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United States v. Mjoness.

No. 20-8029.  D.Wyo. Judge McHugh. 18 USC § 875(c)—Crime of Violence—18 USC § 924(c)—Modified Categorical Approach—Elements versus Means.

July 12, 2021

Defendant sent a text message from Wyoming to North Dakota containing a threat to injure another person. The message included a picture of a firearm. Defendant admitted that he sent the text with the intent and knowledge it would be viewed as a threat and that he included the picture to make clear he would use the firearm as part of the threat.

A grand jury charged defendant with transporting a firearm in interstate commerce and several other charges, including two counts of transmitting in interstate commerce a communication containing a threat to injure another person in violation of 18 USC § 875(c); and using and carrying a firearm during and in relation to federal crimes of violence under 18 USC § 924(c)(1)(A)(i), with the 875(c) counts as the predicate crimes of violence. Defendant moved to dismiss the § 924(c) count, arguing that § 875(c) does not constitute a crime of violence under the categorical approach. The district court denied the motion, and defendant pleaded guilty to the § 924(c) count in return for the government’s dismissal of the other four counts. Defendant reserved the right to appeal the district court’s denial of his motion. The district court accepted the plea agreement and sentenced defendant to 60 months’ imprisonment.

Defendant argued on appeal that the § 924(c) count should have been dismissed because § 875(c) is indivisible, and a threat to kidnap can be accomplished by deception so it does not categorically require a threat of physical force. For purposes of § 924(c), a crime of violence is a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Section 875(c) criminalizes threats to kidnap as well as threats to injure. The Tenth Circuit determined that the alternatives in § 875(c) are elements of the statute of conviction rather than different means by which a defendant can commit the crime. Therefore, this statute is divisible, so the Tenth Circuit applied the modified categorical approach to determine whether a threat to injure in violation of § 875(c) is a crime of violence.

Here, application of the modified categorical approach clearly identifies defendant’s offense as an interstate threat to injure because defendant was charged with the threat to injure alternative, and the plea agreement and the factual basis provided at hearing identified the offense as an interstate threat to injure. A threat to injure another person necessarily involves threatening to use force capable of injuring another person. Defendant’s § 875(c) conviction was therefore a crime of violence and serves as a proper predicate crime to a violation of § 924(c).

The denial of defendant’s motion to dismiss was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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