Menu icon Access the Business Officer Magazine menu by clicking or touching here.
Colorado Lawyer Magazine logo, click or touch this logo to return to the homepage Click or touch the Colorado Lawyer Magazine logo to return to the homepage. Search

United States v. Muskett

No. 17-2123. Judge McHugh. 28 USC § 2255 Motion to Vacate Federal Conviction—Crime of Violence—Assault with a Deadly Weapon—Categorical Approach—Fair Notice Challenge.

August 10, 2020


In 2013, pursuant to a plea agreement, defendant pleaded guilty under 18 USC § 924(c) to using, carrying, possessing, and brandishing a firearm in furtherance of a crime of violence. He was sentenced to an 84-month term of imprisonment.

Following the US Supreme Court decision in Johnson v. United States, 135 S.Ct. 2551 (2015), defendant filed a 28 USC § 2255 motion arguing that the residual clause in § 924(c) was materially indistinguishable from the clause invalidated in Johnson and thus unconstitutional. The court denied the motion and defendant filed a timely notice of appeal. While the appeal was pending, the US Supreme Court invalidated the residual clause in § 924(c) in United States v. Davis, 139 S.Ct. 2319 (2019).

Defendant contended on appeal that his conviction must be vacated based on Davis and by using the law as it existed at the time of his conviction, because application of current law would violate due process limits on the retroactive application of judicial decisions enlarging criminal liability. To prevail on appeal, defendant was required to establish that his conviction could not be sustained under § 924(c)’s elements clause. Under this clause, an offense is a crime of violence if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” To determine whether the commission of assault with a dangerous weapon qualifies under the elements clause, the Tenth Circuit applied the categorical approach to identify the minimum force required to commit the crime of assault with a dangerous weapon and determine if that force categorically fits the definition of physical force. The Tenth Circuit concluded that assault with a dangerous weapon is categorically a crime of violence under § 924(c)’s elements clause, and at the time of his offense, defendant had fair notice that § 924(c)’s elements clause could ultimately be construed to encompass his commission of assault with a dangerous weapon. As a result, the retroactive application of subsequent decisions clarifying the force requirement does not deprive defendant of his due process right to have fair notice of what the law proscribes.

The denial of the § 2255 motion 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.

Back to the From the Courts Page