Argued: September 18, 2019
from the United States District Court for the Middle District
of North Carolina, at Greensboro. William L. Osteen, Jr.
District Judge. (2:94-cr-00175-WO-1)
Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant.
Lee Driscoll, LAW OFFICE OF LEZA LEE DRISCOLL, PLLC, Raleigh,
North Carolina, for Appellee.
A. Benczkowski, Assistant Attorney General, Matthew S. Miner,
Deputy Assistant Attorney General, Criminal Division UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Matthew G.T.
Martin, United States Attorney, Angela H. Miller, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellant.
WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
WILKINSON, CIRCUIT JUDGE.
1995, a jury in the United States District Court for the
Middle District of North Carolina found appellee Jimmy Lee
Allred guilty of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court
sentenced him to 264 months in prison under the Armed Career
Criminal Act ("ACCA"), 18 U.S.C. 924(e). Just over
twenty years later, in 2016, Allred filed a motion pursuant
to 28 U.S.C. § 2255 protesting that his sentence was no
longer valid because his predicate conviction for retaliation
against a witness, see 18 U.S.C. § 1513(b)(1), did not
qualify as an ACCA violent felony in light of the Supreme
Court's decision in Samuel Johnson v. United
States, 135 S.Ct. 2551 (2015). The district court
granted relief and subsequently resentenced Allred to a term
of 120 months in prison with credit for time served. See
Allred v. United States, 2018 WL 1936481 (M.D. N.C.,
April 24, 2018); J.A. 143-49. Because we hold that causing
bodily injury to a witness under § 1513(b)(1) is
categorically a violent ACCA felony, we reverse the judgment.
16, 1994, Allred was arrested by local police outside a
restaurant in Greensboro, North Carolina. Earlier that
evening, a security guard at the restaurant had called the
police after he observed Allred enter the restaurant with the
outline of a firearm in his pants. When the police arrived,
Allred left the restaurant and proceeded to a vehicle driven
by a third party. As Allred entered the car, a police officer
saw him place a firearm under the passenger's seat. The
officer ordered both occupants out of the vehicle and, after
finding a Glock semi-automatic handgun under the seat, placed
Allred under arrest.
Because he was a convicted felon, Allred was charged in the
Middle District of North Carolina with one count of
possession of a firearm after a felony conviction in
violation of 18 U.S.C. § 922(g)(1). A jury found him
guilty on February 16, 1995.
a conviction under § 922(g) carries a statutory maximum
sentence of ten years in prison. See 18 U.S.C. §
924(a)(2). But if the defendant is considered an armed career
criminal under the ACCA, then he is subject to a mandatory
minimum sentence of fifteen years with a maximum of life
imprisonment. 18 U.S.C. § 924(e)(1); see also United
States v. Vann, 660 F.3d 771, 772 (4th Cir. 2011) (en
banc) (per curiam). A defendant is an armed career criminal
if he has three predicate convictions for either a
"violent felony or a serious drug offense."
Id. Allred's pre-sentence report listed three
such predicate convictions: (1) a 1986 North Carolina state
conviction for felony assault with a deadly weapon with
intent to kill inflicting serious injury, (2) a 1990 North
Carolina state conviction for felony possession with intent
to sell and deliver cocaine, and (3) a 1990 federal
conviction for retaliating against a witness in violation of
18 U.S.C. § 1513(b)(1).[*]Consequently, the district court
found Allred to be an armed career criminal and sentenced him
to 264 months in prison.
time of Allred's sentence, ACCA defined a "violent
felony" as "any crime punishable by imprisonment
for a term exceeding one year" that either (1) "has
as an element the use, attempted use, or threatened use of
physical force against the person of another," (2)
"is burglary, arson, or extortion, [or] involves [the]
use of explosives," or (3) "otherwise involves
conduct that presents a serious potential risk of physical
injury to another." 18 U.S.C. § 924(e)(2)(B). These
three provisions are often referred to as (1) the "force
clause," also known as the "elements clause;"
(2) the "enumerated clause;" and (3) the
"residual clause," respectively. See Stokeling
v. United States, 139 S.Ct. 544, 556 (2019). In
Samuel Johnson v. United States, the Supreme Court
held that the residual clause was unconstitutionally vague.
135 S.Ct. 2551, 2563 (2015). As a result, "the elements
clause and the enumerated clause are now the only channels by
which a prior conviction can qualify as an ACCA 'violent
felony.'" Stokeling, 139 S.Ct. at 556.
Supreme Court applied Samuel Johnson retroactively
to cases on collateral review in Welch v. United
States, 136 S.Ct. 1257 (2016). Allred thereafter filed a
motion pursuant to 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence. Because Allred had already
filed a § 2255 motion, he needed this court's
authorization to file a second or successive motion. Finding
that he had "made a prima facie showing that the new
rule of constitutional law announced in [Samuel
Johnson] . . . may apply to his case," we granted
Allred the requisite authorization on May 5, 2016, thus
permitting consideration of his motion by the district court.
claim for relief focused solely on his federal conviction for
witness retaliation under 18 U.S.C. § 1513(b)(1). In
pertinent part, § 1513(b)(1) makes it a felony
punishable by up to ten years in prison to "knowingly
engage in any conduct and thereby cause bodily injury to
another person or damage the tangible property of another
person, or threaten to do so, with intent to retaliate
against any person for" being a witness or party in
certain official proceedings. 18 U.S.C. § 1513(b)(1).
For the purposes of § 1513, "bodily injury" is
defined as "(A) a cut, abrasion, bruise, burn, or
disfigurement; (B) physical pain; (C) illness; (D) impairment
of the function of a bodily member, organ, or mental faculty;
or (E) any other injury to the body, no matter how
temporary." 18 U.S.C. § 1515(a)(5).
basis for Allred's § 2255 motion was that his
conviction under § 1513(b)(1) no longer qualifies as a
"violent felony" for ACCA purposes. Preliminarily,
he argued that federal witness retaliation does not fall
within the ambit of either the force or enumerated clauses.
And because the government could no longer rely on the
residual clause after Samuel Johnson, he concluded
that it simply cannot count as a predicate offense under
ACCA. Thus, Allred maintained that he has only two predicate
convictions and was not properly subject to the ACCA sentence
response to Allred's motion, the government conceded that
a conviction pursuant to § 1513(b)(1) cannot qualify as
an ACCA predicate under the enumerated clause or the residual
clause. But it nevertheless maintained that Allred's
sentence was valid ...