Ward v. USA
MEMORANDUM DECISION AND ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255). Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOSHUA ALLEN WARD,
Case No. 1:16-CV-00282-EJL
UNITED STATES OF AMERICA,
Pending before the Court in the above entitled matter is Petitioner Joshua Allen
Ward’s Motion to Vacate or Set Aside Sentence under 28 U.S.C. § 2255. (CIV Dkt. 1, CR
Dkt. 85.) This matter is fully briefed by the parties and ripe for decision.
Having fully reviewed the record, the Court finds that the facts and legal arguments
are adequately presented in the briefs and record. Accordingly, in the interest of avoiding
further delay, and because the Court conclusively finds that the decisional process would
not be significantly aided by oral argument, this matter shall be decided on the record
before this Court without oral argument. For the reasons set forth below, the Court denies
Mr. Ward was originally indicted for unlawful possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). (CR Dkt. 1). He was later convicted after a bench trial based on
stipulated facts. (CR Dkt. 53, 54, 55.)
MEMORANDUM DECISION AND ORDER - 1
Ordinarily, a violation of 18 U.S.C. § 922(g) carries a maximum sentence of ten
years. However, the Armed Career Criminal Act (“ACCA”) mandates a 15-year minimum
sentence for defendants who have three or more prior convictions for a serious drug offense
or a violent felony. 18 U.S.C. § 924(e).
During sentencing, Defendant objected to application of the ACCA as well as the
Court’s guideline computation. (CR Dkts. 61, 62, 74.) The Government argued for
application of the ACCA and in support of that argument offered into evidence the
judgments and charging documents relevant to the prior convictions. (CR Dkt. 64, 74.)
Ultimately, the Court Adopted the Presentence Investigation Report and found that
Defendant had four previous violent felonies. With application of the ACCA, the guideline
range applicable to Mr. Ward’s offense in light of his criminal history was 188 to 235
months in prison; two to five years supervised release; a fine of $15,000 to $150,000, and
a $100 special assessment. (CR Dkt. 74.) 1 Nevertheless, the Court sentenced Defendant
below the guidelines to the statutory minimum of 180 months in prison with an additional
five years supervised release and 120 hours of community service in lieu of a fine. (CR
Dkt. 74.) That sentence was subsequently amended to 157.5 months to account for time
served. (CR Dkt. 63, 68.)
At sentencing, Defendant argued that, without application of the ACCA, the
guideline range applicable to the offense would be 84 to 105 months. (CR Dkt. 74.)
MEMORANDUM DECISION AND ORDER - 2
On June 24, 2016, Mr. Ward filed a motion under 28 U.S.C. § 2255 to vacate, set
aside or correct his sentence on the basis that it was imposed in violation of the
Constitution. (CR Dkt. 85, CIV Dkt. 1.) More specifically, Mr. Ward argues that his
sentence must be vacated, because it was based on a finding that Mr. Ward was an armed
career criminal under the residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), and
that clause was deemed unconstitutional by the United States Supreme Court in Johnson v.
United States, 135 S.Ct. 2251 (2015) (“Johnson II”). Id. Mr. Ward argues that he does not
qualify as a career criminal under the ACCA if it is applied retroactively and in a
constitutional manner (i.e., without the residual clause). Id.
On July 13, 2016, the Court ordered briefing on the Defendant’s Petition. (CIV Dkt.
2.) The Government filed an Answer arguing the Defendant’s sentence is constitutional,
because Defendant has three previous convictions that constitute violent felonies pursuant
to the elements clause of the ACCA. (CIV Dkt. 7.) Defendant filed a Reply. (CIV Dkt. 8).
The Court has carefully reviewed this briefing and now takes up the Motion.
STANDARD OF REVIEW
This matter comes before the Court on Defendant/ Petitioner’s motion to vacate his
sentence because it was based on application of a statutory provision that, after his
sentencing, was declared unconstitutional. A prisoner serving a sentence imposed by a
federal court “may move the court which imposed the sentence to vacate, set aside, or
correct the sentence.” 28 U.S.C. § 2255(a). The permissible grounds for a motion brought
pursuant to 28 U.S.C. § 2255 are “that the sentence was imposed in violation of the
MEMORANDUM DECISION AND ORDER - 3
Constitution or laws of the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Relief under 28
U.S.C. § 2255 should only be granted where the claimed error is “a fundamental defect
which inherently results in a complete miscarriage of justice” and presents “exceptional
circumstances where the need for the remedy afforded by the writ of habeas corpus is
apparent.” Davis v. U.S., 417 U.S. 333, 346 (1974) (quoting Hill v. U.S., 368 U.S. 424, 428
Mr. Ward was sentenced after being found guilty of unlawful possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). Under the ACCA, a person who violates 18
U.S.C. § 922(g) and “has three previous convictions by any court . . . for a violent felony
or a serious drug offense, or both, committed on occasions different from one another” is
subject to a mandatory minimum sentence of 15 years. 18 U.S.C. § 924(e)(1).
At sentencing the Court found Mr. Ward had four previous convictions each of
which constituted a “violent felony.” The ACCA defines “violent felony” as follows:
[T]he term ‘violent felony’ means any crime punishable by
imprisonment for a term exceeding one year, or any act of
juvenile delinquency involving the use or carrying of a firearm,
knife, or destructive device that would be punishable by
imprisonment for such term if committed by an adult, that-(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another [the elements clause]; or
MEMORANDUM DECISION AND ORDER - 4
(ii) is burglary, arson, or extortion, involves use of
explosives [the enumerated offenses clause], or
otherwise involves conduct that presents a serious
potential risk of physical injury to another [the residual
18 U.S.C. § 924(e)(2)(B). Courts divide this definition into three categories: (1) the
elements clause; (2) the enumerated offenses clause; and (3) the residual clause.
In 2015, the United States Supreme Court held that the residual clause was
unconstitutional under the void-for-vagueness doctrine. Johnson II, 135 S.Ct. at 2560. The
void-for-vagueness doctrine prohibits the government from imposing sanctions “under a
criminal law so vague that it fails to give ordinary people fair notice of the conduct it
punishes or so standardless that it invites arbitrary enforcement.” Id. at 2556.
In 2016, the United States Supreme Court determined that the Johnson II decision
should have a retroactive effect. Welch v. U.S., 136 S.Ct. 1257, 1265. Thus, defendants
sentenced pursuant to the residual clause can collaterally attack their sentences as
unconstitutional under Section 2255. Id.
Because the residual clause has been deemed unconstitutional, only those offenses
that meet the elements clause or enumerated offenses clause can satisfy Section 924(e). In
this case, the parties agree that the enumerated offenses clause does not apply. Instead, the
Court must determine whether Mr. Ward’s prior convictions meet the elements clause. In
other words, the Court must determine whether Mr. Marsh’s previous convictions
MEMORANDUM DECISION AND ORDER - 5
necessarily required “as an element the use, attempted use, or threatened use of physical
force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).
“The meaning of ‘physical force’ is a question of federal law.” Johnson v. U.S., 130
S. Ct. 1265, 1269 (2010) (Johnson I). Under federal law, “‘physical force’ means violent
force- that is, force capable of causing physical pain or injury to another person.” Id. at
To determine whether a prior conviction constitutes a crime of violence, courts
generally apply the “formal categorical approach” established in Taylor v. U.S., 110 S. Ct.
2143 (1990). Under the categorical approach, “sentencing courts compare the elements of
the statute of conviction with a federal definition of the crime to determine whether conduct
proscribed by the statute is broader than the generic federal definition.” United States v.
Caceres-Olla, 738 F.3d 1051, 1054 (9th Cir. 2013) (internal quotation marks omitted). “If
the statute of conviction ‘sweeps more broadly than the generic crime, a conviction under
that law cannot count as [a qualifying] predicate, even if the defendant actually committed
the offense in its generic form.” Id. (quoting Descamps v. U.S., 113 S.Ct. 2276, 2283
(2013)). The sentencing courts are generally precluded from considering information other
than the fact of the conviction, respective elements of the crime of conviction, and the
generic federal crime. Descamps, 133 S. Ct. at 2283.
When, however, the statute of conviction “lists multiple, alternative elements, and
so effectively creates several different . . . crimes” the statute is deemed “divisible.” Id. If
the statute is divisible, the Court will apply a “modified categorical approach” and “look
MEMORANDUM DECISION AND ORDER - 6
beyond the statutory elements to the charging paper and jury instructions to determine
whether the defendant’s conviction necessarily involved facts corresponding to the generic
federal offense.” Caceres-Olla, 738 F.3d at 1054, n. 2. Then the Court can “do what the
categorical approach demands: compare the elements of the crime of conviction (including
the alternative element used in the case) with the elements of the generic crime.” Descamps,
133 S.Ct. at 2281.
The Government concedes that two of Mr. Ward’s previous convictions for burglary
in violation of Minnesota Statute § 609.582.2A do not constitute violent felonies. However,
the Government argues that three other previous convictions are violent felonies pursuant
to the elements clause of the ACCA: (1) a 2002 conviction for aid and abet robbery in
violation of Minnesota Statutes §§ 609.24, 609.05.1; (2) a 2002 conviction for assault in
the second degree- dangerous weapon in violation of Minnesota Statute § 609.222.1; and
(3) a 2007 conviction for aggravated assault with use of a firearm or deadly weapon in
violation of Idaho Code §§ 18-1901(b), 905(a) and 19-2520.
Mr. Ward’s Aid and Abet Robbery Conviction from Minnesota is a Violent
In 2002 Mr. Ward was convicted of aid and abet robbery in violation of Minnesota
Statutes §§ 609.24, 609.05.1. 1 As described below, this conviction constitutes a crime of
violence within the meaning of the ACCA.
Minnesota Statute Section 609.05.01 describes aid and abet liability: “A person is criminally
liable for a crime committed by another if the person intentionally aids, advises, hires, counsels,
or conspires with or otherwise procures the other to commit the crime.”
MEMORANDUM DECISION AND ORDER - 7
Minnesota Statute Section 609.24 defines “[s]imple robbery” as follows:
Whoever having knowledge of not being entitled thereto, takes
personal property from the person or in the presence of another
and uses or threatens the imminent use of force against any
person to overcome the person's resistance or powers of
resistance to, or to compel acquiescence in, the taking or
carrying away of the property is guilty of robbery and may be
sentenced to imprisonment for not more than ten years or to
payment of a fine of not more than $20,000, or both.
Minn. Stat. § 609.24 (emphasis added). Thus, the use or threatened use of force is an
element of the crime. Id. Further, to be convicted of “simple robbery,” the use or threat of
force must be sufficient to “overcome the person’s resistance or powers of resistance to, or
to compel acquiescence in, the taking or carrying away of the property.” Id.
Minnesota case law makes clear that the degree of force required to establish simple
robbery is violent, physical force, or the threat thereof. More specifically, under Minnesota
law, fifth-degree assault is a lesser-included offense of simple robbery. State v. Stanifer,
382 N.W.2d 213, 218-19 (Minn. Ct. App. 1986). “[P]roof of the ‘use or threatened
imminent use of force against a person’ in a prosecution for simple robbery necessarily
proves a fifth-degree assault, as that crime is statutorily defined.” Id. at 220.
Fifth degree assault requires that the perpetrator either: “(1) commits an act with
intent to cause fear in another of immediate bodily harm or death; or (2) intentionally
inflicts or attempts to inflict bodily harm upon another.” Minn. Stat. § 609.224.1. “Bodily
harm” is further defined by statute as “physical pain or injury, illness, or any impairment
of physical condition.” Minn. Stat. § 609.02.7.
MEMORANDUM DECISION AND ORDER - 8
Thus, in Minnesota, “simply robbery” necessarily includes as an element of the
offense the intentional use, attempted use, or threatened use of physical force capable of
causing physical pain or injury to another person and sufficient to “overcome the person's
resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying
away of the property.” Accordingly, the Minnesota criminal offense of “simple robbery”
is a violent felony within the meaning of the ACCA.
Defendant argues that the Minnesota conviction for simple robbery does not rise to
the level of a violent felony for two primary reasons: (1) Minnesota robbery can be
committed with a degree of force that does not constitute violent physical force and (2) the
crime does not require the intentional use of force. (Dkt. 1, p. 16.) These arguments are
addressed in turn below.
The Degree of Force Required under Minnesota’s Simple Robbery
Statute is Violent Physical Force.
Defendant argues that the Minnesota simple robbery statute requires nothing more
than de minimus force and, therefore, does not qualify as a crime of violence as a matter of
law. In support of this argument, Defendant primarily relies on four Minnesota cases: State
v. O’Neil, 73 N.W. 1091 (Minn. 1898); Duluth St. Ry Co. v. Fidelity & Deposit Co. of
Maryland, 161 N.W. 595, 596 (Minn. 1917); State v. Slaughter, 691 N.W.2d 70, 76 (Minn.
2005); and State v. Burrell, 506 N.W.2d 34 (Minn. Ct. App. 1993). The Court has
considered this case law and is not persuaded by Defendant’s arguments.
MEMORANDUM DECISION AND ORDER - 9
First, the O’Neil decision was issued in 1898 under a different statute. At that time,
simple robbery could be accomplished by either force or violence:
the unlawful taking of personal property, from the person or
in the presence of another, against his will, by means of force,
or violence or fear of injury, immediate or future, to his
person or property, or the person or property of a relative or
member of his family, or of any one in his company at the time
of the robbery.
73 N.W. at 1091 (citing Minn. Stat. § 6478 (1894)) (emphasis added). Further, at that time,
pursuant to statute, the degree of force employed was immaterial provided force was used
in order to “obtain or retain possession of the property, or to prevent or overcome resistance
to the taking.” Id. (citing Minn. Stat. §§ 6479, 6480 (1894)).
In contrast, the current statute does not distinguish between force or violence.
Instead, it conflates the two by incorporating the elements of fifth degree assault in the
definition of force. This definition requires the use or threatened use of violent force in
terms of bodily harm.
Second, the Duluth Street Railway case does indeed hold that the degree of force
used to accomplish robbery was immaterial so long as force was used to relieve another of
his possessions. Duluth St. Ry. Co. v. Fidelity & Deposit Co. of Maryland, 161 N.W. at 596
(holding pushing or grabbing a person during theft may constitute simple robbery).
However, the 1917 case is distinguishable, because: (1) it is a civil case, (2) the term
“robbery” was defined in terms of an insurance policy, and (3) the criminal statutes
consulted in defining the term are no longer in effect. Id. at 301-02 (citing Minn. Stat. §
8635 (1913)). By its own terms, the decision limits its scope and application: “[f]or
MEMORANDUM DECISION AND ORDER - 10
purposes of this case the trial court’s definition of robbery was right.” Id. at 301. Moreover,
the decision is based on rules of construction applicable to insurance contracts that require
the Court to define the term “robbery” as broadly as possible and in favor of coverage. Id.
at 303 (“Yet defendant prepared this policy. Words of doubtful meaning must be
constructed strongly against it.”) Accordingly, the Court gives the Duluth Street Railway
case little probative value, especially in light of the Stanifer decision from 1986 applying
the current criminal statute in effect.
Third, the Slaughter case holds that grabbing a necklace from someone’s neck in
such a way as to create scratches that felt like “skin burn” according to the victim is
sufficient to constitute “bodily harm” and thus, the use of force necessary to support a
simple robbery conviction. State v. Slaughter, 691 N.W. 2d at 72, 76. In so finding, the
Minnesota Supreme Court also noted that “pushing or grabbing a person during [a] . . .
theft may constitute simple robbery.” Id. at 76 (citing State v. Nash, 339 N.W.2d 554, 557
Without a doubt, the Slaughter and Nash decisions, cause the Court to pause. These
Minnesota cases involve the least amount of force necessary to support a simple robbery
conviction in Minnesota. The issue is whether such force constitutes violent physical force
within the meaning of the ACCA. See Johnson I. The Court has to find that it does.
Consistent with Johnson I, tearing a necklace from someone’s neck and leaving a
mark and/or pushing or grabbing a person during a theft constitutes force “capable of
causing physical pain or injury to another person.” Id. at 1271. Moreover, such force is
sufficient “to inflict pain” such as “a slap in the face, for example.” Id. at 1272. Further,
MEMORANDUM DECISION AND ORDER - 11
under the plain language of the Minnesota robbery statute that the Defendant was convicted
of violating, the degree of force used or threatened to commit the crime must be sufficient
to overcome the victim’s control over the property. Accordingly, the Court finds that even
the minimum degree of force required to sustain a simple robbery conviction in Minnesota
is sufficient to meet the federal definition of violent physical force.
Fourth, Defendant argues that the Burrell decision is incompatible with the Stanifer
decision. (CIV Dkt. 8, p. 5). According to Defendant, the infliction of “bodily harm” is not
an element of simple robbery but is an aggravating element that transforms simple robbery
into aggravated robbery. Id.
In Burrell, the defendant argued that his conviction should be reduced from
aggravated robbery to simple robbery because the statutes impermissibly overlapped and
either could control the case. Burrell, 506 N.W.2d at 36. The Minnesota Court of Appeals
held that force alone is all that is required for simple robbery while aggravated robbery
requires bodily harm:
A reading of both statutes shows that the infliction of bodily
harm is a required element for aggravated robbery. In order to
establish bodily harm, there must be some evidence that the
victim was subjected to pain or injury. See State v. Johnson,
277 Minn. 230, 237, 152 N.W.2d 768, 773 (1967), cert. denied,
390 U.S. 990 (1968); Minn.Stat. § 609.02, subd. 7 (1990)
(bodily harm is “physical pain or injury, illness, or any
impairment of physical condition”). Mere force suffices for the
simple robbery statute. Since the statutes for simple robbery
and aggravated robbery are clear and describe different
behavior, they do not impermissibly overlap.
Id. at 37. In support of this argument, Defendant also cites to State v. Kvale, 302 N.W.2d
650 (Minn. 1981) (robbery involving infliction of bodily harm is aggravated robbery).
MEMORANDUM DECISION AND ORDER - 12
Again, the Court disagrees. The cases are not incompatible and Stanifer has been
applied consistently by Minnesota courts and was recently reaffirmed by the Minnesota
Court of Appeals in State v. Salim, 2017 WL 562499 (Minn. Ct. App. Feb. 13, 2017)
(“S]ince Stanifer was decided in 1986, it has not been called into question by any
subsequent decision of this court or the supreme court”).
It is beyond dispute that a simple robbery conviction in Minnesota requires the use
of force. The Court finds that the degree of force required to sustain such a conviction is
consistent with the federal definition of violent force. The degree of bodily harm actually
inflicted might elevate the crime to aggravated robbery but simple robbery is a crime of
violence within the meaning of the ACCA.
In support of this conclusion the Court notes that robbery without the use of any
force is a theft. Simple robbery in Minnesota requires more than a theft; it requires an
assaultive act. 2 See Stanifer, 385 N.W.2d at 220 (holding simple robbery is “basically a
theft accomplished by means of an assaultive act”). A theft becomes a robbery if the
perpetrator employs force to a degree necessary to relieve the victim of the property in an
“Theft occurs when a person ‘intentionally and without claim of right takes, uses, transfers,
conceals or retains possession of movable property of another without the other's consent and
with intent to deprive the owner permanently of possession of the property.’” State v.
McClenton, 781 N.W.2d 181, 187 (Minn. Ct. App. 2010) (citing Minn. Stat. § 609.52, subd. 2(1)
MEMORANDUM DECISION AND ORDER - 13
Finally, this Court recognizes that the Minnesota federal district court has issued
two decisions on either side of this legal issue. See United States v. Taylor, 2017 WL
506253, at * 5-7 (D. Minn. Feb. 7, 2017) (holding simple robbery is a predicate felony
under the ACCA); cf United States v. Pettis, 2016 WL 5107035, at *3 (D. Minn. Sept. 19,
2016) (holding simple robbery is not a predicate felony under the ACCA). The Court has
examined these decisions and finds the Taylor line of cases more compelling and betterreasoned in light of Stanifer as well as the Eight Circuit’s decisions in United States v.
Raymond, 778 F.3d 716, 717 (8th Cir. 2015); United States v. Johnson, 526 Fed.Appx. 708,
711 (8th Cir. 2013) (unpublished); United States v. Fogg, 836 F.3d 951, 956 (8th Cir.
2016); and United States v. Armstrong, 554 F.3d 1159, 1166 (8th Cir. 2009) (same). See
also United States v. Maxwell, 823 F.3d 1057, 1061 (7th Cir. 2016) (holding simple robbery
is crime of violence within meaning of United States Sentencing Guidelines).
As described in the Taylor decision, Minnesota courts have consistently required
force capable of causing physical pain or injury in order to commit simple robbery:
Cases finding that the use or threatened use of force was
insufficient illuminate the lower boundary of force required.
The Minnesota Supreme Court has held the following conduct
insufficient: mere purse snatching, unaccompanied by pushing
or shoving; closing in on a woman waiting at a bus stop and
reaching into her purse to grab money; and making vague
threats in the context of a drug transaction. See State v.
Slaughter, 691 N.W.2d 70, 76 (Minn. 2005); State v. Nash, 339
N.W.2d 554, 555 (Minn. 1983); State v. Moore, 295 N.W.2d
101, 102 (Minn. 1980).
Taylor, 2017 WL 2017 WL 506253, at *5. Further, “[n]o Minnesota court has held that
merely bumping, nudging, or ‘impacting,’ someone (or threatening to do so) is sufficient
MEMORANDUM DECISION AND ORDER - 14
to overcome that person's resistance.” Minnesota simple robbery requires that the
perpetrator intend his force to not only overcome resistance, but also have that effect.” Id.
In short, the Court concludes that the degree of force required for a simple robbery
conviction in Minnesota is sufficient to constitute violent physical force within the meaning
of federal law.
The Intentional Use of Force under Minnesota’s Simple Robbery Statute.
Defendant also argues that his Minnesota conviction for simple robbery does not
rise to the level of a violent felony under the ACCA because the crime does not require the
intentional use of force. (CIV Dkt. 1, p. 16.) Defendant argues that violent physical force
within the meaning of the ACCA requires the active employment of force in an intentional
manner, not simply reckless or negligent conduct that results in physical harm and the
Minnesota simple robbery conviction could be based on mere negligence or recklessness.
For the reasons set forth below, the Court does not agree.
Defendant relies upon a series of decisions beginning with Leocal v. Ashcroft to
argue that a crime of violence, as that term is used in federal law including the ACCA,
requires a specific intent or mens rea requirement. 543 U.S. 1 (2004). In Leocal, the United
States Supreme Court determined that drunk driving is not a crime of violence under 18
U.S.C. § 16, even if it is a felony under state law and results in severe bodily harm, because
the crime requires only a showing of negligence and not the intent to do violent physical
The statute at issue in the Leocal decision defines crime of violence consistent with
how it is defined in the elements clause of the ACCA. See 18 U.S.C. § 16; 18 U.S.C.
MEMORANDUM DECISION AND ORDER - 15
§924(e)(2)(B)(i). To qualify as a crime of violence, an offense must have “as an element
the use, attempted use, or threatened use of physical force against the person or property
of another.” Id. Examining this language, the United States Supreme Court held “[t]he key
phrase in § 16(a)- the ‘use ... of physical force against the person or property of another’most naturally suggests a higher degree of intent than negligent or merely accidental
conduct.” Leocal, 543 U.S. at 9.
Building on that reasoning, the Ninth Circuit has determined a crime that requires
only reckless or grossly negligent use of force does not qualify as a crime of violence.
Fernando-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (holding reckless
misconduct insufficient to qualify as crime of violence). “The bedrock principle of Leocal
is that to constitute a federal crime of violence an offense must involve the intentional use
of force against the person or property of another.” Id. (emphasis added).
Defendant argues that simple robbery in Minnesota does not require specific intent
in all instances, because simple robbery requires an assault and some assaults can be
effectuated via negligent or reckless conduct. (CIV Dkt. 1, pp. 16-18). In support of this
argument, Defendant relies on the Minnesota Supreme Court’s decision in State v. Fleck,
810 N.W.2d 303 (Minn. 2012).
The Fleck decision divides the Minnesota assault definition into two parts: “assaultfear” and “assault-harm.” Id. at 305. “[A]n act done with intent to cause fear in another of
immediate bodily harm or death” is referred to as “assault fear.” Id. “[T]he intentional
infliction of or attempt to inflict bodily harm upon another” is referred to as “assault harm.”
MEMORANDUM DECISION AND ORDER - 16
“Assault-fear” is a specific intent crime. Id. at 309-310. “the definition of assault
fear requires the State to prove the defendant committed an act with an additional special
mental element- specifically: ‘an act done with intent to cause fear in another of immediate
bodily harm or death.’” Id. at 309 (citing Minn. Stat. § 609.02, subd.10(1)). In contrast,
“assault-harm” is a general intent crime. Id. at 309-310. The Minnesota Supreme Court
explains this distinction as follows:
The Legislature defined assault-harm as ‘the intentional
infliction of . . . bodily harm upon another.’ Minn. Stat. §
609.02,subd.10(2). The forbidden act is a physical act, which
results in bodily harm to another. Although the definition of
assault-harm requires the State to prove the defendant intended
to do the physical act, nothing in the definition requires proof
that the defendant meant to violate the law or cause a particular
Id. at 309. To be convicted of assault-harm requires only proof that “the defendant intended
to do the physical act forbidden.” Id. at 310.
Defendant argues that his simple robbery conviction requires a theft plus an assault.
Because the assault can be accomplished through less than intentional conduct, simple
robbery does not qualify as a crime of violence under the ACCA.
The central problem with Defendant’s argument is that he was not convicted of
assault alone. He was convicted of simple robbery and to be convicted of robbery, the
defendant must appreciate “that he is not entitled to the property which he takes.” See State
v. Sandve, 156 N.W.2d 230, 231 (1968) (“one of the elements of the crime is knowledge
by the accused that he is not entitled to the property which he takes”). The whole point of
MEMORANDUM DECISION AND ORDER - 17
the crime is to overtake the victim’s control or possession of the property at issue with
knowledge that the property does not belong to the perpetrator.
In sum, the Court finds that Mr. Ward’s conviction for simple robbery in Minnesota,
as a matter of law, required proof of the intentional use of violent physical force. Therefore,
the simple robbery conviction is a violent felony within the meaning of the ACCA.
Mr. Ward’s Assault in the Second Degree-Dangerous Weapon Conviction from
Minnesota is a Violent Felony.
In 2002 Mr. Ward was convicted of assault in the second degree- dangerous weapon
in violation of Minnesota Statute § 609.222.1. As described below, this conviction
constitutes a second crime of violence within the meaning of the ACCA.
Minnesota Statute Section 209.222 is divided into two subdivisions. Mr. Ward was
convicted under subdivision one, which states, “Whoever assaults another with a dangerous
weapon may be sentenced to imprisonment for not more than seven years or to payment of
a fine of not more than $14,000, or both.” Minn. Stat. § 209.222.1. 3
Assault, as explained supra, requires the intentional use of force or the threatened
use of force. Minn. Stat. § 609.02, subd.10(1). “Dangerous weapon” is further defined as:
 any firearm, whether loaded or unloaded, or any device
designed as a weapon and capable of producing death or
great bodily harm,  any combustible or flammable liquid
or other device or instrumentality that, in the manner it is used
or intended to be used, is calculated or likely to produce
death or great bodily harm, or  any fire that is used to
produce death or great bodily harm.
Subdivision two requires both an assault and “substantial bodily harm” and leads to
greater penalties. Minn. Stat. § 209.222.2.
MEMORANDUM DECISION AND ORDER - 18
Minn. Stat. § 609.02.06 (emphasis added).
A plain reading of the Minnesota statute makes clear that second degree assault with
a dangerous weapon is a violent felony within the meaning of the ACCA. This crime
requires the use, attempted use, or threatened use of violent physical force against the
person of another. The Eighth Circuit and Minnesota federal district court uniformly agree
with this analysis of the statute. See United States v. Lindsay, 827 F.3d 733, 740 (8th Cir.
2016) (holding second-degree assault under Minn. Stat. § 609.222 qualifies as a violent
felony for ACCA purposes); United States v. Vargas, 2017 WL 1379325, at * 2 (D. Minn.
Apr. 14, 2017) (accord); United States v. Peters, 2016 WL 4926418, at * 3 (D. Minn. Sept.
15, 2016) (accord); United States v. Reese, 2016 WL 5477074 (D. Minn. Sept. 27, 2016).
Nevertheless, Defendant argues that the Minnesota conviction for second degree
assault with a dangerous weapon does not rise to the level of a violent felony because the
crime does not require the intentional use or threat of force. (Dkt. 1, pp. 18-19.) Again,
based on the Minnesota Supreme Court’s decision in Fleck, Defendant argues that
Minnesota second degree assault conviction requires only general intent to do the physical
act that leads to the harm but not the intent to cause harm and, thus, is categorically
overbroad because the conviction could be based on negligent or reckless conduct. Id.
The problem with that logic, again, is that this is not a simple assault conviction.
Defendant was convicted of second degree assault with a dangerous weapon. Thus, at a
minimum, he had to intend to possess the dangerous weapon. Further, he had to assault
someone, either through intentionally causing fear or actually harming them, while in
control of a dangerous weapon.
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Defendant also notes that a second degree assault conviction does not require harm
and, to the extent a victim is harmed, Minnesota does not require that the dangerous weapon
be used to inflict the harm. (CIV Dkt. 1, p. 18). This is because the aggravated assault
statute has two subdivisions. Both require an assault with a dangerous weapon. Subdivision
one does not require proof of actual harm and subdivision two requires “substantial bodily
harm.” Minn. Stat. § 209.222.
To the extent a victim is harmed under subdivision two, it is not necessary to prove
that the harm suffered was actually caused by the dangerous weapon. State v. Harlin, 771
N.W.2d 46, 50 (Minn. Ct. App. 2006) (“we hold that Minn. Stat. § 209.222, subd. 2, does
not require that the dangerous weapon be used to inflict the substantial bodily harm.”). It
is sufficient that a dangerous weapon was involved in an assault and the victim was injured.
However, it is undisputed that Defendant was convicted under subdivision one of
the statute. (CIV Dkt. 1, p. 18). Thus, there is no need to prove harm of any kind. The only
proof required is an assault with a deadly weapon.
Whether the assault was accomplished under the assault-fear or assault-harm
component of the Minnesota definition of assault, the Court finds Defendant’s aggravated
assault conviction from Minnesota is an intentional crime of violence within the meaning
of the ACCA. Under Minnesota law, assault-fear requires intent and while assault-harm
may not require intent on its own, it does when a deadly weapon is involved. Further, under
federal law, “even the ‘least touching’ with a deadly weapon or instrument . . . is violent in
nature and demonstrates at a minimum the threatened use of actual force.” United States v.
Grajeda, 581 F.3d 1186, 1192 (9th Cir. 2009).
MEMORANDUM DECISION AND ORDER - 20
Mr. Ward’s Aggravated Assault (with Use of a Firearm or Deadly Weapon)
Conviction from Idaho is a Violent Felony.
In 2007 Mr. Ward was convicted of aggravated assault with use of a firearm or
deadly weapon in violation of Idaho Code §§ 18-901(b), 905(a) and 19-2520. As described
below, this conviction constitutes a third crime of violence within the meaning of the
Idaho Code § 18-901 defines assault in two, alternative ways. First, Section 18901(a) defines assault as “[a]n unlawful attempt, coupled with apparent ability, to commit
violent injury on another.” I.C. § 18-901(a). Second, Section 18-901(b) defines assault as:
[a]n intentional, unlawful threat by word or act to do violence to the person of another,
coupled with an apparent ability to do so, and doing some act which creates a well-founded
fear in such other person that such violence is imminent.” I.C. § 18-901(b).
Idaho Code § 18-905 defines aggravated assault in three, alternative ways. All
require an assault accomplished either: (1) with a deadly weapon; (2) by means of force
likely to produce great bodily harm; or (3) [w]ith any vitriol, corrosive acid, or a caustic
chemical of any kind. I.C. §§ 18-905.
There is no dispute that Mr. Ward was convicted of aggravated assault with a deadly
weapon. Defendant argues that aggravated assault with use of a firearm or deadly weapon
does not constitute a violent felony because it can be committed without the intentional use
of force. (CIV Dkt. 1, p. 21).
Defendant’s argument focuses exclusively upon Idaho Code § 18-901(a) (the
“attempt prong”) of the assault statute. Id.at 21-22. Defendant argues that at the time of his
MEMORANDUM DECISION AND ORDER - 21
conviction, Idaho Supreme Court precedent, State v. Patterson, 88 P.2d 493 (Idaho 1939),
aggravated assault could be committed through conduct that requires mere criminal
Assuming arguendo that a conviction for aggravated assault with a deadly weapon
under Idaho Code § 18-901(a) could be accomplished without the requisite intent,
Defendant’s argument is unpersuasive. The Court finds Idaho’s assault statute is divisible
and, applying a modified categorical approach, it is clear that Defendant was convicted
under Idaho Code § 18-901(b), the assault-threat component of the statute. (Dkt. 64-1). It
is undisputed that such an assaultive act requires “an intent to make a threat and create
apprehension in the victim.” State v. Dudley, 55 P.3d 881 (2002).
Where, as here, a single statute lists multiple, alternative elements constituting, in
effect, two distinct crimes, the statute is deemed “divisible” and the Court applies a
modified categorical approach. See Mathis v. U.S., 136 S. Ct. 2243, 2249 (2016). “Under
that approach, a sentencing court looks to a limited class of documents (for example, the
indictment, jury instructions, or plea agreement and colloquy) to determine what crime,
with what elements, a defendant was convicted.” Id. The point of the exercise is for the
sentencing court to determine “which of the alternative elements listed . . . was integral to
the defendant’s conviction.” Id.
Defendant argues that Idaho Code § 18-901 is not divisible, because the two
subsections of the statute constitute alternate means by which the crime of assault may be
committed, not essential elements upon which a jury must agree. (CIV Dkt. 1, p. 27).
However, it is undisputed that the two means of accomplishing assault in Idaho require
MEMORANDUM DECISION AND ORDER - 22
different mens rea. Furthermore, I.C. § 18-901(a) requires proof of an unlawful attempt to
commit violent injury to another person while I.C. § 18-901(b) requires an intentional
threat to cause another bodily harm and an act that creates a fear that such harm is
imminent. Thus, the elements of proving assault via I.C. § 18-901(a) and § 18-901(b) are
different. See State v. McDougall, 749 P.2d 1025, 1028 (Idaho Ct. App. 1988) (referring to
I.C. § 18-901(a) and § 18-901(b) as different “form[s] of the crime”); State v. Dudley, 55
P.3d at 890-91 (Idaho Ct. App. 2002) (distinguishing between mens rea required by
assaults pursuant to I.C. § 18-901(a) and § 18-901(b)).
Because the Idaho assault statute is divisible, the Court may conduct a modifiedcategorical inquiry. In this case, the Idaho judgment makes clear that Mr. Ward was
convicted under Idaho Code Section 18-901(b). (Dkt. 64-1). This conviction requires proof
of intent and the use, attempted use, or threatened use of violent physical force against the
person of another. Thus, Defendant’s Idaho conviction for aggravated assault-deadly
weapon constitutes a violent felony within the meaning of the ACCA.
In sum, the Court has examined the legal, as opposed to factual, basis of Mr. Ward’s
three prior felony convictions and finds that each constitutes a violent felony within the
meaning of the ACCA as a matter of law. This finding is consistent with both Johnson I
and Johnson II.
An evidentiary hearing is unnecessary. A petitioner is entitled to an evidentiary
hearing “[u]nless the motion and the files and records of the case conclusively show that
[he] is entitled to no relief.” 28 U.S.C. § 2255(b).
MEMORANDUM DECISION AND ORDER - 23
Here, the issues before the Court are purely legal. The Court determined, as a matter
of law, that the underlying convictions constitute crimes of violence without regard to how
Mr. Ward might have actually committed the crimes. In short, there are no facts in dispute
and, having resolved the legal issues, the Court finds that Mr. Ward is not entitled to relief.
Therefore, no evidentiary hearing is required.
IT IS ORDERED that Petitioner’s Motion to Vacate or Set Aside Sentence (CIV
Dkt. 1, CR Dkt. 85) is DENIED.
DATED: May 18, 2017
Edward J. Lodge
United States District Judge
MEMORANDUM DECISION AND ORDER - 24
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