APPLICATION FOR LEAVE TO FILE A SECOND OR SUCCESSIVE MOTION
UNDER 28 U.S.C. § 2255
R. Lange for petitioner.
R. Aframe, Assistant U.S. Attorney, with whom Scott W.
Murray, United States Attorney, was on brief, for respondent.
Lynch, Stahl, and Thompson, Circuit Judges.
Brown seeks permission to file a successive motion under 28
U.S.C. § 2255 to vacate her conviction and sentence for
possessing a destructive device "during and in relation
to" and "in furtherance of" a "crime of
violence," in violation of 18 U.S.C. § 924(c). 18
U.S.C. § 924(c)(1)(A). Brown hopes to argue in the
district court that the rule announced in Johnson
v. United States, 135 S.Ct. 2551 (2015),
and reiterated in Sessions v. Dimaya, 138 S.Ct. 1204
(2018), renders the definition of "crime of
violence" under which she was convicted and sentenced
void for vagueness under the Fifth Amendment's Due
Process Clause. We deny her application.
Brown and her husband staged a nine-month-long armed standoff
with federal law enforcement in 2007. United States marshals
sought to apprehend the Browns after their convictions for
tax evasion. Heavily armed with firearms, ammunition, and
explosives, including pipe bombs, the Browns locked
themselves in their New Hampshire house and announced, via
Internet radio, that the government lacked authority to
arrest them. The Browns threatened to kill law enforcement
who approached the house.
the standoff ended with the Browns' arrest, Elaine Brown
was indicted in the District of New Hampshire on six counts,
including: (1) conspiracy to prevent federal officers from
discharging their duties, in violation of 18 U.S.C. §
372; (2) conspiracy to assault, resist, or interfere with
federal officers, in violation of 18 U.S.C. § 371 and 18
U.S.C. § 111(a)(1); and (3) possession of a firearm or
destructive device during and in relation to and in
furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c). Section 924(c)(3) defines a "crime of
[A]n offense that is a felony and --
(A)has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(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.
18 U.S.C. § 924(c)(3).
Brown's trial in 2009, the jury was instructed that the
conspiracy counts were "crimes of violence." Here,
the parties agree that the predicates were found under §