.
Case No. 3:07-cr-00035-TMB-KFM
FINAL REPORT AND
RECOMMENDATION1 REGARDING
A SUCCESSIVE 28 U.S.C. § 2255
MOTION TO VACATE
CONVICTION
[Docket No. 594]
I. 	MOTION PRESENTED
Before 	the 	Court 	is 	Dennis 	Suesue’s 	Circuit 	Court-authorized2 	successive
28 U.S.C. § 2255 motion to vacate and set aside his 18 U.S.C. § 924(c) firearm brandishing
conviction.3 The government opposed.4 Suesue provided a supplemental merits brief,5 to which
the government responded.6 	Suesue filed a reply merits brief7 and notices of supplemental
authority.8 No party asked for oral argument and the Court concludes that additional argument
would not be helpful. Upon careful consideration of the claims advanced by Suesue, this report
1 This report and recommendation is being issued as a final report and recommendation. Pursuant
to Fed. R. Crim. P. 59(b)(3), any objections will be considered by the District Court Judge, who will accept,
reject, or modify the recommendation, or resubmit the matter to the Magistrate Judge for additional
consideration and recommendations.
2 Docket No. 593.
3 Docket No. 594.
4 Docket No. 599.
5 Docket No. 600.
6 Docket No. 604.
7 Docket No. 605.
8 Docket Nos. 601; 606.
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recommends that the District Court, upon independent review, deny Suesue’s petition to vacate
his 18 U.S.C. § 924(c)(1) firearm brandishing conviction.
II. 	BACKGROUND
A. 	The Indictment, Trial, Sentence, and Judgment
In 2008, a grand jury returned a multi-count indictment against Suesue stemming
from an assault on a federal agent in March, 2007.9 The indictment charged Suesue in Count 1
with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), in Count 2 with
assaulting a federal agent in violation of 18 U.S.C. §§ 111(a)(1) and (b), in Count 3 with possession
with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), in Count 4
with armed robbery of federal property in violation of 18 U.S.C. §2114(a), in Count 5 with using
a firearm in furtherance of a crime of violence by brandishing a firearm during the assault on a
federal agent charged in Count 2 in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(c)(1)(A)(ii),
and in Counts 6 and 7 with threatening to assault or murder a family member of a federal law
enforcement officer, or a federal law enforcement officer in violation of 18 U.S.C. §§ 115(a)(1)(A),
(a)(1)(B), and (b)(1)(4).10
The trial jury convicted Suesue on all counts.11 	Suesue’s sentencing guideline
range for Counts 1–4, 6, and 7 combined was 262 to 327 months.12 	Suesue’s conviction for
Count 5, the § 924 (c) violation, resulted in an enhanced sentencing guideline range of 360 months
to life.13 The Court sentenced Suesue to a composite sentence of 360 months: 	120 months on
Count 1, 240 months on Counts 2 and 3, 276 months on Count 4, and 72 months on Counts 6 and
9 Docket No. 206.
10 Id.
11 Docket No. 373.
12 Docket Nos. 594 at 4; 600 at 4; see Docket No. 370 (sealed).
13 Docket Nos. 594 at 4; 600 at 4.
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7, all to be served concurrently; plus 84 months for Count 5, to be served consecutively to the other
counts.14
B. 	Direct Appeal
Suesue appealed his sentence, arguing that he was not a career offender.15 	The
Ninth Circuit affirmed.16 Suesue filed a petition for writ of certiorari to the U.S. Supreme Court,17
which the Supreme Court denied,18 making his conviction final on May 28, 2010.19
C. 	Motion Practice Related to Suesue’s Firearm Brandishing Conviction (Count 5) and
Sentence
Suesue filed a pro se § 2255 motion to vacate sentence on April 18, 2016.20 	In
2017, through counsel, Suesue sought leave from the Ninth Circuit to file a successive 28 U.S.C.
§ 2255 motion to vacate only his §§ 924(c)(1)(A) and 924(c)(1)(A)(ii) firearm brandishing
conviction (Count 5).21 Initially, he also sought to challenge his designation as a career offender
and the corresponding Guidelines enhancements;22 he abandoned the career offender challenge
after the Supreme Court decided Beckles v. United States.23 The appellate court authorized the
14 Docket Nos. 594 at 5; 600 at 4.
15 See United States v. Suesue, 362 F. App’x 877 (9th Cir. 2010).
16 Id. at 878.
17 Docket No. 399.
18 Docket No. 401.
19 Id.; see United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (a judgment is final for
§ 2255 purposes when a petition for certiorari is “finally denied”).
20 Docket No. 580.
21 Docket No. 594 at 2.
22 Id.
23 137 S. Ct. 886 (2017); see Docket No. 600 at 2 n.2.
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filing,24 which this Court in turn treated as Suesue’s second or successive § 2255 motion to vacate
his conviction.25
1. 	Suesue’s motion to vacate
Suesue’s motion to vacate his § 924(c)(1) conviction is dependent on three
concepts: (1) that assault on a federal officer does not qualify as a “crime of violence” without
relying on the “risk-of-force” clause26 of 18 U.S.C. § 924(c)(3)(B);27 (2) that the Supreme Court
in Johnson v. United States (“Johnson II”)28 recently struck down a similarly worded “crime of
violence” definition in the Armed Career Criminal Act’s (ACCA) risk-of-force clause;29 and
(3) the 	reasoning 	in 	Johnson 	II 	requires 	the 	conclusion 	that 	the 	risk-of-force 	clause 	in
§ 924(c)(3)(B) 	is 	unconstitutionally vague.30 	Suesue asks 	that 	his 	§§ 	924(c)(1)(A) 	and
924(c)(1)(A)(ii) firearm brandishing conviction be vacated because the alleged predicate “crime
of violence,” assault on a federal officer, no longer qualifies after Johnson II.31
24 Docket No. 593. The District Court earlier denied Suesue’s first § 2255 motion as untimely.
Docket Nos. 408; 471. 	The District Court rejected Suesue’s request for a certificate of appealability.
Docket Nos. 476; 484; 489. The Ninth Circuit denied Suesue’s appeal of the District Court’s dismissal of
his first § 2255 motion. Docket No. 549 (affirming the District Court decision that the motion was untimely,
and stating that had the Ninth Circuit reached the merits, it still would have dismissed his motion). Suesue
petitioned the U.S. Supreme Court for writ of certiorari. Docket No. 561. The Supreme Court denied the
petition. Docket No. 562.
25 Docket No. 598.
26 Some courts have referred to § 924(c)(3)(b) as the residual clause. See, e.g., United States v.
Wheeler, 857 F.3d 742, 744 (7th Cir. 2017). This Court adopts the terminology used by the Second Circuit
in United States v. Hill, 832 F.3d 135, 138 n.4 (2d Cir. 2016) (“The parties’ briefs refer to § 924(c)(3)(B)
as the ‘residual clause.’ 	We think the shorthand ‘risk-of-force clause’ is clearer and thus adopt that
terminology.”).
27 Docket No. 594 at 2.
28 135 S. Ct. 2551 (2015).
29 Docket No. 594 at 2, 9.
30 Id. at 2.
31 Id. 	Suesue’s initial motion to vacate included an additional assertion that he should not be
considered a career offender because his prior conviction for burglary also was improperly analyzed under
an unconstitutionally vague risk-of-force in the United States Sentencing Guidelines § 4B1.2(a)(2). Docket
No. 594 at 2–3. Because Suesue conceded this claim after the decision in Beckles, see supra note 23, we
do not discuss it. Docket No. 600 at 2 n.2.
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In particular, he argues that the offense he was convicted of, assault on a federal
officer under 18 U.S.C. §§ 111(a) and (b), is not a crime of violence under § 924(c)(3). Section
924(c)(3) provides two definitions for a crime of violence: a felony offense that involves either
the use of force, or a substantial risk of force. Suesue says that assault on a federal officer does
not have “as an element the use, attempted use, or threatened use of physical force against the
person or property of another” required under § 924(c)(3)(A) (the “force clause”).32 He also asserts
that § 924(c)(3)(B), the “risk-of-force clause,” is unconstitutionally vague after Johnson II in
violation of the Fifth Amendment Due Process clause.33
2. 	The government’s opposition
The government opposes Suesue’s collateral attack for four reasons.34 	First, the
government asserts that Suesue’s § 924(c)(3)(B) claim is procedurally defaulted because he failed
to raise his vagueness and due process challenges before the trial court or on direct appeal, and he
has not shown cause and actual prejudice.35 Second, the government says that Suesue’s motion is
time-barred by the one-year limitation contained in § 2255(f).36 Third, the government contends
that assault on a federal officer categorically qualifies as a crime of violence under the force
clause.37 Fourth, the government disagrees with Suesue’s claim that the risk-of-force clause in
§ 924(c)(3)(B) is unconstitutionally vague.38 Moreover, between the time when Suesue filed his
motion to vacate and when the government submitted its response in opposition, the Supreme
32 Docket No. 594 at 11–22.
33 Id. at 7–9.
34 Docket No. 599 at 5–6.
35 Id. at 6–7.
36 Id. at 7–8.
37 Id. at 8–15.
38 Id. at 15–20.
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Court decided Beckles.39 The government accurately indicated that Beckles foreclosed Suesue’s
unconstitutional sentencing guideline enhancement argument.40
Both parties submitted supplemental merits briefing supporting the arguments
made in their initial pleadings.41 Additionally, Suesue filed two notices of supplemental authority
to further support his merit briefing.42
III. 	ISSUE PRESENTED
Is Assault on a Federal Officer involving the threatened use of a deadly or
dangerous weapon under 18 U.S.C. 111(a) and (b) a “crime of violence” within the meaning of
18 U.S.C. § 924(c)(3) when it is the predicate crime of violence for an alleged § 924(c)(1)(A)
firearm brandishing violation?
IV. 	ANALYSIS
A. 	Introduction
Upon careful evaluation of the claims advanced by Suesue, this Court recommends
that the District Court deny his § 2255 motion to vacate the firearm brandishing conviction.
Suesue’s motion must be denied because: (1) his application is procedurally defaulted, and (2) his
request is time-barred. 	More importantly, Suesue cannot prevail because assault on a federal
officer involving a deadly or dangerous weapon, 18 U.S.C. §§ 111(a) and (b), is a crime of violence
under the force clause. 	Therefore, it categorically satisfies the predicate “crime of violence”
requirement for the firearm brandishing conviction. Because assault on a federal officer involving
a deadly or dangerous weapon so clearly qualifies as a crime of violence under the force clause,
this Court does not reach Suesue’s risk-of-force vagueness claim.
39 137 S. Ct. 886 (2017).
40 Docket No. 599 at 21.
41 Docket Nos. 600; 604; 605.
42 Docket Nos. 601; 606.
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B. 	The Government’s Procedural Default and Time-Bar Arguments are Persuasive
The government prevails on the procedural default and time-bar arguments,
primarily because assault on a federal officer involving a deadly or dangerous weapon
categorically matches the force clause.
1. 	Suesue’s procedural default is not excused
Suesue admits the procedural default because he failed to raise the due process
challenge in the trial court and, thereafter, on direct appeal.43 However, he seeks to excuse the
default by claiming actual innocence and by alleging cause for the default and actual prejudice.44
Suesue’s arguments are not persuasive.
(a) 	Actual innocence
Actual innocence means factual innocence.45 	Suesue’s actual innocence claim
centers on the contention that his conviction for assault on a federal officer does not qualify as a
crime of violence and that his conduct could not, therefore, violate the firearm brandishing
statute—which requires the conduct to be associated with a crime of violence.46 	But, as
demonstrated below, assault on a federal officer categorically qualifies as a crime of violence under
the force clause. For this reason, Suesue has failed to demonstrate actual innocence, and cannot
thereby excuse the procedural default.
(b) 	Cause and actual prejudice
Suesue next contends that the due process challenge to § 924(c)(3) was not
reasonably available before his conviction became final.47 	He reasons that when Johnson II
43 Docket No. 600 at 10.
44 Id. at 10–12.
45 Bousley v. United States, 523 U.S. 614, 623 (1998).
46 Docket No. 600 at 10.
47 Id. at 12.
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declared the ACCA risk-of-force clause unconstitutionally vague, it expressly overruled James v.
United States and Sykes v. United States.48 James49 and Sykes50 each opined that the ACCA risk-
of-force clause was not unconstitutionally vague.51 Suesue then claims actual prejudice by arguing
his conduct did not violate the firearm brandishing statute because assault on a federal officer does
not qualify as a crime of violence under the force clause or the risk-of-force clause, rendering his
§ 924(c) conviction unconstitutional.
(i) 	Not reasonably available
A procedural default can be excused when “the legal basis for [the] claim was not
reasonably available to counsel” before trial or when the guilty plea was entered.52 But the claim
must be “so novel that its legal basis is not reasonably available to counsel” before it will excuse
a procedural default.53 Adverse precedent alone does not make a claim unavailable. This is so
because “futility cannot constitute cause if it means simply that a claim was unacceptable to that
particular court at that particular time.”54
Suesue urges this Court to apply the analysis in Reed v. Ross55 to find that the
Supreme Court decision in Johnson II fell into Reed’s first two categories, namely that it:
“(1) explicitly overrules one of the Court’s precedents; or (2) overturns a longstanding and
widespread practice to which the Court has not spoken, ‘but which a near-unanimous body of
lower court authority has expressly approved.’”56
48 Id.; see Johnson II, 135 S. Ct. at 2563.
49 550 U.S. 192, 210 n.6 (2007).
50 564 U.S. 1, 14–16 (2011).
51 Johnson II, 135 S. Ct. at 2563.
52 Bousley v. United States, 523 U.S. 614, 622 (1998).
53 Id.
54 Id. at 623 (quotation marks omitted) (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982)).
55 468 U.S. 1, 15 (1984).
56 Docket No. 600 at 11; see also Reed, 468 U.S. at 17 (citation omitted).
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Suesue’s argument here57 is not persuasive. Suesue asserted on direct appeal that
his previous military conviction in 1998 for burglary did not qualify as a predicate crime of
violence for career offender purposes.58 As the government notes, if Suesue could argue that a
burglary conviction was not categorically a crime of violence under Taylor,59 he certainly could
have asserted that assaulting a federal officer was not categorically a crime of violence under
§ 924(c)(3).60 	Before Johnson II, courts routinely resolved challenges to the meaning and
applicability of a “crime of violence” in multiple contexts.61 Nothing about Suesue’s current due
process challenge can be fairly considered to be so novel that its legal basis was not reasonably
available to his counsel before his sentence became final. Suesue’s procedural default cannot be
excused because his due process challenge as to the force clause was reasonably available in 2008.
(ii) 	Actual prejudice
But, even if that were not so, Suesue has failed to demonstrate actual prejudice. His
actual prejudice argument centers on Johnson II.62 Johnson II holds that the similarly (but not
identically) worded risk-of-force definition in the ACCA63 “denies fair notice to defendants and
invites arbitrary enforcement by judges” when used to increase the applicable penalties from a
maximum of ten years to a statutory mandatory minimum sentence of fifteen years up to life.64
Suesue contends that the consecutive 84-month § 924(c) sentence constitutes actual prejudice.
57 Docket No. 600 at 11.
58 See United States v. Suesue, 362 F. App’x 877, 879 (9th Cir. 2010); see also Docket No. 604
at 7. 59 Taylor v. United States, 495 U.S. 575 (1990).
60 Docket No. 604 at 7.
61 See, e.g., United States v. Juvenile Female, 566 F.3d 943 (9th Cir. 2009); United States v.
Dominguez-Maroyoqui, 748 F.3d 918, 919 (9th Cir. 2014); United States v. Hernandez-Castellanos, 287
F.3d 876, 881 (9th. Cir. 2002).
62 135 S. Ct. 2551 (2015).
63 18 U.S.C. § 924(e).
64 135 S. Ct. at 2557; but see Beckles, 137 S. Ct. at 897 (holding the U.S.S.G., and in particular
the identically worded risk-of-force clause in § 4B1.2, is not subject to a constitutional void for vagueness
challenge).
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But, once again, as demonstrated below, persuasive authority convincingly
establishes that assault on a federal officer categorically qualifies as a crime of violence under the
force clause and no analysis under the risk-of-force clause is required. Thus, Suesue’s procedural
default cannot be excused because he has not suffered actual prejudice.
2. 	Suesue’s collateral attack is time-barred
Title 28 United States Code section 2255(f) establishes a one-year period of
limitation on motions to vacate a conviction and sentence. Suesue’s conviction became final on
May 28, 2010,65 and the current collateral attack comes nearly six years later. 	Relevant to the
present challenge, § 2255(f)(3) allows for a post-conviction relief application one year from “the
date on which the right asserted was initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made retroactively applicable to cases on
collateral review.”66
Suesue’s risk-of-force challenge centers, by analogy, on (1) Johnson II’s holding
that the ACCA’s risk-of-force clause violates the Fifth Amendment as unconstitutionally vague
when used to elevate statutory maximum sentence from ten years to a statutory mandatory
minimum sentence of not less than fifteen years and up to life, and (2) the Ninth Circuit’s holding
in Dimaya v. Lynch67 that the risk-of-force clause found in 18 U.S.C. § 16(b) is unconstitutionally
vague when applied in an immigration removal context. Johnson II applies retroactively to ACCA
cases on collateral review.68 Suesue’s risk-of-force clause challenge was filed within one year of
that holding. 	Although the Supreme Court affirmed Dimaya,69 there is, as yet, no comparable
65 See Docket No. 401; see supra note 19.
66 28 U.S.C. § 2255(f)(3).
67 803 F.3d 1110 (9th Cir. 2015), aff’d sub nom, Sessions v. Dimaya, ___ U.S. ___, 2018 WL
1800371 (April 17, 2018).
68 Welch v. United States,136 S. Ct. 1257, 1268 (2016).
69 Sessions v. Dimaya, ___ U.S. ___, 2018 WL 1800371 (April 17, 2018).
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Supreme Court collateral review holding in Dimaya. Moreover, Suesue cites no Supreme Court
authority, and this Court can find none, which holds that Suesue’s force clause due process
challenge has been retroactively approved for cases on collateral review.
For all these reasons, Suesue’s current collateral attack is time-barred under
§ 2255(f).
C. 	Assault on a Federal Officer Categorically Qualifies as a Crime of Violence Under
§ 924(c)(3)
Even if this Court were to find that Suesue’s motion could proceed notwithstanding
his procedural default and failure to meet the timeliness requirement of § 2255(f), Suesue is not
entitled to relief on the merits. 	This is so because assault on a federal officer involving the
threatened use of force with a deadly or dangerous weapon is a crime of violence under the force
clause of § 924(c)(3).
Title 18 United States Code section 924(c)(1)(A) outlaws using a firearm during
and in relation to a crime of violence. It provides in pertinent part:
(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise
provided by this subsection or by any other provision of law, any person who,
during and in relation to any crime of violence or drug trafficking crime (including
a crime of violence or drug trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or dangerous weapon or device)
for which the person may be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for such crime of violence or drug
trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of
not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of
not less than 10 years.70
70 18 U.S.C. § 924(c)(1)(A) (emphasis added).
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The definition of “crime of violence” in 18 U.S.C. § 924(c) is:
(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 or property of another [“Force Clause”], 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 [“Risk-of-force Clause”].
Suesue was convicted of charges including assault on a federal officer in violation
of 18 U.S.C. §§ 111(a) and (b).71 Section 111 provides:
§ 111. Assaulting, resisting, or impeding certain officers or employees
(a) In general.—Whoever—
(1) 	forcibly assaults, resists, opposes, impedes, intimidates, or interferes
with any person designated in section 1114 of this title while engaged in or on
account of the performance of official duties; or
(2) 	forcibly assaults or intimidates any person who formerly served as a
person designated in section 1114 on account of the performance of official duties
during such person’s term of service,
shall, where the acts in violation of this section constitute only simple assault, be
fined under this title or imprisoned not more than one year, or both, and where such
acts involve physical contact with the victim of that assault or the intent to commit
another felony, be fined under this title or imprisoned not more than 8 years, or
both.
(b) 	Enhanced 	penalty.—Whoever, 	in 	the 	commission 	of 	any acts
described in subsection (a), uses a deadly or dangerous weapon (including a weapon
intended to cause death or danger but that fails to do so by reason of a defective
component) or inflicts bodily injury, shall be fined under this title or imprisoned
not more than 20 years, or both.
71 See Docket No. 373 at 1 (“The defendant is adjudicated guilty of . . . 18 U.S.C. § 111(a)(1) and
(b)”).
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1. 	Suesue’s force clause challenge
Suesue challenges his firearm brandishing conviction by asserting that assault on a
federal officer under 18 U.S.C. § 111 does not qualify as a crime of violence under the force
clause.72 He contends that § 111(a) does not qualify because any level of force may be used.73
This Court need not reach the issue regarding § 111(a), because there is no dispute that Suesue’s
conviction includes the enhanced penalty specified under § 111(b).74 	Therefore, this Court’s
analysis centers on whether a § 111(b) offense is a crime of violence. Under the Ninth Circuit’s
binding ruling in Juvenile Female,75 this Court concludes that a § 111(b) conviction qualifies as a
crime of violence.
Suesue’s argument that § 111(b) is not a crime of violence is twofold: (1) the statute
only requires that a person “inflict bodily injury” which may not necessarily require violent force;76
and (2) the statute does not require that the use or threatened use of force be intentional.77 The
government responds that, upon application of the modified categorical approach, Suesue’s
conviction for § 111(b), assault involving a deadly or dangerous weapon or resulting in bodily
injury, is a crime of violence because it “has as an element the use, attempted use, or threatened
use of physical force.”78 The government contends that “force that causes injury, even if indirectly,
is clearly sufficient to rise to the level of violence necessary to satisfy”79 the definition in the 2010
Supreme Court opinion Johnson v. United States (Johnson I).80
72 Docket. No. 600 at 15.
73 Id.
74 Id. at 4; Docket No. 604 at 2.
75 566 F.3d at 948.
76 Docket No. 600 at 15–20.
77 Id. at 20–22.
78 Docket No. 604 at 12–13.
79 Id. at 18.
80 559 U.S. 133, 137 (2010).
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The government also opposes Suesue’s contention that the statute does not require
intentional force.81 	The government submits that Juvenile Female’s holding that a § 111(b)
offense is a crime of violence under the force clause has not been disturbed by Johnson I or any
other authority.82
(a) 	Assault on a federal officer requires the use of violent force
To determine if a specific conviction falls under the definition of crime of violence,
courts employ the categorical approach.83 	Courts must “determine whether the statute of
conviction is categorically a ‘crime of violence’ by comparing [its] elements . . . with the generic
federal definition,” that is, the force clause definition for “crime of violence.”84 Courts “look to
the elements of the offense rather than the particular facts underlying the defendant’s own
conviction.”85 If the elements of assault on a federal officer are the same as or narrower than those
required for a crime of violence, it is a categorical match. If the comparison were to reveal the
assault on a federal officer statute’s elements to be overbroad, the statute could still fall within the
meaning of a crime of violence. The next step in the analysis is to determine whether the elements
of assault on a federal officer are divisible or indivisible.
If the elements are indivisible, the assault on a federal officer statute is overbroad
and cannot be a categorical match with a crime of violence. 	If divisible, meaning a statute that
contains “multiple, alternative elements of functionally separate crimes[,]”86 the court applies what
is commonly referred to as the “modified categorical approach,” and looks at certain extraneous
81 Docket No. 604 at 18.
82 Id. at 19.
83 Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). See also Taylor v. United States, 495
U.S. 575 (1990).
84 United States v. Sahagun-Gallegos, 782 F.3d 1094, 1098 (9th Cir. 2015).
85 United States v. Dominguez-Maroyoqui, 748 F.3d 918, 920 (9th Cir. 2014) (citing Descamps v.
United States, 133 S. Ct. 2276, 2281 (2013); United States v. Grajeda, 581 F.3d 1186, 1189 (9th Cir. 2009)).
86 Rendon v. Holder, 764 F.3d 1077, 1085 (9th Cir. 2014) (emphasis omitted).
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documents, such as charging documents, jury instructions, or plea agreements, to determine
whether an assault on a federal officer qualifies as a crime of violence under the force clause.87
In Dominguez-Maroyoqui, the Ninth Circuit held that § 111 specifies three distinct
offenses.88 Under a substantially similar previous version of the statute, they consisted of:
(1) a misdemeanor if the defendant’s acts constituted “only simple assault”;
(2) a felony with a 3–year statutory maximum under § 111(a) “in all other
cases”; and
(3) 	a felony with a 10-year statutory maximum under § 111(b) if the
defendant used a deadly or dangerous weapon or inflicted bodily injury.89
Analyzing the third offense, § 111(b), this Court compares the elements of that
offense with the elements in § 924(c)’s force clause. The Ninth Circuit previously has held that
assault on a federal officer involving a deadly or dangerous weapon or resulting in bodily injury
categorically qualifies as a crime of violence under the force clause.90 	In Juvenile Female, the
court identified two variants: (1) assault involving a deadly or dangerous weapon, and (2) assault
resulting in bodily injury.91 Suesue argues that Juvenile Female “did not discuss the level of force
necessary to commit the offense of assault on a federal officer.”92 However, the court in Juvenile
Female held:
A defendant charged with the first variant, assault with a deadly or a
dangerous weapon, must have always “threatened [the] use of physical force,” . . .
because he or she will have either made a “wilful attempt to inflict injury” or a
“threat to inflict injury,” Chapman, 528 F.3d at 1219–20 (internal quotation
87 United States v. Calvillo-Palacios, 860 F.3d 1285, 1288 (9th Cir. 2017) (“Where a statute is
divisible, we apply the ‘modified categorical approach’ under which we ‘consult a limited class of
documents, such as indictments and jury instructions, to determine which alternative element formed the
basis of the defendant’s prior conviction.”) (quoting Descamps, 133 S. Ct. at 2281).
88 Dominguez-Maroyoqui, 748 F.3d at 919.
89 Id. at 920.
90 Juvenile Female, 566 F.3d at 947.
91 Id.
92 Docket No. 600 at 15.
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omitted), with an object that “may endanger the life of or inflict great bodily harm
on a person.”93
Suesue’s argument that Johnson I has replaced the reasoning of Juvenile Female is
unpersuasive.94 In Johnson I,95 the Court was asked to decide whether a simple assault statute that
permitted conviction for any intentional physical contact, no matter how slight, which in turn was
a felony only because of a recidivist statute, qualified as a crime of violence under the ACCA.96
The Johnson I Court said no, holding that the force necessary for the ACCA predicate at least must
be that which is capable of causing physical pain or injury to another person.97 But Johnson I did
not address the “threatened use” variant that comprises Suesue’s conviction, that is, a fear assault
that threatens the use of physical force using a deadly or dangerous weapon.
Moreover, since Johnson I, well-reasoned cases from other circuits and from
district courts within the Ninth Circuit persuasively hold that § 111(b) offenses are crimes of
violence. These authorities persuade this Court to find that assault on a federal officer is a crime
of violence under the force clause of § 924(c).
Four circuits, post-Johnson II, have ruled that a violation of § 111(b) is a crime of
violence.98 The Tenth Circuit in Kendall reasoned:
Although one can violate § 111 in a number of ways—by assaulting,
resisting, opposing, impeding, intimidating, or interfering with a designated
official—every conviction under § 111 requires an assault. To determine if every
violation of § 111(b) is a crime of violence, then, we need only determine whether
both an assault that causes bodily injury and an assault with a deadly weapon
involve the use, threatened use, or attempted use of violent physical force. They
93 Juvenile Female, 566 F.3d at 948. Juvenile Female compared the elements of § 111(b) with
the elements of a crime of violence in 18 U.S.C. § 16(a), the identical analog to the force clause definition
of crime of violence in § 924 (c).
94 See Docket Nos. 605 at 3–4; 600 at 15.
95 559 U.S. 133 (2010).
96 Id. at 136–37.
97 Id.
98 See United States v. Kendall, 876 F.3d 1264, 1270 (10th Cir. 2017); United States v. Taylor,
848 F.3d 476, 491–95 (1st Cir. 2017); United States v. Rafidi, 829 F.3d 437, 446 (6th Cir. 2016); United
States v. Hernandez-Hernandez, 817 F.3d 207, 214–17 (5th Cir. 2016).
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both do. A conviction under § 111(b) necessarily requires a finding the defendant
intentionally used, attempted to use, or threatened to use physical force against the
person of another.99
This Court agrees with the opinion in United States v. Bell that “Juvenile Female
remains binding on this Court and forecloses the argument that §111(b) is not a crime of violence
. . . under the § 924(c)(3) force clause.”100
(b) 	Assault on a federal officer requires the use of intentional force
Suesue also argues that assault on a federal officer cannot be a crime of violence
under the force clause because the statute does not specify a mens rea. Suesue asserts that under
United States v. Jim a § 111 offense is a general intent crime.101 Relying on Leocal v. Ashcroft102
and Fernandez-Ruiz v. Gonzales,103 Suesue says a crime of violence must be intentional and that
it must include an intent to use force. In other words, according to Suesue, a general intent will
not suffice and §111(b) assault categorically cannot constitute a crime of violence.
But Suesue’s argument fails for two reasons. 	First, even after Leocal and
Fernandez-Ruiz were decided, Juvenile Female held that § 111(b) is a crime of violence.104
Suesue’s claim that the court in Juvenile Female did not consider the issue and undertake the
proper categorical comparison is not persuasive.105 	Juvenile Female discussed the elements of
99 Kendall, 876 F.3d at 1270 (internal quotations and citations omitted).
100 158 F. Supp. 3d 906, 918 (N.D. Cal. 2016) (discussing the Supreme Court holding in United
States v. Castleman, 134 S. Ct. 1405 (2014), that precludes a similar argument that an indirect use of force
cannot give rise to a crime of violence).
101 Docket No. 600 at 20–21; see United States v. Jim, 865 F.2d 211, 215 (9th Cir. 1989).
102 543 U.S. 1, 9–10 (2004).
103 466 F.3d 1121, 1132 (9th Cir. 2006).
104 566 F.3d at 948.
105 Suesue takes issue with Juvenile Female’s citation to United States v. Spears, suggesting that
Spears created a narrower holding—it “dealt only with whether a defendant need know that the person he
assaults is a federal officer”—that would not apply in this analysis. See Docket Nos. 600 at 21; 594 at 22.
Spears held that § 111 “only requires an intent to assault, not an intent to assault a federal officer.” United
States v. Spears, 631 F.2d 114, 117 n.5 (9th Cir. 1980). This Court is satisfied that Spears and Supreme
Court authority establish that § 111 requires intent to assault. See also United States v. Feola, 420 U.S.
671, 684 (1975) (§ 111 requires only intent to assault, not intent to assault a federal official).
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§ 111, and plainly addressed the assault element. Comparing that mens rea element to the mens
rea necessary to meet the definition of crime of violence: 	assault on a federal officer requires
proof of intent; Leocal and Fernandez-Ruiz require more than mere negligence or recklessness.
Juvenile Female’s analysis is correct, and this Court is bound by it here. Furthermore, Juvenile
Female is not the only post-Leocal Ninth Circuit case to have concluded that assault on a federal
officer is a crime of violence. 	Dominguez-Maroyoqui approved Juvenile Female’s holding that
§ 111(b) is a crime of violence under the force clause.106
Second, when the offense of assault on a federal officer is analyzed as a general
intent crime, the Ninth Circuit has held that general intent “remains a sufficient mens rea to serve
as the basis for a crime of violence.”107 Suesue’s argument that §111(b) is a general intent crime
under Jim does not restrict this Court from concluding, in line with Ninth Circuit authority, that
§ 111(b) is a crime of violence under the force clause.
2. 	Suesue’s risk-of-force clause challenge
Suesue next challenges his conviction by contending that assault on a federal officer
cannot qualify as a crime of violence under the risk-of-force clause. 	He relies on Johnson II108
and Dimaya,109 to argue that the risk-of-force clause violates the Fifth Amendment Due Process
clause as unconstitutionally vague. 	On April 17, 2018, the Supreme Court affirmed Dimaya,
holding that 18 U.S.C. § 16(b), as incorporated in the Immigration and Nationality Act, is
unconstitutionally vague.110
106 748 F.3d at 920.
107 United States v. Werle, 877 F.3d 879, 882 (9th Cir. 2017).
108 135 S. Ct. 2551 (2015).
109 803 F.3d 1110 (9th Cir. 2015).
110 Sessions v. Dimaya, ___ U.S. ___, 2018 WL 1800371 (April 17, 2018).
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Suesue argues by analogy to Johnson II and the Ninth Circuit’s opinion in Dimaya
that the § 924(c)(3)(B) risk-of-force clause violates due process because it is unconstitutionally
vague. The risk-of-force question posed by Suesue is perplexing. However, persuasive authority
clearly holds that assault on a federal officer, 18 U.S.C. § 111(b) categorically qualifies as a crime
of violence under the force clause. Under these circumstances, it is not necessary to resolve this
difficult constitutional question in this case.
V. 	CONCLUSION
Based on the foregoing analysis, the Court recommends that the District Court,
upon independent review, deny Suesue’s 28 U.S.C. § 2255 motion to vacate his § 924(c)(1)(A)
firearm brandishing conviction and sentence at Docket No. 594.
DATED this 19th day of April, 2018, at Anchorage, Alaska.
/s/ Kevin F. McCoy
KEVIN F. MCCOY
United States Magistrate Judge
Pursuant to Fed. R. Crim. P. 59(b)(2) and D. Alaska Loc. Mag. R. 6(a), a party
seeking to object to this final finding and recommendation shall file written objections with the
Clerk of Court no later than the CLOSE OF BUSINESS on May 3, 2018. Pursuant to Fed. R.
Crim. P. 59(b)(3), objections will be considered first by the District Court Judge, who will then
accept, reject, or modify the recommendation, or resubmit the matter to the Magistrate Judge for
additional consideration. Failure to object to a magistrate judge’s findings of fact may be treated
as a procedural default and waiver of the right to contest those findings on appeal. 	Miranda v.
Anchondo, et al., 684 F.3d 844 (9th Cir. 2012). The Ninth Circuit concludes that a district court
is not required to consider evidence introduced for the first time in a party’s objection to a
magistrate judge’s recommendation. 	United States v. Howell, 231 F.3d 615 (9th Cir. 2000).
Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue
positions presented in motion papers. Rather, objections and responses shall specifically designate
the findings or recommendations objected to, the basis of the objection, and the points and
authorities in support. Response(s) to the objections shall be filed on or before the CLOSE OF
BUSINESS on May 10, 2018. The parties shall otherwise comply with provisions of D. Alaska
Loc. Mag. R. 6(a).
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Reports and recommendations are not appealable orders. 	Any notice of appeal
pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court’s judgment.
See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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