Petition for Writ of Certiorari — Adam Scott, Petitioner v. United States

APPENDIX

Index

Appendix A

United States v. Adam Scott,

Order, 3:12-cr-00051-RCJ-VPC, 2017 WL 58577

(D. Nev. Jan. 4, 2017)……..………………..………..………..APP 01

Appendix B

United States v. Adam Scott,

Order, 17-15106 (9th Cir. March 2, 2020)………………….APP 02

Case 3:12-cr-00051-RCJ-VPC Document 34 Filed 01/04/17 Page 1 of 4

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff,

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vs.

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ADAM SCOTT,

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Defendant.

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3:12-cr-00051-RCJ-VPC

ORDER

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A grand jury indicted Defendant Adam Scott of two counts each of assault with a

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dangerous weapon, 18 U.S.C. § 113(a)(3),1 and use of a firearm during and in relation to a crime

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of violence, 18 U.S.C. § 924(c)(1)(A), based on Scott having shot a firearm at several Indian

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victims (one of whom was struck in the abdomen) on the Fort McDermitt Indian Colony. (See

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Indictment, ECF No. 8). Defendant pled guilty to one charge under § 924(c)(1)(A) pursuant to a

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plea agreement, and the Court sentenced him to ten years imprisonment. (See J. 1–2, ECF No.

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30). Defendant did not appeal and in fact waived all appeals or collateral attacks, including

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habeas corpus motions under 28 U.S.C. § 2255, except claims of ineffective assistance of

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counsel. (See Plea Agreement 8, ECF No. 24). Defendant has now filed a habeas corpus motion

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under § 2255.

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As noted, the right to bring the present motion has been waived. Even if not waived,

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however, the claim would be without merit. Defendant argues the assault with a dangerous

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The Government used the word “deadly” in the Indictment, but the statute uses the word

“dangerous.”

APP 001

Case 3:12-cr-00051-RCJ-VPC Document 34 Filed 01/04/17 Page 2 of 4

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weapon charged in Count 1 that formed the basis for his conviction under Count 2 was not a

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“crime of violence” under 18 U.S.C. § 924(c)(3) because the residual clause defining “crime of

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violence” is similar to the residual clause of § 924(e)(2), which the Supreme Court has struck

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down as unconstitutionally vague. See Johnson v. United States (Johnson II), 135 S. Ct. 2551,

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2563 (2015). The definition of “crime of violence” applied to Defendant reads as follows, with

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the allegedly unconstitutionally vague residual clause emphasized:

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(3) For purposes of this subsection the term “crime of violence” means an offense

that is a felony and--

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(A) has as an element the use, attempted use, or threatened use of physical

force against the person of another, or

(B) that by its nature, involves a substantial risk that physical force against

the person or property of another may be used in the course of committing

the offense.

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18 U.S.C. § 924(c)(3)(A)–(B) (emphasis added). The definition of “violent felony” at issue in

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Johnson II reads as follows, with the unconstitutionally vague residual clause emphasized:

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(B) the 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--

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(i) has as an element the use, attempted use, or threatened use of physical

force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of physical injury to

another

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Id. § 924(e)(2)(B)(i)–(ii) (emphasis added). The language of the two clauses is not identical, but

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even assuming for the sake of argument that the difference in language is not enough to rescue

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§ 924(c)(3)(B) from constitutional infirmity, Johnson II is no aid to Defendant, because the

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physical-force clause of § 924(c)(3)(A) applies here.

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Assault with a dangerous weapon under § 113(a)(3) “has as an element the use, attempted

Page 2 of 4

APP 002

Case 3:12-cr-00051-RCJ-VPC Document 34 Filed 01/04/17 Page 3 of 4

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use, or threatened use of physical force against the person of another,” id. § 924(c)(3)(A), so long

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as by “assault” Congress meant what is meant under the common law. It did:

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Because § 113 does not define “assault,” we have adopted the common law

definitions: (1) “a willful attempt to inflict injury upon the person of another,” also

known as “an attempt to commit a battery,” or (2) “a threat to inflict injury upon the

person of another which, when coupled with an apparent present ability, causes a

reasonable apprehension of immediate bodily harm.”

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United States v. Lewellyn, 481 F.3d 695, 697 (9th Cir. 2007) (citing United States v. Juvenile

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Male, 930 F.2d 727, 728 (9th Cir. 1991); United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir.

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1976)). Either of these two ways of committing an assault under § 113(a)(3) qualifies as a crime

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of violence under § 924(c)(3)(A), because they include as elements the attempt or threat to inflict

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injury upon the person of another, respectively. A conviction under § 113(a)(3) also necessitates

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a threat of “violent” force, see Johnson v. United States (Johnson I), 559 U.S. 133, 140 (2010)

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(“We think it clear that . . . the phrase ‘physical force’ means violent force—that is, force capable

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of causing physical pain or injury to another person.”), because the threat must be made by means

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of a “dangerous weapon,” see 18 U.S.C. § 113(a)(3).

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Force with a “dangerous weapon” is force necessarily capable of causing physical pain or

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injury. The Courts of Appeals to address the issue have uniformly ruled that assault- or battery-

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type crimes containing a dangerous weapon-type element necessarily satisfy Johnson I’s

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requirement that any force used, attempted, or threatened be “violent.” See United States v.

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Whindleton, 797 F.3d 105, 111–16 (1st Cir. 2015); United States v. Ovalle-Chun, 815 F.3d 222,

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225–27 (5th Cir. 2016); United States v. Anderson, 695 F.3d 390, 399–401 (6th Cir. 2012);

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United States v. Vinton, 631 F.3d 476, 485–86 (8th Cir.), cert. denied, 132 S. Ct. 213 (2011);

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United States v. Taylor, --- F. 3d ----, 2016 WL 7187303, at *6 (10th Cir. 2016); Turner v.

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Warden Coleman FCI (Medium), 709 F.3d 1328, 1341 (11th Cir. 2013); United States v. Redrick,

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841 F.3d 478, 484 (D.C. Cir. 2016). Assault with a deadly weapon under § 113(a)(3) requires

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Page 3 of 4

APP 003

Case 3:12-cr-00051-RCJ-VPC Document 34 Filed 01/04/17 Page 4 of 4

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the assault to be committed “with” the deadly weapon; there can be no conviction simply because

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one is armed with a deadly weapon while committing a simple assault or battery not involving

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the weapon. Cf. United States v. Werle, 815 F.3d 614, 622 (9th Cir. 2016). Because the physical

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force clause applies to Defendant’s offense, and because the offense requires “violent” force,

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neither Johnson I nor Johnson II is any aid to Defendant.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motions to Vacate, Set Aside or Correct Sentence

Pursuant to 28 U.S.C. § 2255 (ECF Nos. 32, 33) are DENIED.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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IT IS SO ORDERED.

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Dated this

16th4,

day

of December, 2016.

January

2017.

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___________________________________

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__________

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_______________

ROBERT

RO

OBERT

T C. JJONES

ONES

ON

E

United States District

Dis

i ttrrict Judge

Judge

g

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Page 4 of 4

APP 004

Case: 17-15106, 03/02/2020, ID: 11615250, DktEntry: 8, Page 1 of 1

FILED

UNITED STATES COURT OF APPEALS

MAR 2 2020

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No.

17-15106

3:16-cv-00361-RCJ

3:12-cr-00051-RCJ-VPC

District of Nevada,

Reno

D.C. Nos.

ADAM SCOTT,

ORDER

Defendant-Appellant.

Before:

SILVERMAN and WATFORD, Circuit Judges.

The stay entered on July 25, 2019 (Docket Entry No. 7), is lifted.

The request for a certificate of appealability (Docket Entry No. 2) is denied

because appellant has not made a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537

U.S. 322, 327 (2003); United States v. Gobert, 943 F.3d 878 (9th Cir. 2019).

Any pending motions are denied as moot.

DENIED.

APP 005