United States Court of Appeals For the First Circuit No. 16-1293 ELAINE BROWN, Petitioner, v. UNITED STATES, Respondent. APPLICATION FOR LEAVE TO FILE A SECOND OR SUCCESSIVE MOTION UNDER 28 U.S.C. § 2255 Before Lynch, Stahl, and Thompson, Circuit Judges. Bjorn R. Lange for petitioner. Seth R. Aframe, Assistant U.S. Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for respondent. October 12, 2018 LYNCH, Circuit Judge. Elaine 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. I. Elaine 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. When 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 - 2 - 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 violence" as: [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 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. 18 U.S.C. § 924(c)(3). At 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 § 924(c)(3)(B), which is known as the residual clause. The jury convicted Brown on all counts, and she was sentenced to 420 months in prison. The § 924(c) charge carried a mandatory minimum sentence of thirty years because it was for possession of a destructive device. See id. § 924(c)(1)(B)(ii). Brown's direct appeal was ...
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