United States v. Newman

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 8, 2023
• Docket: 23-3120
• Status: Unpublished

Opinion

Appellate Case: 23-3120 Document: 010110965272 Date Filed: 12/08/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 8, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-3120 (D.C. Nos. 2:22-CV-02386-JAR & NICHOLAS NEWMAN, 2:20-CR-20014-JAR-1) (D. Kan.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before MATHESON, BRISCOE, and EID, Circuit Judges. _________________________________

Appellant Nicholas Newman seeks a certificate of appealability (“COA”) to

appeal the district court’s denial of his motion to vacate, set aside, or correct his sentence

under 28 U.S.C. § 2255. For the reasons explained below, we deny Newman’s request for

a COA and dismiss this matter.

I

On May 19, 2021, Newman entered into a binding plea agreement pursuant to Fed.

R. Crim. P. 11(c)(1)(C) and pleaded guilty to one count of forcible assault of a federal

officer using a dangerous weapon in violation of 18 U.S.C. § 111(a)(1) and (b), and one

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-3120 Document: 010110965272 Date Filed: 12/08/2023 Page: 2

count of using, carrying, possessing, or brandishing a firearm in furtherance of a crime of

violence in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(c)(3)(A), and 2. These charges

stemmed from a gun sale to an undercover Alcohol, Tobacco, and Firearms agent during

which the agent suffered injuries to her hand when struggling for the gun with Newman.

The plea agreement included a waiver provision providing that Newman

“knowingly and voluntarily waive[d] any right to appeal or collaterally attack any matter

in connection with this prosecution, his conviction, or the components of the sentence to

be imposed herein,” except if the district court imposed a sentence exceeding the

recommendation by the parties under Rule 11(c)(1)(C). Aplt. App., Vol. I at 30.

However, Newman did not waive “any subsequent claims with regards to ineffective

assistance of counsel or prosecutorial misconduct.” Id.

In June 2021, one month after Newman entered a guilty plea, the Supreme Court

clarified that the term “crime of violence,” as used in 18 U.S.C. § 924(c), does not

encompass offenses with a mens rea of recklessness. See Borden v. United States, 141 S.

Ct. 1817, 1821–22 (2021) (interpreting 18 U.S.C. § 924(e)); see also United States v.

Kepler, 74 F.4th 1292, 1302 (10th Cir. 2023) (observing that 18 U.S.C. § 924(e) uses

“near-identical language” to define “violent felonies” as § 924(c)(3)(A) uses to define

“crimes of violence”).

On September 27, 2021, the district court sentenced Newman to 120 months on

the 18 U.S.C. § 111 count and 60 months on the 18 U.S.C. § 924(c) count, totaling 180

months of imprisonment.

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Exactly one year later, Newman moved under 28 U.S.C. § 2255 to vacate his 18

U.S.C. § 924(c) conviction and remand for an evidentiary hearing on his sentence.

Specifically, Newman asserted that he is actually innocent of his 18 U.S.C. § 924(c)

conviction because after Borden, 18 U.S.C. § 111(a)(1) and (b) are not crimes of violence

capable of supporting an 18 U.S.C. § 924(c) conviction. In response, the government

moved for enforcement of the collateral attack waiver provision in the plea agreement.

On April 28, 2023, the district court dismissed Newman’s motion and denied a

COA. In its ruling on the motion, the district court enforced the plea agreement’s

collateral attack waiver provision, concluding that (1) Newman’s actual innocence claim

fell within its scope, (2) he entered into the agreement knowingly and voluntarily, and

(3) enforcement of the waiver provision would not result in a miscarriage of justice. The

district court further determined that, irrespective of the waiver provision, Newman was

not actually innocent of violating 18 U.S.C. § 924(c) because 18 U.S.C. § 111(b)

qualifies as a predicate crime of violence.

Newman now requests a COA from this court in order to challenge the district

court’s denial of his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B). He seeks

to raise two arguments on appeal: (1) the collateral attack waiver provision in his plea

agreement is unenforceable because it violates the unconstitutional conditions doctrine,

or in the alternative, because its enforcement would result in a miscarriage of justice, and

(2) he is actually innocent of his 18 U.S.C. § 924(c) conviction because 18 U.S.C. § 111

does not qualify as a crime of violence. We note, his first argument regarding the alleged

unenforceability of his waiver was not raised before the district court. Arguments not

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raised before the district court are forfeited. Richison v. Ernest Grp., Inc., 634 F.3d 1123,

1127 (10th Cir. 2011).

II

We can grant a COA only upon “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). For constitutional claims denied on the

merits, the movant must show “that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). For claims denied on the basis of a procedural ruling, the movant must

show that reasonable jurists could debate the validity of the underlying constitutional

claim and the correctness of the district court’s procedural ruling. Id.

In order for us to reach the merits of Newman’s substantive claim for vacating his

sentence, he must prevail in his initial arguments challenging the enforceability of the

collateral attack waiver provision. However, if reasonable jurists could not disagree as to

the district court’s resolution of his claim of actual innocence, then it is immaterial

whether there is merit to his challenge to the waiver provision. Thus, our focus begins

with Newman’s assertion of actual innocence.

Newman argued before the district court that his conviction for violation of 18

U.S.C. § 111 does not qualify as a crime of violence which would support a conviction

under 18 U.S.C. § 924(c) because it can be committed with a mens rea of mere

recklessness. The statute at issue here, 18 U.S.C. § 924(c)(1)(A), enhances the sentence

of a person who uses or possesses a firearm while committing a crime of violence. The

statute defines “crime of violence” to include any federal felony that “has as an element

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the use, attempted use, or threatened use of physical force against the person or property

of another.” 18 U.S.C. § 924(c)(3)(A). This definition—in particular, the phrase “against

. . . another” when describing the use of physical force—requires a mens rea akin to

knowledge or intent. Borden, 141 S. Ct. at 1828. An offense that mandates only a mens

rea of recklessness does not qualify as a crime of violence. Id. at 1830.

For reference, Newman pleaded guilty to 18 U.S.C. § 111(b), a felony carrying a

maximum penalty of up to 20 years in prison. This subsection of the statute requires

proof of the use of a deadly or dangerous weapon or the infliction of bodily injury “in the

commission of any of the acts described in subsection (a).” 18 U.S.C. § 111(b).

Subsection (a) outlines a violation as occurring when an individual “forcibly assaults,

resists, opposes, impedes, intimidates, or interferes with any [officer or employee of the

United States] while engaged in or on account of the performance of official duties.” 18

U.S.C. § 111(a)(1).

The district court first determined that Newman violated 18 U.S.C. § 111(b)

because he used a dangerous weapon in the commission of a forcible assault on a federal

officer. The district court then concluded that under Tenth Circuit precedent, 18 U.S.C.

§ 111(b) remains a crime of violence after Borden and qualifies as predicate felony

offense for Newman’s 18 U.S.C. § 924(c) conviction.

Specifically, the district court relied on United States v. Kendall, 876 F.3d 1264

(10th Cir. 2017), to support its conclusion. Therein, we held that a conviction under 18

U.S.C. § 111(b) constitutes a crime of violence. Kendall, 876 F.3d at 1270 (interpreting

U.S.S.G. § 4B1.2, which uses near-identical language to 18 U.S.C. § 924(c)(3)(A)). In so

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holding, we explicitly stated that a “conviction under § 111(b) necessarily require[s] a

finding [that] [the defendant] intentionally used, attempted to use, or threatened to use

physical force against the person of another.” Id. (quoting United States v.

Hernandez-Hernandez, 817 F.3d 207, 217 (5th Cir. 2016)) (emphasis added). Contrary to

Newman’s assertions, as 18 U.S.C. § 111(b) requires a more culpable mens rea than mere

recklessness it satisfies Borden’s definition of a crime of violence.

We further note that at least two post-Borden decisions from our sister circuits

have held that 18 U.S.C. § 111(b) requires an intentional assault and, thus, qualifies as a

predicate crime of violence to sustain a conviction under 18 U.S.C. § 924(c). See, e.g.,

United States v. McDaniel, 85 F.4th 176, 186 (4th Cir. 2023); United States v. Medearis,

65 F.4th 981, 987 (8th Cir. 2023).

Given this authority, no reasonable jurist would debate the district court’s

dismissal of Newman’s 28 U.S.C. § 2255 motion with respect to his actual innocence

claim. As such, Newman’s arguments challenging the enforceability of the collateral

attack waiver provision are moot without an underlying justification for vacating, setting

aside, or correcting his sentence. Newman fails to meet his burden to obtain a COA on

either of the issues presented for appeal.

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III

We therefore DENY Newman’s request for a COA and dismiss this matter.

Entered for the Court

Mary Beck Briscoe Circuit Judge