FILED United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS July 6, 2021 Christopher M. Wolpert TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-3179 (D.C. Nos. 2:04-CR-20044-KHV ANDRE IVORY, and 2:20-CV-02156-KHV) (D. Kan.) Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.
Proceeding pro se,1 Mr. Andre Ivory requests a certificate of appealability
(“COA”) to appeal the district court’s denial of his second or successive 28 U.S.C. § 2255
motion. The sole authorized issue presented in Mr. Ivory’s § 2255 motion is whether his
conviction under 18 U.S.C. § 924(c) should be vacated in light of the Supreme Court’s
* This Order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because Mr. Ivory litigates this matter pro se, we construe his filings liberally but do not act as his advocate. See United States v. Parker, 720 F.3d 781, 784 n.1 (10th Cir. 2013) (citing Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008)).
1 decision in United States v. Davis, --- U.S. ----, 139 S. Ct. 2319 (2019). We deny Mr.
Ivory’s request for a COA and dismiss this matter.
I
Mr. Ivory was arrested on various drug charges in 2004 after an informant bought
crack cocaine from him. While in custody, Mr. Ivory orchestrated a plan to kill the
informant. Mr. Ivory’s co-conspirators recruited a would-be assassin. The hit failed: the
informant suffered severe injuries but survived.
In May 2005, a grand jury returned an 11-count superseding indictment. It
charged Mr. Ivory with conspiracy to distribute or possess with intent to distribute more
than 50 grams of cocaine base in violation of 21 U.S.C. § 846 (Count 1), distributing
cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii) (Counts 2 through
6), possessing with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(B)(iii) (Count 7), conspiracy to kill a federal witness in violation of 18 U.S.C.
§§ 371 and 1512(k) (Count 8), attempting to kill a witness in violation of 18 U.S.C. §§ 2
and 1512(a)(1)(A) (Count 10), and using, carrying, and discharging a firearm during and
in relation to the commission of a crime of violence in violation of 18 U.S.C. § 924(c)(1)
(Count 11). Mr. Ivory pleaded guilty to Counts 2 through 7. A jury later acquitted him of
Count 1, but found him guilty of Counts 8, 10, and 11. The jury was instructed that to
find Mr. Ivory guilty on Count 11, it had to find that he committed at least one of the two
2 predicate offenses—i.e., Count 8 or Count 10—and that a firearm was used, carried,
possessed, brandished or discharged in relation to at least one of those crimes.
In May 2006, the district court sentenced Mr. Ivory to 360 months’ imprisonment
on Counts 2 and 3, life in prison on each of Counts 4 through 7, and 240 months’
imprisonment on Counts 8 and 10. The court ordered these sentences to run concurrently
with each other. As to Count 11, the court sentenced Mr. Ivory to 120 months’
imprisonment and ordered that sentence to be served consecutively to his other terms of
imprisonment. We affirmed Mr. Ivory’s convictions and sentence. See United States v.
Ivory, 532 F.3d 1095 (10th Cir. 2008). In 2009, Mr. Ivory filed an unsuccessful § 2255
motion to vacate his sentence. But in December 2019, we authorized Mr. Ivory to file a
second or successive § 2255 motion to challenge his § 924(c) conviction and sentence
(Count 11) based on the Supreme Court’s decision in Davis, which struck down as
unconstitutionally vague subsection (3)(B) of § 924(c)—the so-called residual clause.
Mr. Ivory filed his second or successive § 2255 motion in March 2020. The
government conceded that, after Davis, conspiracy to kill a witness (Count 8) no longer
qualified as a § 924(c)(3) crime of violence. And Mr. Ivory made two arguments in his
§ 2255 motion for why his § 924(c) conviction should be vacated in light of Davis. First,
he argued that Count 10—attempting to kill a witness—also is not a crime of violence
under § 924(c)(3). And he reasoned accordingly that neither Count 8 (as the government
admitted) nor Count 10 could serve as a proper predicate offense for his § 924(c)
3 conviction.
Second, Mr. Ivory noted that the jury returned a general guilty verdict on Count
11; specifically, it did not indicate whether the predicate offense for the Count 11
conviction was the conspiracy to kill a witness (Count 8), the attempted killing of a
witness (Count 10), or both offenses. Mr. Ivory argued that because it was now
impossible to tell which predicate offense formed the basis for the jury’s guilty verdict as
to his § 924(c) offense and because a guilty verdict predicated on Count 8 would have
been—as the government itself admitted—legally erroneous, then the district court must
set aside the conviction to avoid the possibility that his Count 11 conviction rested on an
improper foundation.
In a July 2020 order, the district court rejected both arguments. On the first
argument, the court reasoned that the attempted killing of a witness (Count 10) falls
within an alternative definition of a crime of violence set out in the so-called elements
clause—that is, subsection (3)(A) of § 924(c). The court stated that the “attempt[]”
offense unquestionably “has as an element the use, attempted use, or threatened use of
physical force” against another. R., Vol. I, at 171 (Mem. and Order, filed July 8, 2020)
(emphasis added) (citing 18 U.S.C. § 924(c)(3)(A)). On the second argument, the district
court concluded that Mr. Ivory failed to show that including Count 8 as a potential
predicate offense for Count 11 had a “substantial and injurious effect or influence in
determining the jury’s verdict.” Id. at 172 (quoting Brecht v. Abrahamson, 507 U.S. 619,
4 638 (1993)).2 The court based its holding on the fact that the government presented the
same evidence—that is, testimony regarding a co-conspirator shooting the witness—for
both Count 8 and Count 10. Therefore, the court determined that it “cannot envision how
the jury could have concluded that the firearm had been discharged in connection with
only one of the two predicate offenses.” Id. at 173.
In its order dismissing Mr. Ivory’s § 2255 motion, the district court also declined
to grant Mr. Ivory a COA. Mr. Ivory has timely sought a COA from us to appeal the
district court’s dismissal of his authorized second or successive § 2255 motion.
II
We may grant a COA only if Mr. Ivory “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the COA inquiry “is
not coextensive with a merits analysis,” the “only question” at this stage “is whether the
applicant has shown that ‘jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.’” Buck v. Davis, --- U.S. ----,
137 S. Ct. 759, 773 (2017) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)). In
fact, if a court of appeals “first decid[es] the merits of an appeal, and then justif[ies] its
2 The district court accepted the government’s concession that, in light of Davis, Count 8 was not a § 924(c) crime of violence; however, it did not expressly rule on the matter.
5 denial of a COA based on its adjudication of the actual merits, it is in essence deciding an
appeal without jurisdiction.” Id. (quoting Miller-El, 537 U.S. at 336–37).
In his application for a COA, Mr. Ivory first contends that the attempted killing of
a witness, in violation of 18 U.S.C. § 1512(a)(1)(A), is not a “crime of violence” under
the elements clause of § 924(c)(3). And he also argues, second, that, even if the
attempted killing of a witness is a crime of violence, then we must still set aside his
§ 924(c) conviction because the general verdict that the jury returned did not stipulate
whether the predicate offense for the conviction was a conspiracy to kill a witness (Count
8), the attempt to kill a witness (Count 10), or both offenses.3
Neither one of Mr. Ivory’s arguments presents “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Reasonable jurists could not disagree
with the district court’s resolution of these two arguments or conclude that the arguments
raised issues that deserved encouragement to proceed further. We address each argument
in turn.
3 In his application for a COA, Mr. Ivory often claims that there was insufficient evidence to support his conviction for attempting to kill a witness in violation of 18 U.S.C. § 1512(a)(1)(A). See, e.g., Aplt.’s Br. at 4 (“There was insufficient evidence to support the intent element of the 18 U.S.C. [§§] 2 and 1512(a)(1)(A) conviction.”); id. at 7 (“[T]here was insufficient evidence for a conviction on Count[] 10.”). Mr. Ivory’s sufficiency-of-the-evidence arguments, however, are not properly within the scope of the present proceeding. Our court authorized Mr. Ivory to file a second or successive § 2255 motion only to challenge his § 924(c) conviction in light of Davis. Mr. Ivory’s contentions related to the sufficiency of the evidence to support his 18 U.S.C. § 1512(a)(1)(A) conviction are thus not properly before us in connection with this proceeding, and we will not address them further.
6 A
Mr. Ivory’s first argument relies heavily on our decision in United States v. Bowen,
936 F.3d 1091 (10th Cir. 2019). In Bowen, we faced the issue of whether witness
retaliation under 18 U.S.C. § 1513(b)(2)—a different statute than the one at issue
here—was a § 924(c) crime of violence. We noted that § 1513(b)(2) criminalizes any
witness retaliation that “causes bodily injury to another person or damages the tangible
property of another person.” Bowen, 936 F.3d at 1102. We then observed—citing to
Moncrieffe v. Holder, 569 U.S. 184 (2013)—that “we must presume that Bowen’s witness
retaliation convictions rested upon the least of the acts criminalized” under § 1513(b)(2),
i.e., damage to another person’s tangible property. Id. at 1102–03. We concluded that
damage to tangible property does not categorically entail the kind of “physical force”
required under § 924(c)(3)(A) (i.e., the elements clause), and that therefore “witness
retaliation under 18 U.S.C. § 1513(b)(2) [is not a crime of violence under that clause
because it] does not ‘ha[ve] as an element the use, attempted use, or threatened use of
physical force against the person or property of another.’” Id. at 1105 (quoting 18 U.S.C.
§ 924(c)(3)(A)).
Construing Mr. Ivory’s brief liberally, he contends that we must presume—for
purposes of our § 924(c) inquiry—that his conviction for attempted killing of a witness
rested on the least of the acts criminalized under his statute of conviction. However, in
discerning such acts, Mr. Ivory looks not to § 1512(a)(1)(A) as his statute of conviction;
7 instead, he characterizes § 1512 as a whole as his statute of conviction. He latches onto
the title given to § 1512 in the U.S. Code: “Tampering with a witness, victim, or an
informant.” See, e.g., Aplt.’s Br. at 7 (referencing 18 U.S.C. § 1512 broadly as the
“Witness Tampering Statute”). And Mr. Ivory seems to reason that tampering with a
witness does not categorically entail the kind of “physical force” required under
§ 924(c)(3)(A) (i.e., the elements clause)—because, for example, § 1512(b) prohibits
witness tampering by way of “intimidation, threat[s], or corrupt[] persua[sion].” 18
U.S.C. § 1512(b). In short, Mr. Ivory suggests that we must presume that his Count 11
conviction was actually a conviction for the least of the acts criminalized by § 1512,
which enumerates many forms of witness tampering that (at least arguably) do not
categorically entail the use the requisite physical force. Mr. Ivory’s argument, however,
is misguided.
Bowen is indeed instructive—but not instructive in a manner that helps Mr. Ivory.
The decision actually bolsters our conclusion that reasonable jurists could not disagree
with the district court’s conclusion that attempted killing of a witness is a § 924(c) crime
of violence.
In Bowen, we presumed that Mr. Bowen’s witness retaliation convictions rested on
the least of the acts criminalized under § 1513(b)(2) and identified that conduct as
involving retaliation through damage to another person’s tangible property. In the course
of discerning the least of the acts, we “easily conclude[d] that witness retaliation through
8 bodily injury qualifies as a crime of violence under § 924(c)(3)’s elements clause.”
Bowen, 936 F.3d at 1103 (emphasis added). We noted that “physical force” in
§ 924(c)(3)(A) means “force capable of causing physical pain or injury to another
person.” Id. (quoting Johnson v. United States, 559 U.S. 133, 140 (2010)). And we
concluded that “a crime that requires knowingly causing or threatening to cause bodily
injury to another necessarily has as an element the use or threatened use o[f] [such]
physical force.” Id.
This reasoning of Bowen does not avail Mr. Ivory’s cause here. Suffice to say that,
if under Bowen, a crime of threatening to cause bodily injury to a witness satisfies the
elements clause of § 924(c) because it involves the requisite physical force, it follows
ineluctably that no reasonable jurist could disagree with the district court’s determination
that the attempted killing of a witness also satisfies the elements clause (which expressly
contemplates attempts) and meets the test of physical force.
Moreover, Mr. Ivory’s attempt to characterize § 1512, as a whole—and not, more
specifically, § 1512(a)(1)(A)—as his statute of conviction for purposes of determining the
least acts criminalized is wholly unpersuasive. The Supreme Court has explained that
when a single statute “contain[s] several different crimes, each described separately . . . a
court may determine which particular offense the [defendant] was convicted of by
examining the charging document and jury instructions, or in the case of a guilty plea, the
plea agreement, plea colloquy, or ‘some comparable judicial record of the factual basis
9 for the plea.’” Moncrieffe, 569 U.S. at 191 (quoting Nijhawan v. Holder, 557 U.S. 29, 35
(2009)).
And the language and structure of § 1512 make clear that it sets forth separate
crimes. See United States v. Banks, 884 F.3d 998, 1021–22 (10th Cir. 2018); accord
United States v. Mathis, 932 F.3d 242, 265 n.21 (4th Cir. 2019) (noting that § 1512 is
divisible); see also United States v. Edwards, 836 F.3d 831, 833 (7th Cir. 2016) (“The
Supreme Court recently clarified that a statute is considered divisible only if it creates
multiple offenses by setting forth alternative elements.” (citing United States v. Mathis, --
- U.S. ----, 136 S. Ct. 2243 (2016))). Further, the pertinent parts of the record leave no
doubt which of § 1512’s separate crimes Mr. Ivory was convicted of—attempt to kill a
witness, proscribed by § 1512(a)(1)(A). The operative superseding indictment explicitly
charged Mr. Ivory in Count 10 with violating § 1512(a)(1)(A); it did not refer generally to
§ 1512. See Dist. Ct. Doc. 213 at 12–13 (Third Superseding Indictment, filed May 26,
2005).4 And the jury instruction concerning Count 10 likewise unambiguously stated that
Mr. Ivory was charged with violating § 1512(a)(1)(A). See Dist. Ct. Doc. 370 at 47
4 As we are permitted to do in circumstances such as these, we take judicial notice of records in the district court’s files pertaining to Mr. Ivory’s criminal case. See, e.g., United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (“Although we are not obliged to do so, we may exercise our discretion to take judicial notice of publicly-filed records in our court and certain other courts concerning matters that bear directly upon the disposition of the case at hand.” (citing St. Louis Baptist Temple v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979))).
10 (Instr. to the Jury, filed Dec. 13, 2005) (Instr. 35).
Therefore, insofar as Mr. Ivory advances this least-acts-criminalized argument
with the aim of undercutting the district court’s conclusion that the offense charged in
Count 10 satisfies the elements clause—and, consequently, is a crime of violence—his
efforts are in vain. No jurist of reason could disagree with the district court’s
determination that the attempted killing of a witness is a crime of violence under the
elements clause of § 924(c).
B
Mr. Ivory’s second argument likewise does not make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Ivory correctly notes that
the jury returned a general guilty verdict on his § 924(c) conviction; it did not specifically
find whether the predicate offense was conspiracy to kill a witness (Count 8), attempted
killing of a witness (Count 10), or both offenses. Before the district court, the
government conceded that, in light of Davis, Count 8 is not a valid predicate offense for a
§ 924(c) conviction. For purposes of our analysis, even if we assume that the government
is correct about this,5 Mr. Ivory still fails to show that the erroneous inclusion of Count 8
5 Although we have stated that “conspiring to retaliate against a witness [under a separate statute, § 1513(b)(2)] does not qualify as a crime of violence under § 924(c)(3)(A),” Bowen, 936 F.3d at 105 n.9, we have no binding precedent holding that conspiracy to kill a federal witness under § 1512(k) (i.e., Count 8) is not a crime of violence. By virtue of its concession, the government has effectively agreed with Mr. Ivory’s position that such a conspiracy is not a crime of violence. Due to the parties’ agreement on this matter, like the district court, we decline to definitively opine ourselves
11 as a possible predict offense for Count 11 had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht, 507 U.S. at 638.6
No reasonable jurist could disagree with the district court’s determination that the
jury could not have concluded “that the firearm had been discharged in connection with
only one of the two predicate offenses,” e.g., that it had been discharged only in
connection with (what we assume to be an improper predicate offense) Count 8—and not
also Count 10. R., Vol. I, at 173. As the district court reasoned, the government relied on
the same evidence to establish the discharge of the firearm for both Count 8 and Count
10. Therefore, in light of the evidence before it, the jury’s guilty verdict for the § 924(c)
offense necessarily rested on a finding that both Count 8 and Count 10 were crimes of
on it. That is, for purposes of resolving this appeal, we rely upon the parties’ agreement that conspiracy to kill a witness (i.e., Count 8) is not a § 924(c) crime of violence. 6 We note that the applicable standard of review is different when considering a direct appeal involving a preserved error pertaining to jury instructions that permit a conviction on alternative theories—where one is valid and the other is not. In that context, a general verdict must be set aside when “it is impossible to tell which ground the jury selected.” United States v. Samora, 954 F.3d 1286, 1295 (10th Cir. 2020) (quoting Yates v. United States, 354 U.S. 298, 312 (1957)). “[R]eversal is required for constitutional error unless the error was ‘harmless beyond a reasonable doubt.’” Malone v. Carpenter, 911 F.3d 1022, 1029 (10th Cir. 2018) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). However, on habeas review, “constitutional error may be disregarded unless found to have ‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Underwood v. Royal, 894 F.3d 1154, 1175 (10th Cir. 2018) (emphasis added) (quoting Brecht, 507 U.S. at 638). Mr. Ivory occasionally invokes the direct-appeal standard instead of the habeas-review standard. See, e.g., Aplt.’s Br. at 6 (citing a direct appeal case, United States v. Rosemond, 695 F.3d 1151, 1154 (10th Cir. 2012)). Here, we apply the standard appropriate in this habeas setting—that is, “the less-onerous Brecht standard.” Acosta v. Raemisch, 877 F.3d 918, 933 (10th Cir. 2017).
12 violence supporting the offense. In short, the jury’s verdict necessarily rested on at least
one offense that was properly characterized as a crime of violence (i.e., Count 10), and
(as relevant here) that was all that was required for the § 924(c) conviction to be legally
sound. Indeed, the district court’s jury instructions expressly said as much.
Mr. Ivory’s arguments to the contrary amount to no more than conclusory
allegations. See, e.g., Aplt.’s Br. at 11 (“[E]ven if one of the statutes in Count[s] 8 or 10
can be conc[ei]ved as a crime of violence, [Mr. Ivory’s] convictions and sentence must
still be vacated due to the jury’s general verdict of guilty, possibly using an invalid
alternative theory.” (emphasis added)). Indeed, Mr. Ivory’s contentions on this issue have
the effect of undercutting his assertion that the instructional error should lead to reversal.
For example, he states that the two “predicate crimes [i.e., Count 8 and Count 10] seem or
are inextricably intertwined. In other words, it is difficult to see how a jury would have
concluded that [Mr. Ivory] was guilty of using a firearm during and in furtherance of the
underlying attempt predicate [i.e., Count 10] without at the same time also concluding
that he did so during and in furtherance of the underlying [c]onspiracy and [a]iding and
[a]betting predicates [i.e., Count 8].” Id. at 6. Mr. Ivory draws from this line of
reasoning that his Count 11 conviction must be set aside. However, no reasonable jurist
would reach that conclusion.
In fact, Mr. Ivory’s reasoning is consistent with and supports a very similar
observation that the district court made regarding the intertwined nature of the offenses
13 charged in Counts 8 and 10. Yet, that observation led the district court to reach the
opposite conclusion than Mr. Ivory regarding the need for reversal—a conclusion that
reasonable jurists would not disagree with. Recall that the court found that the evidence
used to prove those two intertwined counts was the same and concluded that a reasonable
jury could not have predicated its § 924(c) guilty verdict on the Count 8 offense (which
we assume is not a crime of violence) without also predicating that verdict on the Count
10 offense (which we have shown is a crime of violence). And reasonable jurists could
not disagree with this reasoning or the district court’s ultimate conclusion.
In sum, we conclude that no reasonable jurist could be in “‘grave doubt’ about the
effect of the [assumed instructional] error on the jury’s verdict.” Bland v. Sirmons, 459
F.3d 999, 1009 (10th Cir. 2006) (quoting O’Neal v. McAninch, 513 U.S. 432, 435
(1995)). That is, they could not disagree with the district court’s conclusion that this
assumed error did not have a “substantial and injurious effect or influence in determining
the jury’s verdict” on Count 11. Brecht, 507 U.S. at 638.
14 III
For the foregoing reasons, we DENY Mr. Ivory’s request for a COA and
DISMISS this matter.
ENTERED FOR THE COURT
Jerome A. Holmes Circuit Judge