“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Tenth Circuit judge Allison Eid denied a motion to vacate a conviction as a result of a U.S. Supreme Court decision which had found the definition of the crime of violence as unconstitutionally vague. The August 2020 decision was US v Muskett.

In 2013, Donovan Muskett was charged with four crimes. He entered into a plea agreement where he only pled guilty to using, carrying, possessing, and brandishing a firearm in furtherance of a crime of violence. The government agreed to dismiss the three remaining counts. In March 2014, the district court accepted Muskett’s plea deal and sentenced him to 84 months in jail followed by a three-year term of supervised release.

In June 2016, Muskett filed a motion to vacate his conviction because in 2015, the United States Supreme Court invalidated the residual clause in the definition of a “crime of violence” as unconstitutional and, as a result, he claimed,  none of the predicate, charges that had been dismissed,  including assault with a dangerous weapon, qualified as crimes of violence and, therefore,  his conviction could not be maintained.

Muskett’s motion was denied. The magistrate judge concluded that even if the statute’s residual clause was invalid, Muskett’s commission of assault with a dangerous weapon satisfied the elements clause.  Muskett objected, but in July 2017, the district judge overruled that objection and denied Muskett’s motion. He appealed to the Tenth Circuit.

In a 2-1 decision, the majority affirmed the district court’s ruling explaining that “precedent compels the conclusion that assault with a dangerous weapon is categorically a crime of violence under the elements clause” and at the time of his offense, Muskett had fair warning based on the statute’s elements clause that his prior offense could constitute a crime of violence. They went on to conclude that any defect in Muskett’s conviction was harmless.

Judge Robert Bacharach strongly dissented asserting that harmlessness must be evaluated by current law at the time. When Muskett committed his offense in 2013, this Court’s precedent “unequivocally prevented us from categorically treating assault with a dangerous weapon as a crime of violence.” Also at that time “three other circuits had held, as we had, that crimes of violence required the direct use of physical force.” Moreover, the Supreme Court held that the “residual clause was unconstitutionally vague, and vague laws don’t provide fair warning.”