USCA Case #23-3143 Document #2021595 Filed: 10/12/2023 Page 1 of 228
`Nos. 23-3143, 23-3146, 23-3147, 23-3156, 23-3158
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`_________________
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`UNITED STATES OF AMERICA,
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`Plaintiff-Appellee
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`
`v.
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`LAUREN HANDY, et al.,
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`Defendants-Appellants
`_________________
`
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`_________________
`
`
`UNITED STATES’ MEMORANDUM OF LAW AND FACT
`_________________
`
`MATTHEW M. GRAVES
` United States Attorney
`
`JOHN CRABB JR.
` Assistant United States Attorney
` United States Attorney’s Office
` District of Columbia
` 601 D Street NW
` Washington, D.C. 20001
` (202) 252-1794
`
`KRISTEN CLARKE
` Assistant Attorney General
`
`ERIN H. FLYNN
`JASON LEE
` Attorneys
` Department of Justice
` Civil Rights Division
` Appellate Section
` Ben Franklin Station
` P.O. Box 14403
` Washington, D.C. 20044-4403
` (202) 598-1317
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`(see inside cover for co-counsel)
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`USCA Case #23-3143 Document #2021595 Filed: 10/12/2023 Page 2 of 228
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`(continuation of counsel)
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`SANJAY H. PATEL
`Trial Attorney
`Department of Justice
`Civil Rights Division
`Criminal Section
`4 Constitution Square
`150 M Street NE, 7.121
`Washington, D.C. 20002
`(202) 307-6188
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`USCA Case #23-3143 Document #2021595 Filed: 10/12/2023 Page 3 of 228
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`D.C. CIRCUIT RULE 26.1(b) DISCLOSURE STATEMENT
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`There was no organizational victim of the alleged criminal activity.
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`s/ Jason Lee
`JASON LEE
` Attorney
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`Date: October 12, 2023
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`

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`USCA Case #23-3143 Document #2021595 Filed: 10/12/2023 Page 4 of 228
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`TABLE OF CONTENTS
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`PAGE
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`D.C. CIRCUIT RULE 26.1(b) DISCLOSURE STATEMENT
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`STATEMENT OF JURISDICTION......................................................................... 1
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`STATEMENT OF THE ISSUE ................................................................................ 2
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`STATUTORY BACKGROUND.............................................................................. 2
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`1.
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`2.
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`The Bail Reform Act ............................................................................. 2
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`The Freedom Of Access To Clinic Entrances Act (FACE Act) ............ 3
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`STATEMENT OF THE CASE ................................................................................. 4
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`SUMMARY OF ARGUMENT .............................................................................. 10
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`ARGUMENT
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`DEFENDANTS’ OFFENSE OF CONVICTION CATEGORICALLY
`CONSTITUTES A CRIME OF VIOLENCE............................................... 11
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`A.
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`B.
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`Standard Of Review ............................................................................ 11
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`The Modified Categorical Approach Applies Here ........................... 12
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`C. Defendants’ Offense Is A “Crime Of Violence” Under The
`Bail Reform Act, Thus Requiring Mandatory Detention.................... 14
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`D. Defendants Misread The Supreme Court’s Decision In
`Borden And Misunderstand The FACE Act ....................................... 17
`
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`E.
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`Defendants Identify No Error In The District Court’s Finding
`That The Exception To Presentence Detention Is Inapplicable ......... 23
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`CONCLUSION ....................................................................................................... 24
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`USCA Case #23-3143 Document #2021595 Filed: 10/12/2023 Page 5 of 228
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`TABLE OF CONTENTS (continued):
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`CERTIFICATE OF COMPLIANCE
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`ADDENDUM
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`- ii -
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`USCA Case #23-3143 Document #2021595 Filed: 10/12/2023 Page 6 of 228
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`TABLE OF AUTHORITIES
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`CASES:
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`PAGE
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`Borden v. United States, 141 S. Ct. 1817 (2021) ................................... 11-12, 18-21
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`Johnson v. United States, 559 U.S. 133 (2010) ................................................. 13-16
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`Khan v. Obama, 655 F.3d 20 (D.C. Cir. 2011) ...................................................... 11
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`Mathis v. United States, 579 U.S. 500 (2016) ............................................... 7, 12-13
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`Stokeling v. United States, 139 S. Ct. 544 (2019) ............................................. 15-17
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`Students for Fair Admissions, Inc. v. President & Fellows of
`Harvard Coll., 600 U.S. 181 (2023) ............................................................. 21
`
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`United States v. Jenkins, 50 F.4th 1185 (D.C. Cir. 2022) ...................................... 20
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`United States v. Kepler, 74 F.4th 1292 (10th Cir. 2023) ........................................ 19
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`United States v. Khatallah, 41 F.4th 608 (D.C. Cir. 2022),
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`cert. denied, 143 S. Ct. 2667 (2023) ............................................................. 20
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`United States v. Lassiter, 1 F.4th 25 (D.C. Cir. 2021) ........................................... 20
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`United States v. Lung’aho, 72 F.4th 845 (8th Cir. 2023) ....................................... 19
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`United States v. Mahoney, 247 F.3d 279 (D.C. Cir. 2001) ............................... 22-23
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`United States v. Smith, 79 F.3d 1208 (D.C. Cir. 1996) .......................................... 11
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`Voisine v. United States, 579 U.S. 686 (2016) ....................................................... 21
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`STATUTES:
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`Armed Career Criminal Act
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`18 U.S.C. 924(e) ........................................................................................... 19
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`18 U.S.C. 924(e)(2)(B)(i) ....................................................................... 15, 19
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`- iii -
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`STATUTES (continued):
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`PAGE
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`Bail Reform Act
`18 U.S.C. 3142(f)(1)(A) ............................................................................. 2, 6
`18 U.S.C. 3142(f)(1)(B) ................................................................................. 2
`18 U.S.C. 3142(f)(1)(C) ................................................................................. 2
`18 U.S.C. 3143(a)(1) ................................................................................ 7, 24
`18 U.S.C. 3143(a)(2) ......................................................................... 2, 6-8, 10
`18 U.S.C. 3143(a)(2)(A) ................................................................. 3, 6, 11, 23
`18 U.S.C. 3143(a)(2)(B) ..................................................................... 3, 11, 23
`18 U.S.C. 3145(c) ........................................................................................... 2
`18 U.S.C. 3156(a)(2) ...................................................................................... 2
`18 U.S.C. 3156(a)(4)(A) ............................................................ 2, 6, 15-16, 22
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`Freedom of Access to Clinic Entrances Act
`18 U.S.C. 248(a) ........................................................................................... 13
`18 U.S.C. 248(a)(1) ................................................... 2-7, 10-11, 13-18, 21-23
`18 U.S.C. 248(b) .......................................................................... 3- 4, 6, 13-14
`18 U.S.C. 248(b)(1) .......................................................................... 3, 7-8, 14
`18 U.S.C. 248(c)(1) ........................................................................................ 4
`18 U.S.C. 248(e)(2) ...................................................................................... 17
`18 U.S.C. 248(e)(3) ...................................................................................... 17
`18 U.S.C. 248(e)(4) ...................................................................................... 22
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`18 U.S.C. 2 ................................................................................................................ 4
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`18 U.S.C. 241 ............................................................................................................ 4
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`18 U.S.C. 3231 .......................................................................................................... 1
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`28 U.S.C. 1291 .......................................................................................................... 2
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`RULE:
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`Fed. R. App. P. 9(a)(3) .............................................................................................. 9
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`- iv -
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`_________________
`
`Nos. 23-3143, 23-3146, 23-3147, 23-3156, 23-3158
`
`UNITED STATES OF AMERICA,
`
`Plaintiff-Appellee
`
`
`v.
`
`LAUREN HANDY, et al.,
`
`
`Defendants-Appellants
`_________________
`
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`____________________
`
`UNITED STATES’ MEMORANDUM OF LAW AND FACT
`_________________
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`STATEMENT OF JURISDICTION
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`Five defendants appeal the district court’s orders detaining them pending
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`sentencing. The district court had subject matter jurisdiction under 18 U.S.C. 3231
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`because defendants were charged with committing federal criminal offenses. In a
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`Minute Order entered on August 29, 2023—which the court declined to reconsider
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`in a written opinion issued on August 31, 2023—the court ordered defendants
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`detained pending sentencing. When other defendants tried separately were
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`convicted on September 15, 2023, the court similarly ordered them detained. All
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`defendants-appellants filed timely notices of appeal. This Court has jurisdiction
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`under 18 U.S.C. 3145(c) and 28 U.S.C. 1291.
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`STATEMENT OF THE ISSUE
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`Whether the district court correctly concluded that defendants’ offense of
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`conviction under 18 U.S.C. 248(a)(1) categorically constitutes a “crime of
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`violence” under the Bail Reform Act.
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`STATUTORY BACKGROUND
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`The Bail Reform Act
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`1.
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`At 18 U.S.C. 3143(a)(2), the Bail Reform Act requires the detention of a
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`defendant who is “awaiting imposition or execution of sentence” when the
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`individual has been “found guilty of an offense in a case described in” 18 U.S.C.
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`3142(f)(1)(A), (B), or (C). 18 U.S.C. 3143(a)(2). Among the offenses listed in
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`those subparagraphs is “a crime of violence.” 18 U.S.C. 3142(f)(1)(A). The Bail
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`Reform Act defines “crime of violence” to include “an offense that has as an
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`element of the offense the use, attempted use, or threatened use of physical force
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`against the person or property of another.” 18 U.S.C. 3156(a)(4)(A). An “offense”
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`under the Act encompasses both felonies and misdemeanors. 18 U.S.C.
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`3156(a)(2).
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`The Bail Reform Act provides one exception to its requirement of detaining,
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`post-conviction and pre-sentencing, individuals convicted of a crime of violence.
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`The exception applies if (1) the court finds that “there is a substantial likelihood
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`that a motion for acquittal or new trial will be granted” or the government has
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`“recommended that no sentence of imprisonment be imposed on the person,” and
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`(2) the court finds “by clear and convincing evidence that the person is not likely to
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`flee or pose a danger to any other person or the community.” 18 U.S.C.
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`3143(a)(2)(A) and (B).
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`2.
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`The Freedom Of Access To Clinic Entrances Act (FACE Act)
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`At 18 U.S.C. 248(a)(1), the FACE Act states that:
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`[w]hoever--
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`(1) by force or threat of force or by physical obstruction, intentionally
`injures, intimidates or interferes with or attempts to injure, intimidate or interfere
`with any person because that person is or has been, or in order to intimidate such
`person or any other person or any class of persons from, obtaining or providing
`reproductive health services
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` *
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` * *
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`shall be subject to the penalties provided in subsection (b)[.]
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`At subsection (b)(1), the FACE Act instructs that “in the case of a first
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`offense,” a defendant convicted under subsection (a)(1) shall be “imprisoned not
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`more than one year.” 18 U.S.C. 248(b)(1). A lesser term of imprisonment of “not
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`more than six months” applies “for an offense involving exclusively a nonviolent
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`physical obstruction.” 18 U.S.C. 248(b). Felony terms of imprisonment apply to
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`second or subsequent offenses (punishable by up to three years’ imprisonment),
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`offenses where “bodily injury results” (punishable by up to ten years’
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`imprisonment), and offenses where “death results” (punishable for any term of
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`years or for life). 18 U.S.C. 248(b).
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`STATEMENT OF THE CASE
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`1. On March 24, 2022, a federal grand jury returned a two-count
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`indictment against nine defendants. Doc. 1.1 A tenth defendant was added later
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`by superseding indictment. Doc. 113. The indictment charged defendants with
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`violating 18 U.S.C. 241 by conspiring to injure, oppress, threaten, or intimidate
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`individuals in the free exercise of a federal statutory right, i.e., the right to
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`obtain and seek to obtain, and to provide and seek to provide, reproductive
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`health services, as guaranteed in 18 U.S.C. 248(c)(1). See Doc. 113, at 2-7.
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`The indictment further charged defendants with violating the FACE Act, at 18
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`U.S.C. 248(a)(1), by using “force and physical obstruction” to intentionally
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`injure, intimidate, and interfere with a patient of a reproductive health services
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`clinic for obtaining reproductive health services, and with employees of the
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`clinic for providing such services. Doc. 113, at 7 (also charging defendants in
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`Count 2 with aiding-and-abetting under 18 U.S.C. 2).
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`1 “Doc. __, at __” refers to the docket entry and page number of documents
`filed on the district court’s docket. “A. __” refers to the addendum to this
`memorandum and page number. “Br. __” refers to appellants’ corrected opening
`brief and page number.
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`2. The case proceeded to trial against five defendants on August 15,
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`2023. 1:22cr96 Minute entry (D.D.C. Aug. 15, 2023). Following the close of
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`evidence, the court instructed the jury on both counts. As relevant here, the
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`court told the jury that, to convict on Count 2, the government had to prove
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`beyond a reasonable doubt that the defendant:
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`(1) “used force or physical obstruction”;
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`(2) “intentionally injured, intimidated, or interfered with [the patient of
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`the clinic] or the employees of the [clinic], or attempted to do so”; and
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`(3) “did so because [the patient] was obtaining or the [clinic] was
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`providing reproductive health services.”
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`A. 38.
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`The court defined “force” as “power and/or violence exerted upon or
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`against a person or property.” A. 38. It explained that “intimidate means to
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`place a person in reasonable expectation of bodily harm to themselves or
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`another,” and “interfere means to restrict a person’s freedom of movement.” A.
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`39.
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`The court also provided the jury with a special verdict form through
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`which it would specify, in the event of a conviction, whether it found that the
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`defendant used either force or physical obstruction, or both, in violating Section
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`248(a)(1). Doc. 413. The court provided the special verdict form in response to
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`a government motion, which explained that such findings were necessary to
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`determine the applicable penalty under 18 U.S.C. 248(b), given that a lesser
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`statutory maximum applies where a defendant violates the FACE Act
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`exclusively through nonviolent physical obstruction. See Doc. 363; see also 18
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`U.S.C. 248(b).
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`After deliberating for two days (1:22cr96 Minute entries (D.D.C. Aug. 25,
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`29, 2023)), the jury found all defendants guilty on both counts (Doc. 397, at 1).
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`Using the special verdict form, the jury further found that each defendant
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`violated the FACE Act by force and by physical obstruction. See Doc. 397, at
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`1; Doc. 413.
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`3. Upon conviction, the district court ordered the five defendants
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`detained pending sentencing. The court held that mandatory detention applied
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`under 18 U.S.C. 3143(a)(2), by reference to 18 U.S.C. 3142(f)(1)(A), because
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`the defendants’ FACE Act offense under Section 248(a)(1) constitutes a “crime
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`of violence” under the Bail Reform Act. 1:22cr96 Minute entry (D.D.C. Aug.
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`29, 2023). Specifically, the court found that the offense categorically “has as an
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`element of the offense the use, attempted use, or threatened use of physical
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`force against the person or property of another,” 18 U.S.C. 3156(a)(4)(A).
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`1:22cr96 Minute entry (D.D.C. Aug. 29, 2023). Additionally, consistent with
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`the required inquiry under 18 U.S.C. 3143(a)(2)(A), the court found that “no
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`substantial likelihood [existed] that a motion for acquittal or new trial w[ould]
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`be granted,” and that the prosecution intended to “recommend a term of
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`incarceration as to each Defendant.” 1:22cr96 Minute entry (D.D.C. Aug. 29,
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`2023).
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`Two defendants filed emergency motions for reconsideration, arguing that
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`their presentence detention was “governed under the more lenient provisions of
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`18 U.S.C. § 3143(a)(1), not those of § 3143(a)(2)” because a conviction under
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`Section 248(a)(1) “is not categorically a ‘crime of violence.’” Doc. 387, at 1
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`(emphasis omitted); see also Doc. 389. The government opposed the motion
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`(Doc. 395), which the district court treated as joined by all five defendants
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`(1:22cr96 Minute entry (D.D.C. Aug. 30, 2023)), and one defendant filed a
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`reply (Doc. 396).
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`The district court denied the motion in a written order. Doc. 397. The
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`court examined the elements of the FACE Act’s offenses and the Act’s
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`punishment scheme, and it concluded that “the FACE Act is ‘divisible’”
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`because “it defines ‘multiple crimes’ based on punishment.” Doc. 397, at 2
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`(quoting Mathis v. United States, 579 U.S. 500, 518 (2016)). As relevant here,
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`the court determined that one of the Act’s penalty provisions—specifically, 18
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`U.S.C. 248(b)(1)—applies to conduct that involves “violent physical
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`obstruction, force, or threat of force,” and where such action is proven,
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`“provides for a year of imprisonment.” Doc. 397, at 2. The court concluded
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`that “[a]ll” violations of this subsection “are necessarily crimes of violence”
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`because they have, as an element of the offense, the use, attempted use, or
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`threatened use of physical force against the person or property of another. Doc.
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`397, at 3. In contrast, a lesser misdemeanor penalty applies when a defendant
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`violates the Act through exclusively nonviolent physical obstruction. Doc. 397,
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`at 2.
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`Next, the district court reviewed case materials, including the indictment,
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`jury instructions, and special verdict form, “to determine of which sub-offense a
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`defendant was convicted and * * * whether that sub-offense is a crime of
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`violence.” Doc. 397, at 3. Based on the jury’s special finding that the five
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`defendants had acted by “force”—and not through exclusively nonviolent
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`physical obstruction—the court concluded that they had been convicted of the
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`“more serious misdemeanor” in Section 248(b)(1). Doc. 397, at 3. Thus,
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`because the jury had “convicted each Defendant of a crime of violence,” the
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`court confirmed that mandatory detention applied under 18 U.S.C. 3143(a)(2)
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`and denied the defendants’ motion. Doc. 397, at 3-4.
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`Three of those five defendants (Lauren Handy, Herb Geraghty, and
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`William Goodman) appealed the district court’s detention order. Docs. 398,
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`403, 405. This Court consolidated their appeals. Sept. 8, 2023, Order.
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`4. Trial as to three additional defendants commenced on September 8,
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`2023. See 1:22cr96 Minute entry (D.D.C. Sept. 8, 2023); see also Doc. 104, at
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`3 (setting separate trials for two groups of defendants). Following the close of
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`evidence, the district court gave the jury materially identical instructions on
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`Count 2 and again provided a special verdict form. A. 144-145; Doc. 427. The
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`jury convicted all defendants on both counts and further found that they each
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`violated the FACE Act by force and by physical obstruction. Doc. 427.
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`As in the prior proceedings, the district court held that defendants’ FACE
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`Act conviction constituted a crime of violence. 1:22cr96 Minute entry (D.D.C.
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`Sept. 15, 2023). The court determined there was no likelihood that a motion for
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`acquittal or new trial would be granted, and that the government would seek a
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`term of incarceration for each defendant, and it therefore ordered defendants
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`detained pending sentencing. 1:22cr96 Minute entry (D.D.C. Sept. 15, 2023).
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`Two defendants (Jean Marshall and Jonathan Darnel) appealed the district
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`court’s detention order. Docs. 433, 437. This Court consolidated their appeals
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`with those filed by the other three defendants. Sept. 27, 2023, Order.
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`5. While her appeal was pending, defendant Handy sought emergency
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`relief under Federal Rule of Appellate Procedure 9(a)(3). See Sept. 5, 2023,
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`Def.-App. Lauren Handy’s Mot. for Release Pending Sentencing. In the motion,
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`Handy argued that her offense of conviction is not categorically a crime of
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`violence because Section 248(a)(1) prohibits “even the reckless use of force”
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`and therefore does not require force “directed at or intended to harm another.”
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`Sept. 5, 2023, Def.-App. Lauren Handy’s Mot. for Release Pending Sentencing
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`14-17.
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`This Court denied the motion in a per curiam order because Handy did not
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`show that immediate relief was warranted. Sept. 22, 2023, Order. Judge Katsas
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`wrote a concurring opinion, in which he found Handy “unlikely to succeed on
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`her claim that the FACE Act permits convictions for the reckless use of force.”
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`Sept. 22, 2023, Order 2. He also sua sponte raised “whether the FACE Act’s
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`element of ‘force’ sweeps more broadly than the ‘physical force’ required for a
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`crime of violence” to the extent it incorporates “the common-law definition of
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`‘force,’” which “encompasses even the ‘slightest offensive touching.’” Sept.
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`22, 2023, Order 2 (citation omitted); see also Sept. 22, 2023, Order 3 (noting
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`“Handy’s failure to develop this argument”).2
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`SUMMARY OF ARGUMENT
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`
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`The district court correctly ruled that defendants are subject to mandatory
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`detention under 18 U.S.C. 3143(a)(2). As the court cogently explained, the FACE
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`2 Of the remaining defendants, one defendant previously entered a guilty
`plea as to Count 1 (1:22cr96 Minute entry (D.D.C. Mar. 1, 2023)), and was
`sentenced to ten months’ imprisonment (1:22cr96 Minute entry (D.D.C. Aug. 7,
`2023)). The other defendant is scheduled for trial beginning October 23, 2023.
`See 1:22cr96 Minute entry (D.D.C. Sept. 1, 2023).
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`Act is divisible and creates separate misdemeanor offenses in Section 248(a)(1)
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`that contain different elements and carry different punishments. The court thus
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`appropriately applied a modified categorical approach in determining, based on the
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`indictment and the jury’s special verdict form, that defendants had been convicted
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`of the more serious misdemeanor offense in Section 248(a)(1). Finally, the court
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`rightly concluded that this offense categorically constitutes a crime of violence
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`because it requires the use of physical force or threat of force. None of defendants’
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`arguments, which misread the plurality and concurring opinions in Borden v.
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`United States, 141 S. Ct. 1817 (2021), and misunderstand the FACE Act,
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`demonstrates otherwise.
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`Consequently, because defendants were convicted of a crime of violence and
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`cannot show that the district court erred in finding inapplicable the exception to
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`presentence detention in 18 U.S.C. 3143(a)(2)(A) and (B), this Court should
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`affirm.
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`ARGUMENT
`
`DEFENDANTS’ OFFENSE OF CONVICTION CATEGORICALLY
`CONSTITUTES A CRIME OF VIOLENCE
`
`
`A. Standard Of Review
`
`This Court reviews the district court’s legal conclusions de novo and its
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`findings of fact for clear error. See, e.g., Khan v. Obama, 655 F.3d 20, 25-26
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`(D.C. Cir. 2011); United States v. Smith, 79 F.3d 1208, 1209 (D.C. Cir. 1996).
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`B. The Modified Categorical Approach Applies Here
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`1. Under the categorical approach for determining whether an offense is a
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`crime of violence, a court “focus[es] solely on whether the elements of the crime of
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`conviction sufficiently match” the crime-of-violence definition at issue. Mathis v.
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`United States, 579 U.S. 500, 504 (2016); see also Borden v. United States, 141 S.
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`Ct. 1817, 1822 (2021) (plurality opinion) (observing that the categorical approach
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`is “applicable in several statutory contexts”). Specifically, the elements of the
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`crime of conviction must be “the same as, or narrower than, those of” a crime of
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`violence (here, under the Bail Reform Act). Mathis, 579 U.S. at 503. If they are,
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`then the crime for which the defendant was convicted is a “categorical[] match” for
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`the offense. Borden, 141 S. Ct. at 1822 (plurality opinion).
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`Courts apply a “modified categorical approach” when statutes “have a more
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`complicated (sometimes called ‘divisible’) structure.” Mathis, 579 U.S. at 505
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`(citation omitted). A statute is divisible if it “list[s] elements in the alternative, and
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`thereby define[s] multiple crimes.” Ibid. This can occur when the “statutory
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`alternatives carry different punishments.” Id. at 518.
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`If a statute defines multiple, separate crimes, a court must “look[] to a
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`limited class of documents * * * to determine what crime,” among the statutory
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`alternatives, “[the] defendant was convicted of.” Mathis, 579 U.S. at 505-506.
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`Such documents include a case’s “charging documents” and the “jury instructions
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`and verdict forms” used. Johnson v. United States, 559 U.S. 133, 144 (2010).
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`After consulting such documents “to determine which statutory phrase was the
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`basis for the [defendant’s] conviction,” ibid., the court does “as the categorical
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`approach commands” and conducts an elements-based analysis to decide whether
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`the defendant’s crime categorically qualifies as the relevant offense. Mathis, 579
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`U.S. at 506.
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`2. The district court correctly applied the modified categorical approach
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`here because, at 18 U.S.C. 248(a) and (b), the FACE Act sets forth multiple,
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`alternative crimes that carry different punishments. Among other things, the Act
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`makes it unlawful for any person to
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`by force or threat of force or by physical obstruction, intentionally
`injure[], intimidate[] or interfere[] with or attempt[] to injure,
`intimidate or interfere with any person because that person is or has
`been, or in order to intimidate such person or any other person or any
`class of persons from, obtaining or providing reproductive health
`services.
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`18 U.S.C. 248(a)(1).
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`Next, in Section 248(b), the Act imposes different penalties for violent and
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`nonviolent misdemeanor violations of Section 248(a)(1). Where a defendant uses
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`“exclusively a nonviolent physical obstruction” to violate the Act, the term of
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`imprisonment for a first-time offense may “be not more than six months.” 18
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`U.S.C. 248(b). For all other misdemeanor violations of Section 248(a)(1)—
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`namely, where a person violates the statute “by force or threat of force or by
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`USCA Case #23-3143 Document #2021595 Filed: 10/12/2023 Page 21 of 228
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`physical obstruction”—the term of imprisonment for a first-time offense may not
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`be “more than one year.” 18 U.S.C. 248(b)(1). In still other circumstances, the
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`Act sets forth statutory alternatives that, when proven beyond a reasonable doubt,
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`amount to felony offenses with different statutory maximum sentences. See 18
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`U.S.C. 248(b).
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`Moreover, as the district court aptly concluded, because the statute contains
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`a specific offense for exclusively nonviolent physical obstruction and imposes a
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`less severe punishment, the more serious misdemeanor in Section 248(a)(1) with
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`its harsher punishment must be read to apply to conduct that is violent—
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`specifically, conduct that includes force or threat of force, or use of violent
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`physical obstruction that itself involves force or threat of force. See Doc. 397, at 3;
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`see also pp. 16-17, infra.
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`C. Defendants’ Offense Is A “Crime Of Violence” Under The Bail Reform Act,
`Thus Requiring Mandatory Detention
`Applying the modified categorical approach, the district court correctly
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`determined that defendants were convicted of “[t]he more serious misdemeanor” in
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`Section 248(a)(1), and this offense “necessarily” constitutes a crime of violence
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`under the Bail Reform Act. Doc. 397, at 3.
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`1. The record establishes that defendants were charged with and convicted
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`of the more serious misdemeanor offense in Section 248. See Johnson, 559 U.S. at
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`144 (summarizing the documents a court can consider under the modified
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`categorical approach). As the district court discussed, the superseding indictment
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`alleged that defendants violated Section 248 “by [using] force”—and in the
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`alternative, by using “physical obstruction”—to “intentionally injure, intimidate,
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`and interfere with” a patient and employees of the clinic. Doc. 113, at 7; see also
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`Doc. 397, at 3. And using the special verdict form the court had prepared, the jury
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`made a “special finding” that “each Defendant used force to prevent access to or
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`provision of reproductive health services at the clinic at issue.” Doc. 397, at 1; see
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`also Docs. 413, 427.3
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`2. The more serious Section 248(a)(1) misdemeanor offense for which
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`defendants were convicted categorically qualifies as a crime of violence. As
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`discussed, a crime of violence under the Bail Reform Act is “an offense that has as
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`an element of the offense the use, attempted use, or threatened use of physical
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`force against the person or property of another.” 18 U.S.C. 3156(a)(4)(A). In
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`Johnson, the Supreme Court explained that “the phrase ‘physical force’ means
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`violent force—that is, force capable of causing physical pain or injury to another
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`person.” 559 U.S. at 140 (emphasis omitted) (construing the Armed Career
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`Criminal Act (ACCA) at 18 U.S.C. 924(e)(2)(B)(i)); see also Stokeling v. United
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`States, 139 S. Ct. 544, 550-554 (2019) (explaining that “force” has a well-
`
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`3 The jury found that “Defendants also used physical obstruction” in
`violating Section 248. Doc. 397, at 1; see also Docs. 413, 427.
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`understood meaning and Johnson “does not require any particular degree of
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`likelihood or probability that the force used will cause physical pain or injury; only
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`potentiality”). Later, in Stokeling, the Court rejected a claim that “minor uses of
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`force do not constitute ‘violent force,’” holding that “force is ‘capable of causing
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`physical injury’ within the meaning of Johnson when it is sufficient to overcome a
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`victim’s resistance.” 139 S. Ct. at 554.
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`The elements of Section 248(a)(1)’s more serious misdemeanor offense
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`satisfy the definition of a crime of violence. The provision requires a defendant to
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`undertake one of three types of conduct (force, threat of force, or violent physical
`
`obstruction) to intentionally or attempt to injure, intimidate, or interfere with a
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`person because they are or have been obtaining or providing reproductive health
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`services. See 18 U.S.C. 248(a)(1). The first two types of con