Some courts have held the aggravated offense is itself divisible based on the particular “aggravated way[]” the basic offense was committed-i.e., “(1) wounding the person with custody or control of the mail matter or other government property; (2) placing the person's ‘life in jeopardy by the use of a dangerous weapon'; or (3) committing a subsequent offense under § 2114(a).” United States v. Buck, 23 F.4th 919, 925-26 (9th Cir. 2022) (quoting 18 U.S.C. § 2114(a)); see also, e.g., United States v. King, No. 91-cr-1219, 2022 WL 1488654, at *3 (E.D.N.Y. May 11, 2022). This position is also supported by a “peek at the [record] documents” in this case, Mathis, 579 U.S. at 518 (alteration in original) (citation omitted), all of which treat only putting the life of a postal employee in jeopardy by use of a dangerous weapon (and not wounding a postal employee) as a separate element of Frazier's § 2114(a) offense, as discussed infra.
This finding is similarly buttressed by the pertinent, post-Davis caselaw, a review of which leads the Court to conclude that Gelzer's aggravated armed postal robbery conviction falls within Section 924(c)(3)(A)'s definition of a “crime of violence,” rendering his instant collateral attack defective. See, e.g., Board, 2022 WL 2079742, at *5 (denying defendant's motion to vacate armed postal robbery-predicated Section 924(c) conviction where underlying facts of crime satisfied Section 2114(a)'s “life in jeopardy” clause); United States v. King, No. 16-cv-3403, 2022 WL 1488654, at *2-3 (E.D.N.Y. May 11, 2022) (denying defendant's motion to vacate armed postal robbery-based Section 924(c) conviction and finding that “a robbery that puts a life in jeopardy by using a weapon capable of inflicting serious bodily harm requires, at a minimum, the use, attempted use, or threatened use of physical force”); Williams, 2022 WL 1488695, at *1 (denying defendant's motion to vacate armed postal robbery-based Section 924(c) conviction and finding that “the minimum conduct sufficient to satisfy § 2114(a)'s ‘life in jeopardy' aggravated postal robbery is a crime of violence”).
All three contain the same analysis of the § 2114 issue. See United States v. King, 91-CR-1219 (DRH), 2022 WL 1488654, at *4-5 (E.D.N.Y. May 11, 2022); United States v. Williams, 91-CR-1219 (DRH), 2022 WL 1488695, at *4-5 (E.D.N.Y. May 11, 2022). As the first step in the analysis, as these decisions reflect, § 2114(a) is consistently considered "divisible" because it lists both a base offense carrying a ten-year penalty and an aggravating offense carrying a more severe penalty.