Daniel Mass, Jr. v. United States of America

NOT RECOMMENDED FOR PUBLICATION
No. 17-1209
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
DANIEL MASS, JR.,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
BEFORE: McKEAGUE, GRIFFIN, and WHITE, Circuit Judges.
PER CURIAM. Petitioner-Appellant Daniel Mass, Jr. appeals the district court’s order
denying his 28 U.S.C. § 2255 motion, which argues that in light of Johnson v. United States, 135
S.Ct. 2551 (2015) (“Johnson II”), his 1993 California assault conviction no longer qualifies as a
predicate “crime of violence” for career-offender status under the Sentencing Guidelines, U.S.S.G.
§§ 4B1.1(a), 4B1.2(a) (2002), which were mandatory at the time he was sentenced. See United
States v. Booker, 543 U.S. 220 (2005). We AFFIRM.
I. BACKGROUND
In 2002, Mass pleaded guilty to conspiracy to distribute and possess with intent to distribute
fifty kilograms or more of marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1). (R. 201, PID
126–28.) Because of his prior convictions, the district court found that Mass qualified as a career

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offender under § 4B1.1(a)1 of the then-mandatory Guidelines and sentenced him to 211 months’
imprisonment. Mass did not appeal.
On May 26, 2016, thirteen years after his conviction became final, Mass filed the instant
28 U.S.C. § 2255 motion. Relying on Johnson II, Mass argued that his prior California conviction
of assault2 could no longer serve as a predicate “crime of violence” under U.S.S.G. § 4B1.2(a),3
and that his earlier designation as a career offender was thus unconstitutional. Mass’s argument
rested on the premise that Johnson II’s holding invalidated not only the Armed Career Criminal
Act’s (“ACCA”) residual clause, but also the like-worded residual clause in the Sentencing
Guidelines.
The government filed a response in opposition and a motion to stay proceedings pending
the Supreme Court’s decision in Beckles v. United States, 137 S. Ct. 886 (2017). The district court
denied the motion for a stay, and considered and denied Mass’s § 2255 motion on the merits,
finding that the assault conviction “qualifies as a predicate offense through the force clause.” (R.
264. PID 392.) Mass appeals.
1 Section 4B1.1(a) states:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has
at least two prior felony convictions of either a crime of violence or a controlled substance offense.
2 Mass had three prior convictions potentially qualifying as “crime[s] of violence” or “controlled substance
offense[s]”: (1) a 1991 California conviction of possession of cocaine for sale, in violation of Cal. Health & Safety
Code § 11351; (2) a 1993 California conviction of assault, in violation of Cal. Penal Code § 245(a)(1); and (3) a 2002
California conviction of possession of a controlled substance while armed, in violation of Cal. Health & Safety Code
§ 11370.1. (R. 201, PID 136.) Mass concedes that (1) is a predicate offense, (Appellant’s Br. at 5), and the government
concedes that (3) is not a predicate offense, (R. 264, PID 382). Thus, only (2) is at issue.
3 Before its amendment in 2016, section 4B1.2(a) stated:
The term “crime of violence” means any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person
of another [“force clause”], or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.

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II. DISCUSSION
We review the district court’s denial of Mass’s § 2255 motion de novo. Moss v. United
States, 323 F.3d 445, 454 (6th Cir. 2003).
Putting aside other possible obstacles to Mass’s petition,4 we conclude that the district court
correctly determined that Mass’s 1993 California assault conviction qualifies as a “crime of
violence” under the Guidelines’ force clause.
Mass was convicted of violating California Penal Code § 245(a)(1), which at the time of
his conviction criminalized “[a]ny person who commits an assault upon the person of another with
a deadly weapon or instrument other than a firearm or by any means of force likely to produce
great bodily injury.” Because all agree that § 245(a)(1) is not divisible, we apply the “categorical
approach,” Descamps v. United States, 570 U.S. 254, 260 (2013), meaning that we look only to
the elements of the offense’s statutory definition—not the facts underlying the conviction—to
determine whether the offense is a crime of violence. Taylor v. United States, 495 U.S. 575, 600
(1990). Thus, we ask whether § 245(a)(1) necessarily includes “as an element the use, attempted
use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1).
As the Supreme Court has explained, “physical force” means “violent force—that is, force capable
of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140
(2010) (“Johnson I”).
Section 245(a)(1), reframed as elements, requires (1) an assault either (2)(a) with a deadly
weapon or instrument other than a firearm or (2)(b) by any other means of force likely to produce
great bodily injury. Apparently conceding that a (2)(b) assault necessarily entails violent force,
4 See Raybon v. United States, 867 F.3d 625 (6th Cir. 2017) and Potter v. United States, 887 F.3d 785 (6th
Cir. 2018).

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Mass focuses only on the (2)(a) assault-with-a-deadly-weapon variant and argues that because
under California law assault can be satisfied by “the least touching,” People v. Rocha, 479 P.2d
372, 377 n.12 (Cal. 1971),5 his assault conviction is not categorically a crime of violence because
it can be committed with any type of force, not solely violent force. (Appellant’s Br. at 15-19).
We disagree.
In United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009), the Ninth Circuit held that a
conviction under § 245(a)(1) is a crime of violence under the force clause. Id. at 1191-92. The
court reasoned that although the assault element requires only “the least touching,” which does not
implicate the sort of “physical force” contemplated by the Guidelines, “even the least touching
with a deadly weapon or instrument is violent in nature.” Id. at 1192. To be sure, Grajeda predated
the Supreme Court’s decision in Johnson I, which defined “physical force” as “violent force—that
is, force capable of causing physical pain or injury to another person.” 559 U.S. at 140. But the
Ninth Circuit has continued to adhere to Grajeda’s reasoning after Johnson I. See, e.g., United
States v. Orozco-Madrigal, 698 F. App’x 483, 483 (9th Cir. 2017) (mem.), cert. denied, 138 S. Ct.
982, 200 L. Ed. 2d 261 (2018). That is unsurprising given that Grajeda already accounted for
Johnson I’s requirement that the force threatened, used, or attempted be “violent,” 559 U.S. at 140,
when it held that “even the least touching with a deadly weapon . . . is violent in nature,” Grajeda,
581 F.3d at 1191 (emphasis added). While we are not bound by Grajeda, we find it persuasive
and follow it here.
5 The applicable California statute defines assault as “an unlawful attempt, coupled with a present ability, to
commit a violent injury on the person of another.” Cal. Penal Code § 240 (1872). However, California courts have
further defined “violent” “to include any wrongful act committed by means of physical force against the person of
another,” and have consistently held that “the kind of physical force is immaterial.” People v. Whalen, 124 Cal. App.
2d 713, 720 (1954).

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Although we agree with Mass that simple assault under California law would not satisfy
the force clause because it can be accomplished by a slight touch, we are satisfied that the variant
of § 245(a)(1) at issue here satisfies the Guidelines’ “crime of violence” definition because it
contains the additional element of “a deadly weapon.” See United States v. Harris, 853 F.3d 318,
321-22 (6th Cir. 2017) (“The categorical approach doesn’t require that each element of an offense
involve use of force; it requires that the offense overall include use of violent force. Michigan
felonious assault involves violent force because it proscribes not common law assault but common
law assault with a dangerous weapon.”).
As we have explained, “[n]ot every crime becomes a crime of violence when committed
with a deadly weapon,” but when a statute “ha[s] as an element some degree of, or the threat of,
physical force in the more general sense (such as ‘the least touching’),” “[t]he use of a deadly
weapon may exacerbate the threat of physical force” and “transform a lesser degree of force into
the necessary ‘violent force.’” United States v. Rede-Mendez, 680 F.3d 552, 558 (6th Cir. 2012).
Similarly, in United States v. Rafidi, 829 F.3d 437 (6th Cir. 2016), we explained in relation to 18
U.S.C. § 111, the federal-officer assault statute, that:
if a defendant commits a violation of § 111 through intentionally causing physical
contact with the federal officer—even if this physical contact is not in itself
“capable of causing physical pain or injury,” Johnson I []—§ 111(b)’s additional
required element of using a deadly weapon during this encounter would elevate this
lower degree of physical force into “violent force” sufficient to establish § 111(b)
as a “crime of violence.”
Id. at 446. See also Harris, 853 F.3d at 321 (“When a felony must be committed with a deadly
weapon and involves some degree or threat of physical force, it is a crime of violence under the
[force] clause.”); United States v. Taylor, 843 F.3d 1215, 1224-25 (10th Cir. 2016) (holding that a
conviction under an Oklahoma statute criminalizing assault and battery with a weapon capable of
causing death or great bodily harm is a crime of violence even though the amount of force

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necessary to constitute a simple assault or simple battery is “only the slightest force or touching”);
United States v. Whindleton, 797 F.3d 105, 114 (1st Cir. 2015) (holding that Massachusetts assault
with a dangerous weapon is a crime of violence because “the harm threatened by an assault is far
more violent than offensive touching when committed with a weapon that is designed to produce
or used in a way that is capable of producing serious bodily harm or death”).
Here, California assault with a deadly weapon threatens the use of “violent force” because
committing simple assault with a weapon “capable of producing . . . death or great bodily injury,”
People v. Aguilar, 945 P.2d 1204, 1207 (Cal. 1997) (citation omitted), has the potential to
“exacerbate the threat of physical force . . . already present in the underlying crime” of simple
assault. Rede-Mendez, 680 F.3d at 558. Thus, notwithstanding the minimal touching required for
the commission of a California simple assault, doing so with a deadly weapon or instrument
constitutes the use or threat of use of “violent force,” as required by Johnson I.
III. CONCLUSION
We AFFIRM the district court’s denial of Mass’s 28 U.S.C. § 2255 motion.

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