govinfo:USCOURTS-pawd-1_10-cr-00056-1

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF PENNSYLVANIA 
 
 
UNITED STATES OF AMERICA  ) 
                    )    1:19cv232                         
            v.        )  1:10cr56 
      ) Electronic Filing 
MIKE BEAULIEU    )        
 
 
 
 
OPINION 
 
Movant Mike Beaulieu ("Beaulieu" or "petitioner") commenced this action by filing a 
motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.  The government 
opposes the motion and the parties have fully briefed the matter.  For the reasons set forth below, 
the motion will be denied.  
 On September 14, 2010, a grand jury returned a five count indictment against petitioner 
charging him with aggravated sexual abuse in violation of 18 U.S.C. § 2241(a), kidnapping in 
violation of 18 U.S.C. § 1201(a)(2), using and carrying a firearm during a crime of violence in 
violation of 18 U.S.C. § 924(c)(1)(A)(ii) and possession of a firearm by a convicted felon in 
violation of 18 U.S.C. § 922(g)(1).  The indictment charged that all of the offenses occurred on 
August 3, 2010.  On March 21, 2012, petitioner entered a plea of guilty to the charges of 
kidnapping at count 2 and using and carrying a firearm during a crime of violence at count 4 
after engaging in a thorough plea colloquy conducted by the Honorable Sean McLaughlin.   
 At the time of the offenses, petitioner was a previously convicted sexual predator who 
was living in Anson, Maine.  Pre-Sentence Investigation Report (PSIR) at p. 3 (defendant’s legal 
address), ¶ 25, ¶ 55 (prior Gross Sexual Conduct).  He had indicated to others and told the victim 
he was going to kill himself but he wanted to “rape someone” first.  Transcript of December 7, 
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2012 Guilty Plea (Doc. No. 38) at 20, 22.  He had been reported missing in Maine on July 29, 
2010, after he drove from Maine to the federal lands surrounding the Kinzua Dam in Warren 
County, Pennsylvania.  Id. at 22.  On August 3, 2010, he encountered a young couple meeting 
for a picnic.  Id. at 20.  He approached them, brandished a .45 caliber semi-automatic handgun, 
forced them to the ground, bound the boyfriend’s arms and legs with rope, and then gagged him 
with duct tape.  Id.  He ordered the twenty-year-old female victim into his truck at gunpoint.  Id.  
He drove her to a nearby area, forced her at gunpoint to lie face first in the dirt, raped her and 
ejaculated inside her vagina.  Id. at 20, 22.  He then left the victim and fled the scene.   
 Defendant subsequently was apprehended in Canada.  Id. at 22.  During the crime 
defendant told the victim that the handgun was a .45 caliber.  Id. at 21.  A DNA sample from the 
seamen gathered from the rape kit was a match to petitioner's DNA.  Id. at 23.  Petitioner was 
still in possession of the handgun when he was apprehended.   Petitioner confessed to using the 
gun to commit the rape of the female victim.  Id. at 22.   
 With the exception of petitioner's prior record, petitioner admitted to each of the above 
facts as part of the change of plea colloquy.  Id. at 23.  His guilty plea to count 2 (kidnapping) 
and count 4 (using a firearm during and in relation to a crime of violence) was accepted by the 
court.  Id. at 24.  He thereafter was sentenced to life at count 2 and a 7 year consecutive sentence 
at count 4.  The remaining counts of the indictment were dismissed pursuant to the plea 
agreement.   
 Petitioner contends that following Davis v. United States, -- U.S. --, 139 S. Ct. 2319 
(2019), which in line with the Court's prior precedents held that the residual clause contained in 
18 U.S.C. § 924(c) is unconstitutionally vague, his 924(c) conviction at count 4 is 
unconstitutional because the underlying crimes referenced therein, kidnapping and aggravated 
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sexual abuse, could only have been found to be a crime of violence under the now 
unconstitutional residual clause.  This is so because, according to petitioner, these underlying 
crimes do not have an element that requires the use of force within the meaning of § 924(c)'s 
elements clause.  Petitioner notes that the Attorney General has taken the position that the crime 
of kidnapping at 18 U.S.C. § 1201(a)(2) does not have an element that requires the use, 
attempted use or threatened use of force within the meaning of § 924(c)(3)(A).  And petitioner 
asserts that due to the indivisibility of the crime of aggravated sexual abuse at 18 U.S.C. § 
2241(a), the crime charged at count 1 likewise does not have an element of force as defined in 
the applicable jurisprudence.  So from petitioner's perspective, he was convicted of conduct that 
is no longer criminal.  Given this state of affairs, petitioner requests this court to vacate the 
conviction at count 4 and use its discretion under the sentencing package doctrine to resentence 
petitioner at count 2.   
 To say that the government takes umbrage with the petitioner's position would be an 
understatement.  It asserts that there are numerous procedural barriers to granting relief, 
including the inability to 1) overcome the appellate waiver in the plea agreement (which already 
has been enforced by Judge McLaughlin), 2) make a showing of the cause and prejudice required 
to overcome a procedural default, 3) provide a basis for bypassing the concurrent sentencing 
doctrine, and 4) identify a coherent path forward that accounts for the government's right to 
reinstate the dismissed counts in the event the conviction at count 4 is vacated.   
 Petitioner further posits that the court must apply the categorical approach.  As part of 
that jurisprudence, he asserts that he only admitted the least culpable conduct needed to sustain 
his § 924(c) conviction.  Here, where the offenses were identified in the disjunctive, petitioner 
maintains that the least culpable conduct consists of kidnapping, which the Attorney General has 
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conceded no longer qualifies as a crime of violence.  And even if the court were to consider the 
alternative offense of aggravated sexual abuse, that crime as defined is "indivisible."  Because it 
assertedly is an indivisible crime, the court may not look to any underlying records to ferret out 
which of the various "means" defendant employed to commit the crime.  And because § 2241(a) 
contains an attempt clause and it can be proven by such means as the offender threatening to kill 
himself if the victim does not submit and/or a mere disparity in size and coercive power 
sufficient to overcome the consent to the victim, the crime of aggravated sexual abuse falls 
outside the scope of § 924(c)'s elements clause in any event.  Thus, from petitioner's perspective, 
his conviction at count 4 no longer is predicated on a crime of violence and must be vacated 
because it rests on unconstitutional grounds.     
A § 2255 motion may be disposed of summarily where the motion fails to set forth a 
basis upon which relief can be granted or where the factual allegations advanced in support of 
the motion are vague, conclusory or patently frivolous.  See Rule No. 4 of the Rules Governing § 
2255 Proceedings; Blackledge v. Allison, 431 U.S. 63 (1977); Page v. United States, 462 F.2d 
932, 933 (3d Cir. 1972) (where the record affirmatively indicates that a claim for relief is without 
merit, it may be decided summarily without a hearing).  In Government of Virgin Islands v. 
Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985), the United States Court of Appeals for the Third 
Circuit stated: 
  A Section 2255 motion is addressed to the discretion of the trial judge  
  in the first instance and where the record affirmatively indicates the   
  claim for relief is without merit, the refusal to hold a hearing will not   
  be deemed an abuse of discretion. 
 
Id.; accord United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000).  Other courts have 
reached the same conclusion.  See Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982) 
(proper for district court to dismiss portion of § 2255 petition without evidentiary hearing where 
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allegations conclusively failed to state a claim for relief); United States v. Oliver, 865 F.2d 600, 
604 (4th Cir.), cert. denied, 493 U.S. 830 (1989) (district court may dismiss § 2255 petition 
pursuant to Rule 4(b) where record conclusively demonstrates that movant is not entitled to relief 
as a matter of law); Mathews v. United States, 11 F.3d 583, 584-86 (6th Cir. 1993) (where § 
2255 petition raises no factual disputes and bases for relief are without merit, district court need 
not hold an evidentiary hearing and may dismiss the motion summarily).  
 Petitioner's efforts to obtain relief are precluded by three basic principles.  First, the 
government may rely on either of the two alternative offenses identified in count 4, which 
necessarily brings to the forefront the issue of whether aggravated sexual abuse continues to 
qualify as a crime of violence notwithstanding the ruling in Davis.  Second, petitioner seeks to 
clear the application of the appellate and collateral attack waiver in his plea agreement by 
demonstrating that he was convicted of conduct which no longer qualifies as a crime, which 
would supply a clear showing of a miscarriage of justice.  But if § 2241(a)(1) requires proof of 
an element of force, then petitioner has not been convicted of conduct that is no longer criminal 
and he has not satisfied the gateway showing of a complete miscarriage of justice.  And finally, 
if § 2241(a) requires proof of the use of force, then he may not obtain relief in any event.   
 To resolve the issue raised by petitioner's current challenge, the court must resort to the 
doctrine known as the categorical approach.  The categorical approach has its roots in the 
Supreme Court's precedents interpreting the Armed Career Criminal Act, 18 U.S.C. § 924(e).  
United States v. Taylor, 495 U.S. 575, 590 (1990) ("Nor is there any indication that Congress 
ever abandoned its general approach, in designating predicate offenses, of using uniform, 
categorical definitions to capture all offenses of a certain level of seriousness that involve 
violence or an inherent risk thereof, and that are likely to be committed by career offenders, 
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regardless of technical definitions and labels under state law.").  And as subsequently refined, 
sentencing and reviewing courts determining whether an underlying predicate offense is a violent 
felony or serious drug offense under § 924(c) must apply the categorical approach.  United States 
v. Davis, -- U.S. --, 139 S. Ct. 2319, 2327-29 (2019); cf. Mathis v. United States, 136 S. Ct. 
2243, 2248 (2016) ("To determine whether a prior conviction is for generic burglary (or other 
listed crime) courts apply what is known as the categorical approach: They focus solely on 
whether the elements of the crime of conviction sufficiently match the elements of generic 
burglary, while ignoring the particular facts of the case."); United States v. Abbott, 748 F.3d 154, 
157 (3d Cir. 2014) (same).   
 Descamps v. United States, 570 U.S. 254 (2013), clarified "the analytical approach that 
sentencing courts must use to determine if a prior conviction is a predicate offense under 
ACCA."  United States v. Blair, 734 F.3d 218, 222 (3d Cir. 2013).  Mathis further clarified and 
extended this approach to cases involving statutes that have "multiple alternative elements."  
Mathis, 136 S. Ct. at 2249.  And the Court in Davis made clear that this approach applies to § 
924(c)'s elements clause as it relates to the underlying crime(s) imbedded in a § 924(c) 
conviction.  Davis, 139 S. Ct. at 2328.   
 Under the categorical approach, a court must review the elements of the predicate offense 
to determine whether it falls within the statutory definition(s).  Under this approach, a "prior 
conviction qualifies as [a predicate or underlying offense] only if the statute's elements are the 
same as, or narrower than, those of the [statutorily identified predicate offense]."  United States 
v. Brown, 765 F.3d 185, 189 (3d Cir. 2014).   
 A categorical review is limited to the elements of the defendant's prior conviction 
"without inquiry into the specific conduct of [the] particular offender."  James v. United States, 
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550 U.S. 192, 202 (2007); United States v. Johnson, 587 F.3d 203, 208 (3d Cir. 2009); accord 
Abbott, 748 F.3d 156 ("When deciding whether a previous conviction counts as a 'violent felony 
or a serious drug offense' under the ACCA, a sentencing court may look only to the elements of a 
defendant's prior conviction, not 'to the particular facts underlying those convictions.'") (quoting 
Descamps, 133 S. Ct. at 2283 (quoting Taylor, 495 U.S. at 600).  In other words, only the fact of 
conviction and the statutory definition of the offense, i.e., its elements, are relevant in 
determining whether a crime is a predicate offense.  James, 550 U.S. at 202; accord Mathis, 579 
U.S. at 504 (the categorical approach, "as we have always understood it, cares not a whit about 
[the brute facts].") (citing Taylor, 495 U.S. at 599–602). 
 By identifying separate categories of predicate offenses based on their elements, 
Congress evidenced an intent to have predicate offenses identified by uniform definitions that are 
independent of the labels employed under the various States' criminal codes.  Taylor, 495 U.S. at 
592: Mathis, 579 U.S. at 510.  These uniform definitions are confined to the elements that a jury 
necessarily would have found in order to convict, regardless of whether the conviction arises 
from a verdict or the entry of a guilty plea.  Descamps, 570 U.S. at 267; Mathis, 579 U.S. at 510.  
In other words, "the only facts the court can be sure the jury [] found [in rendering a prior guilty 
verdict] are those constituting elements of the offense - as distinct from amplifying but legally 
extraneous circumstances [and] . . . when a defendant pleads guilty to a crime, he waives his 
right to a jury determination of only that offense's elements[.]"  Descamps, 570 U.S. at 269-70; 
accord Mathis, 579 U.S. at 504 (elements are the constituent parts of a crime's legal definition – 
they are the things a jury must find beyond a reasonable doubt to convict and the things to which 
a defendant must admit to enter a valid guilty plea).  Implemented in this way, the categorical 
approach comports with the statutory text and history, avoids the Sixth Amendment concerns 
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that would arise from sentencing courts making findings of fact that properly belong to juries and 
"averts 'the practical difficulties and potential unfairness of a factual approach.'"  Descamps, 570 
U.S. at 267 (quoting Taylor, 495 U.S. at 601).  And these principles, which were mainly fleshed 
out under the Armed Career Criminal Act, are applicable to offenses forming the predicate for a 
§ 924(c) conviction, even though the predicate offense is in effect before the court as part of the 
current criminal proceeding.  Davis, 139 S. Ct. at 2327 (In contrast to a statute requiring a 
presiding judge to determine whether a prior conviction before another court qualifies as a 
predicate offense, "a § 924(c) prosecution focuses on the conduct with which the defendant is 
currently charged.  The government already has to prove to a jury that the defendant committed 
all the acts necessary to punish him for the underlying crime of violence or drug trafficking 
crime."). 
 A variant of the categorical approach known as the "modified categorical approach" has 
been approved for use in "a narrow range of cases."  Brown, 765 F.3d at 189; Descamps, 133 S. 
Ct. at 2281; Mathis, 136 S. Ct. at 2249.  Use of this approach is appropriate where "a prior 
conviction is for violating a so-called 'divisible statute.'"  Descamps, 133 S. Ct. at 2281.   A 
divisible statute "sets out one or more elements of the offense in the alternative."  Id.; Brown, 
765 F.3d at 190.  If at least one of the alternative versions of the offense reflects the elements of 
a predicate offense under the statutory definition in question, then "the modified categorical 
approach permits [the reviewing court] to consult a limited class of documents, such as 
indictments and jury instructions, to determine which alternative formed the basis of the 
defendant's prior conviction."  Descamps, 133 S. Ct. at 2281; Brown, 765 F.3d at 189; Mathis, 
136 S. Ct. at 2249.   Where the conviction arises from the entry of a guilty plea, the list of 
approved documents are "the charging document, written plea agreement, transcript of plea 
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colloquy, and any explicit factual finding by the trial judge to which the defendant assented."  
Brown, 765 F.3d at 189-90 (quoting Shepard v. United States, 544 U.S. 13, 16 (2005)); accord 
Descamps, 133 S. Ct. at 2284 (in Shepard, "we again authorized sentencing courts to scrutinize a 
restricted set of materials -- here, 'the terms of a plea agreement or transcript of colloquy between 
judge and defendant' -- to determine if the defendant had pleaded guilty to [the offense of 
burglary as generically defined].").   
 Descamps made clear that the modified categorical approach always "retains the 
categorical approach's central feature: a focus on the elements, rather than the facts, of a crime."  
Brown, 765 F.3d at 190. (quoting Descamps, 133 S. Ct. at 2285).   The reviewing court is 
permitted "to examine a limited class of documents [only] to determine which of a statute's 
alternative elements formed the basis of the defendant's prior conviction."  Id. (quoting 
Descamps, 133 S. Ct. at 2284).  "Review of these documents then permits the court to 'do what 
the categorical approach demands: compare the elements of the crime of conviction (including 
the alternative element used in the case) with the elements of the [predicate offenses as they are 
statutorily defined].'"  Id.  (quoting Descamps, 133 S. Ct. at 2284).  Any lingering question about 
the limited nature of this inquiry was put to rest in Mathis.  Mathis, 136 S. Ct. at 2251 ("Under 
ACCA, Taylor stated, it is impermissible for 'a particular crime [to] sometimes count towards 
enhancement and sometimes not, depending on the facts of the case.'  Accordingly, a sentencing 
judge may look only to 'the elements of the [offense], not to the facts of [the] defendant's 
conduct.'") (quoting Taylor, 495 U.S. at 601)). 
 The modified categorical approach is "applicable only to divisible statutes."  Brown, 765 
F.3d at 190.  A divisible statute is one that "lists multiple, alternative elements, and so effectively 
creates 'several different crimes,'" at least one of which has the same or more narrow elements as 
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the applicable statute's defined predicate or underlying offenses.  Descamps, 133 S. Ct. at 2283-
85; Brown, 765 F.3d at 189 ("a statute is 'divisible' when it 'list[s] potential offense elements in 
the alternative.'") (quoting Descamps, 133 S. Ct. at 2283).  But more than general divisibility is 
required: "a sentencing court should apply the modified approach to a divisible statute and 
examine extra-statutory documents only when 'at least one, but not all' of the separate versions of 
the offense is, by its elements, a predicate offense."  Brown, 765 F.3d at 191 (citing with 
approval United States v. Cabrera–Umanzor, 728 F.3d 347, 352 (4th Cir. 2013) ("[g]eneral 
divisibility . . . is not enough; a statute is divisible for purposes of applying the modified 
categorical approach only if at least one of the categories into which the statute may be divided 
constitutes, by its elements, a crime of violence.”) (quoting Descamps, 133 S. Ct. at 2285)). 
 In contrast, if a statute sweeps more broadly than a statutorily defined predicate offense 
because it consists of a "single, indivisible set of elements," then the statute is indivisible.  
Brown, 765 F.3d at 190 (quoting Descamps, 133 S. Ct. at 2282).  Likewise, "[i]f a statute is 
generally divisible into multiple versions, but each version is overbroad (covers at least some 
conduct that is not a [predicate offense]) and indivisible (cannot be further divided into sub-
versions based on the elements), the extra-statutory documents are irrelevant and a sentencing 
court's analysis has reached a dead-end: the prior conviction is not a predicate offense."  Id. at 
191 (citing Descamps, 133 S. Ct. at 2283).  In either scenario the modified categorical approach 
has no application to the court's inquiry and a conviction under the statute cannot be converted 
into a predicate offense.  Descamps, 133 S. Ct. at 2283; Brown, 765 F.3d at 193 (A statute that is 
"overbroad in that it criminalizes conduct that is not always considered a [prior predicate 
offense] and is thus indivisible "is categorically not a predicate offense for [the ACCA or career 
offender purposes].").  And this is so "even if the defendant actually committed the offense in its 
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[statutorily defined] form."  Descamps, 133 S. Ct. at 2282-83; Brown, 765 F.3d at 191 ("If the 
state statute 'sweeps more broadly' than the federal definition, a conviction under it is not a career 
offender predicate even if the defendant actually committed the offense in a way that involved 
the use (or threatened use) of physical force against another.") (quoting Descamps, 133 S. Ct. at 
2283); Mathis, 136 S. Ct. at 2253 ("ACCA, as just explained, treats such facts as irrelevant: Find 
them or not, by examining the record or anything else, a court still may not use them to enhance 
a sentence.  And indeed, our cases involving the modified categorical approach have already 
made exactly that point.  '[T]he only [use of that approach] we have ever allowed,' we stated a 
few Terms ago, is to determine 'which element[s] played a part in the defendant's conviction.'") 
(quoting Descamps, 570 U.S. at --, 133 S. Ct. at 2283, 2285).  
 Against this backdrop, petitioner essentially raises two basic arguments relating to 
whether the statutory definition of aggravated sexual abuse in § 2241(a) reflects a divisible 
offense.  First, he posits that the statute is indivisible because it permits prosecutions for 
attempts.  In this regard, the Court in Taylor recently made clear that the crime of attempt does 
not require the government to establish the use, threatened use of attempted use of force as an 
element.  So from petitioner's perspective, the crime of aggravated sexual abuse is broader than 
the elements clause at § 924(c)(3)(A).  Second, he asserts that the offense may be committed by 
conduct that indicates the elements of § 2241(a) extend well beyond § 924(c)'s elements clause.  
We disagree with each of these arguments. 
 Petitioner's attempt to transform the crime of attempted aggravated sexual abuse at § 
2241(a) into one of several means to commit an "indivisible" offense is misguided.  "Rather than 
rely on a general statute outlawing all attempts to violate federal criminal law, Congress has 
chosen to interweave prohibitions on attempted crimes within the statutes defining the 
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underlying substantive offenses.  In those statutes, it is clear that the words 'attempts to' authorize 
the prosecution of attempt offenses."  United States v. Walker, 990 F.3d 316, 329 (3d Cir. 2021).  
The statute in question here, aggravated sexual abuse, follows this approach.  See 18 U.S.C. § 
2241(a). 
 The Supreme Court recently considered whether a conviction for attempt constitutes an 
underlying crime of violence as defined by § 924(c)(3)(A) where the statute contains a predicate 
offense and also authorizes prosecutions for an attempt of the predicate offense.  In United States 
v. Taylor, 142 S. Ct. 2015 (2022), the Court considered whether attempted Hobbs Act robbery in 
violation of 18 U.S.C. § 1951(a) can qualify as a predicate offense under the elements clause at § 
924(c)(3)(A).  Id. at 2019.   "That clause covers offenses that 'ha[ve] as an element the use, 
attempted use, or threatened use of physical force against the person or property of another.'"  Id. 
(quoting U.S.C. § 924(c)(3)(A)).  Among other things, the Court squarely held that while the 
completed offense of Hobbs Act robbery requires the government to prove the defendant took or 
obtained property from another by means of actual or threatened force, the crime of attempted 
Hobbs Act robbery required proof of two separate and distinct elements: "(1) [t]he defendant 
intended to unlawfully take or obtain personal property by means of actual or threatened force, 
and (2) he completed a “substantial step” toward that end.") (citing United States v. Resendiz-
Ponce, 549 U.S. 102, 107 (2007)).  Because proof of a "substantial step" can at times be satisfied 
by conduct that does not involve the use, threatened use or attempted use of force, the offense of 
attempted Hobbs Act robbery cannot qualify as a predicate offense for a § 924(c) conviction 
under the categorical approach.  Id. ("Whatever one might say about completed Hobbs Act 
robbery, attempted Hobbs Act robbery does not satisfy the elements clause" because "whatever a 
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substantial step requires, it does not require the government to prove that the defendant used, 
attempted to use, or even threatened to use force against another person or his property.").   
 Given the fairly universal formulation of the crime of attempt, Taylor makes clear that 
the crime of attempt cannot qualify as an underlying offense for a § 924(c) conviction because 
the elements of intent and a substantial step will inevitably fall short of requiring the government 
to prove in every case an element that involves the use, attempted us, or threatened use of force.  
Id. ("The only relevant question is whether the federal felony at issue always requires the 
government to prove - beyond a reasonable doubt, as an element of its case - the use, attempted 
use, or threatened use of force.  This Court has long understood similarly worded statutes to 
demand similarly categorical inquiries.") (citing Borden v. United States, 593 U. S. --, --, 141 S. 
Ct. 1817 (2021); Davis, 139 S. Ct. at 2328; and Leocal v. Ashcroft, 543 U.S. 1, 7 (2004)).   
 It follows from Taylor that the offense of attempt embedded in aggravated sexual abuse 
necessarily requires the government to prove elements that differ from the completed offense of 
aggravated sexual abuse.  It further follows that a conviction for such an attempt necessarily 
would not constitute a crime of violence under § 924(c)'s elements clause.  Thus, if at least one 
statutory component of § 2241(a) constitutes a crime of violence, then the statute is divisible and 
the modified categorical approach applies because 1) one offense within the statutory definition 
of the crime is a crime of violence and 2) the crime as statutorily defined contains a separate 
crime that requires proof of elements that are separate from the crime of violence.  See, e.g.,  
Descamps, 133 S. Ct. at 2285 ("a statute is divisible for purposes of applying the modified 
categorical approach only if at least one of the categories into which the statute may be divided 
constitutes, by its elements, a crime of violence.”); accord Brown, 765 F.3d at 191; Cabrera–
Umanzor, 728 F.3d at 352.  We turn to that analysis. 
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 A review of the caselaw interpreting § 2241(a) makes clear that the completed offense of 
aggravated sexual abuse defined therein always requires the government to prove the use of force 
or the threatened use of force in a manner sufficient to satisfy the elements clause in § 
924(c)(3)(A).  In the area of sexual abuse, the degree of force needed for conviction under a 
particular statute frequently arises.  See generally United States v. Daniel, 2021 WL 3037404 (D. 
Idaho, July 19, 2021).  The statutes in this area often require one of two common formulations: 
force sufficient to overcome the will of the victim and thus obtain a sexual act without consent; 
and physical force sufficient to overcome the person and thus obtain a sexual act without 
consent.  Id. at *4-5.  In conducting the inquiry, courts have been required to grapple with 
whether the force required must be more than that inherent in the act of sexual penetration in 
intercourse.  Id. at *5-7 (surveying caselaw). 
   In United States v. Boyles, 57 F.3d 535 (7th Cir. 1995), the court was required to 
consider the elements of aggravated sexual abuse at § 2241(a) and the elements of sexual abuse 
at § 2242(1) pursuant to the defendant's challenge of the trial court's failure to submit a lesser-
included offense instruction to the jury.  The court opined:  
 A side by side comparison of the two sexual assault statutes shows that the elements of 
18 U.S.C. § 2241(a)(1), the crime of aggravated sexual assault, are: knowingly causing 
another to engage in a sexual act by using force against that person, whereas the elements 
of the crime of sexual assault, 18 U.S.C. § 2242(1), are: knowingly causing another to 
engage in a sexual act by threatening them or placing them in fear.  Sexual assault requires 
that the government prove that the victim was threatened or placed in fear, neither of which 
is a required element of aggravated sexual assault.  We have often said that the best way to 
interpret statutes is to look to their plain language for it is “the most reliable indicator of 
congressional intent.”  Central States, et al. v. Cullum Companies, 973 F.2d 1333, 1339 
(7th Cir.1992). 
 “Fear” and “threats” are different from “force.”  “Force” is “power, violence, 
compulsion, or constraint exerted upon or against a person.” Black's Law Dictionary 644 
(6th ed. 1990).  Force is the exertion of physical power upon another to overcome that 
individual's will to resist, whereas fear and threats are not classified as physical power, but 
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rather overcoming one's will to resist through mental and emotional power.  The very 
language of the two sexual assault statutes is different.  One requires the overpowering of a 
victim's will by the use of force, while the other mandates overpowering the victim's will 
by use of threats or fear.  * * * 
 When proving the crime of sexual assault, the government must establish that the 
rapist overcame the victim's will to resist by the use of fear or threats. Aggravated sexual 
assault merely requires the use of force in the commission of the crime.  The sexual assault 
delineated in the statutory language is not a lesser included offense of aggravated sexual 
assault and the trial judge did not commit error, as alleged, when he failed to instruct the 
jury, sua sponte, concerning what the defendant argues is a lesser included offense, that of 
sexual assault. 
 
Id. at 544-45.   
 The court in United States v. Cates, 882 F.3d 731 (7th Cir. 2018), was required to revisit 
the elements of § 2241(a) after the trial court had instructed that the needed "force" as used in § 
2241(a) did not require that the government prove the defendant used actual violence and instead 
the government could satisfy its burden by "a showing of . . . the use of threat of harm sufficient 
to coerce or compel submission by the victim.”  Id. at 737.  The instruction continued: the 
needed “[f]orce may also be implied from a disparity in coercive power or in size between the 
defendant and [the victim]."  Id.  The panel in Cates found this instruction "badly flawed" and 
explained that "[w]e long ago held that the term force in § 2241(a) means physical force."  Id. at 
737 (citing Boyles, 57 F.3d at 544.).  It further opined: 
By defining “force” in this expansive way, the jury instruction flatly contradicted the text 
of § 2241(a)(1) and our decision in Boyles.  The instruction plainly misstated the law by 
wrongly suggesting that force does not mean physical force.  The jury was told that threats 
and other nonphysical forms of coercion—including a mere disparity in coercive power or 
size—could suffice to establish force.  That erroneously conflated the distinction between 
“force” and “fear,” relaxing the government’s burden.  The instruction permitted the jurors 
to find that Cates committed aggravated sexual abuse based on proof of something less 
than either physical force or a threat or fear of death or serious bodily injury. 
 
Id.    
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 Our court of appeals has defined the elements of § 2241(a) in the same manner.  In 
United States v. Shaw, 891 F.3d 441 (3d Cir. 2018), the court was required to determine 
whether the crime of aggravated sexual abuse as defined in § 2241(a) can be established by 
the use of threat or fear-inducing coercion sufficient to overcome the will of the victim or 
instead requires proof of actual use of physical force or specific threats of actual force 
sufficient to overcome the victim's person.  There, the defendant was convicted of deprivation 
of civil rights under 18 U.S.C. § 242 for unwanted sexual contact and was sentenced to 25 
years of incarceration followed by 5 years of supervised release for an aggravated violation of 
the statute.  Under the graded structure of § 242, the legality of the sentence turned on 
whether the evidence was sufficient to sustain a conviction for aggravated sexual abuse under 
18 U.S.C. § 2241(a) and, if so, whether the trial court had given proper instructions on what 
the government was required to prove in order to satisfy the elements of § 2241(a).     
 The court in Shaw agreed with the holding in Cates that it is erroneous to conflate the 
distinction between force and fear and permit a jury to convict on aggravated sexual abuse 
based on "proof of something less than either physical force or a threat of fear of death or 
serious bodily injury."  Id. at 451.   And the trial court's instructions could have misled the 
jury into believing that non-consent or coerced consent was equivalent to the required use of 
force or threat of death or serious bodily injury.  Id.  In doing so, the trial court undermined 
the graded approach Congress adopted in promulgating § 2241(a).  Id. 
 Nevertheless, the Shaw court upheld the jury's finding of guilt under § 2241(a).  The 
district court also had instructed the jury that "Section 2241(a) requires either 'using force 
against the other person . . . or . . . placing the other person in fear that any person will be 
subjected to death, serious injury or kidnapping."  It further required the jury to find the 
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defendant "used force during the alleged sexual assault" and emphasized that the offense 
contained a "requirement of force."   Id. at 452.  These aspects of the jury instruction rendered 
any potential confusion from the disparities portion of the instruction harmless and required 
the appellate court to uphold the verdict because the charge as a whole made clear that the 
jury could only convict for the aggravated offense upon a finding of actual force.1  Id.     
 Section 2241(a) defines the completed offense of aggravated sexual abuse as an 
offense that requires the use of force or the threat of force that creates a fear of death or 
serious bodily injury.  Shaw, 891 F.3d at 451; United States v. H.B., 695 F.3d 931, 936 (9th 
Cir. 2012) (§ 2241(a)(1) “requires a showing of actual force.”) (quoting United States v. 
Fulton, 987 F.2d 631, 633 (9th Cir. 1993)); United States v. Martinez, 110 f.4th 160, 172 (2d 
Cir. 2024) (following Lauck and concluding that § 2241(a)(1) requires a showing that the 
defendant used force against another to cause a sexual act).  This requirement satisfies the 
force requirement in § 924(c)(3)(A) and thus the offense is a crime of violence under that 
section.  It also defines an offense for attempting to commit aggravated sexual abuse.  18 
U.S.C. § 2241(a).  This offense is not a crime of violence under 924(c)(3)(A).  Taylor, 142 S. 
Ct. at 2019.  The statute thus defines an offense that falls under the elements clause in § 
924(c) and an offense that does not.  So Section 2241(a) is divisible. 
 In considering whether defendant pled guilty to a crime of violence under 
924(c)(3)(A) when the underlying statute defines both a predicate and non-predicate offense, 
"[t]he inquiry into the underlying predicate crime of violence is fact-based."  United States v. 
Stoney, 62 F.4th 108, 112 (3d Cir. 2023).  The question is: what crime did the defendant admit 
 
1   "Under Section 2241(a)(1), '[t]he requirement of force may be satisfied by a showing of . . . 
the use of such physical force as is sufficient to overcome, restrain, or injure a person . . . .'"  Id. 
at 452-53 (quoting United States v. Lauck, 905 F.2d 15, 17 (2d Cir. 1990)).   
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to committing.  Id.  Therefore, it is proper to consider not only the indictment, but the "plea 
agreement and the attendant factual proffer" made at the change of plea hearing.  Id. (citing In 
re Navarro, 931 F.3d 1298, 1302 (11th Cir. 2019) (noting that Navarro's “plea agreement and 
the attendant factual proffer more broadly establish that his § 924(c) charge was predicated 
both on conspiracy to commit Hobbs Act robbery and drug-trafficking crimes.”; and 
collecting cases at n. 3). 
 The indictment and transcript of the change of plea hearing establish that defendant 
committed the offense of aggravated sexual abuse as charged in count one.  Count one 
charged that defendant did knowingly cause the victim to engage in a sexual act by the "use of 
force against the victim T.M.G., and by threatening and placing the victim T.M.G. in fear that 
she would be subjected to death, serious bodily injury and kidnapping, in that the defendant 
did use a handgun to force the victim, T.M.G., to engage in a sexual act[,]" in violation of 
Title 18, United States Code, Section 2241(a).  Indictment (Doc. No. 1) at p. 1.  Count four 
charged defendant with knowingly using a firearm, "during and in relation to a crime of 
violence, . . . that is aggravated sexual abuse and kidnapping, contrary to the provisions of 
Title 18, United States Code, Sections 2241(a) and 1201(a)(2), as charged in Counts One, 
Two and Three, in violation of Title 18, United States Code, Section 924(c)(1)(A)(ii)."   
 As to the elements of the § 924(c)(1)(A) charged at count four, the judge advised 
defendant at the change of plea colloquy as follows: 
in order for the crime of using and carrying a firearm during a crime of violence, in 
violation of 18 U.S.C. 924(c)(1)(A)(ii), to be established, the government must prove all 
of the following essential elements beyond a reasonable doubt: 
 That Mike Beaulieu committed the crimes of aggravated sexual abuse and 
kidnapping as charged in Counts One, Two and Three.  That during and in relation to 
the commission of that crime, Mike Beaulieu knowingly used/carried a firearm.  The 
phrase "uses or carries a firearm" means having a firearm, or firearms, available to 
assist or to aid in the commission of the crime of aggravated sexual abuse and 
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kidnapping.  "Use" means more than mere possession of a firearm by a person who 
commits a crime; to establish use, the government must show active employment of the 
firearm. If the defendant did not either disclose or mention the firearm or actively 
employ it, the defendant did not use the firearm.  "Carry" means that the defendant had 
the firearm on his person/possessed the firearm.  That Mike Beaulieu used/carried the 
firearm during and in relation to the crime of aggravated sexual abuse and kidnapping. 
During and in relation to means that the firearm must have had some purpose or effect 
with respect to aggravated sexual abuse and kidnapping.  The firearm must have had at 
least facilitated or had the potential of facilitating aggravated sexual abuse and 
kidnapping. 
 
Do you understand the elements insofar as that count are concerned? 
THE DEFENDANT:  Yes, sir. 
 
Change of Plea Hearing of March 21, 2012 (Doc. No. 38) at p. 9-10.  
 At the hearing the government proffered the following factual basis: 
 
 The testimony would establish that on August 3, 2010, a 20-year-old victim, there 
are two victims in this case, your Honor, I will identify them today with their initials, 
consistent with how they're identified in the Indictment.  The 20-year-old I will identify 
with the initials T.M.G., and her 23-year-old, the boyfriend, C.J.E., were in the 
Allegheny National Forest at Kinzua Point Information Center.   
 The testimony, your Honor, will show this is an area within the special maritime 
and territorial jurisdiction of the United States.  At around 3 o'clock p.m., Mr. Beaulieu, 
who was eventually identified as Mr. Beaulieu, approached T.M.G. and C.J.E. They 
actually observed this individual, who they later identified as Mr. Beaulieu, standing 
somewhere in their vicinity when they arrived at the Kinzua Point Information Center 
solely to meet together to go on a picnic.   
 Shortly thereafter, Mr. Beaulieu approached them at gun point, he ordered them to 
the ground.  Mr. Beaulieu bounds C.J.E.'s arms and legs with a rope, and gags him with 
duct tape. He then ordered the girl, the 20-year-old, T.M.G., into his truck at gun point. 
He drove off with her to a more secluded location in the forest.   
 Then still at gun point, Mr. Beaulieu ordered T.M.G. to lie face first on the ground. 
He then raped her, penetrated her vagina with his penis and ejaculated inside of her.   
 On the ride to the location, the testimony would show that Mr. Beaulieu had told 
T.M.G. that he was going to kill himself, but wanted to rape someone before he died. 
 After raping T.M.G. at gun point, Mr. Beaulieu told her to stay there until he 
returned, and he then drove off.  T.M.G. was able to gather herself and walk through the 
woods towards the traffic noise and flagged down an oncoming vehicle, and a passing 
Pennsylvania police trooper arrived.   
 T.M.G. was taken to the hospital in Warren for an examination and collection of 
evidence, including samples of the assailant's DNA through the semen from the rape 
itself. 
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 During the course of the incident with Mr. Beaulieu, T.M.G. would testify that she 
engaged in a conversation to keep herself from being killed and was able to learn that 
the gun he has was a .45 caliber. 
* * * 
 With the assistance of the U.S. Marshals and the Royal Canadian Mounted Police, 
Mr. Beaulieu was captured at his grandmother's property in Canada shortly thereafter. 
At the time of the capture, he was unlawfully in possession of the gun that was used to 
rape T.M.G.  In an interview with members of the Royal Canadian Mounted Police, Mr. 
Beaulieu confessed in detail to using the gun to commit the rape of T.M.G. 
 
* * * 
 In addition, your Honor, Forensic Scientist II Frank Kist, from the Pennsylvania 
State Police crime laboratory, would testify that the DNA profile, the sperm and the 
vaginal swabs taken during the rape examination of T.M.G., in fact matched the DNA 
profile of Mr. Beaulieu, that not only had been obtained through law enforcement 
databases, but also had been obtained as a result of a search warrant being executed for 
Mr. Beaulieu. That would be the nature of the government's proof. 
 
 THE COURT: Mr. Beaulieu, you just heard what Mr. Piccinini said by way of a 
summary, do you agree with everything he just said? 
 
 THE DEFENDANT:  Yes, sir. 
 
Id. at 19-23. 
 It follows that defendant knowingly, intelligently and voluntarily admitted to 
committing the actual offense of completed aggravated sexual assault in violation of 18 
U.S.C. § 2241(a).  He used and carried a firearm to do so and he admitted to using force 
against the victim sufficient to place her in fear that she would be subjected to death, serious 
bodily injury and kidnapping.  In other words, defendant admitted that he committed the 
elements of the predicate offense of aggravated sexual assault as charged in count one and 
defined in Shaw.   
 Having pled to count four in a manner that established the elements of count one as 
one of the predicate offenses, the record shows that defendant committed a predicate offense 
that is a crime of violence under § 924(c)(3)(A).  Thus, Davis does not remove his conduct 
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from the reach of criminal liability or otherwise provide defendant with an avenue for 
vacating his conviction and/or sentence.    
 The court has considered whether the government's ability to prove "kidnapping" in 
establishing the physical force element in § 2241(a)(1) removes defendant's conviction at 
count four from the scope of the elements clause and concludes that it does not.  In this 
regard, the ruling in United States v. Faulls, 23 WL 3260551, *11 (W.D. Va. May 4, 2023), 
that "kidnapping under § 2241(a)(2) requires the use of physical force" is persuasive. 
 There, in the face of a challenge pursuant to § 2255 asserting that the definition of 
aggravated sexual abuse in § 2241(a)(1) did not satisfy the elements clause of § 924(c)(3(A), 
the court concluded that § 2241(a)(1) always requires the government to prove the use of 
violent physical force against another.  Id. at *9 ("I find that force means violent, physical 
force.").   
 As to the use of the term "kidnapping," the court rejected the defendant's contention 
that the term referred to the federal statutory definition at 18 U.S.C. § 1201(a), which can be 
committed without the use of force, and concluded that Congress intended the term to have its 
common law definition.  The court opined: 
 “Kidnap” is defined at common law to mean “to take and carry a person by force and 
against his will.”  United States v. Young, 512 F.2d 321, 323 (4th Cir. 1975).  So defined, 
kidnapping would require the use of strong physical force.  The defendant's competing 
definition, by contrast, would conflict with the “usual rule of statutory interpretation that a 
law's terms are best understood by ‘the company they keep.’”  United States v. Taylor, 142 
S. Ct. 2015, 2023 (2022) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995)); 
United States v. Williams, 553 U.S. 285, 294 (2008) (interpreting terms based on the 
“neighboring words with which it is associated”).  It is reasonable to read the statute's 
string of operative words — death, severe bodily injury, and kidnapping — as requiring 
threats of a serious, physical nature.  While kidnapping is certainly susceptible to include 
conduct that does not require physical force, its meaning is narrowed by its association in 
the statute with “death” and “severe bodily injury.”  Surely it would not be Congress's 
intent to group such conduct with mere deceit or non-consent of a parent, as suggested by 
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the defendant; such a definition would vastly expand the statute's reach by sweeping in less 
severe types of threats. 
 This interpretation is also consistent with the statute's other provisions.  Congress 
separated out aggravated sexual abuse from non-aggravated sexual abuse by providing 
more severe punishment under the former for only certain types of more serious threats: 
death, severe bodily injury, and kidnapping.  Shaw, 891 F.3d at 448.  Specifically, non-
aggravated abuse prohibits knowingly “caus[ing] another person to engage in a sexual act 
by threatening or placing that other person in fear (other than by threatening or placing that 
other person in fear that any person will be subjected to death, serious bodily injury, or 
kidnapping).”  18 U.S.C. § 2242(1) (emphasis added).  When read together, these two 
provisions “demonstrate Congress's graded approach to criminalizing sexual assault.”  
Shaw, 891 F.3d at 448. 
  Accordingly, I find that kidnapping under § 2241(a)(2) requires the use of physical 
force.  In so holding, I decline to adopt the defendant's proposed use of the generic offense 
definition of kidnapping.  
 
 Faulls, 23 WL 3260551 at *10-11. 
 We agree with Judge Jones.  The statutory text and structure of § 2241(a) strongly 
support the conclusion that Congress used the term "kidnapping" as understood by its 
common law definition in defining the crime of aggravated sexual abuse.  And this 
interpretation is harmonious with the force element of § 2241(a)(1) as interpreted by Shaw.  
So we adopted it here. 
 It follows that Davis did not remove defendant's underlying criminal conduct from the 
definition of a crime of violence set forth in § 924(c)(3)(A), and defendant's admission to the 
offense charged at count one continues to establish that he used a firearm during and in 
relation to a crime of violence.  Consequently, he is not entitled to relief and his motion 
pursuant to § 2255 will be denied.    
 Finally, petitioner’s concomitant request for a certificate of appealability must be denied.  
"A certificate of appealability may issue . . . only if the applicant has made a substantial showing 
of the denial of a constitutional right."  28 U.S.C. § 2253(c)(2).  Where the district court has 
rejected a constitutional claim on its merits, to obtain a certificate "[t]he [movant ] must 
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demonstrate that reasonable jurists would find the district court's assessment of the constitutional 
claims debatable or wrong."  Slack v. McDaniel, 529 U.S. 473, 484 (2000).  "[W]hen a district 
court denies a habeas petition on procedural grounds without reaching the merits of the 
underlying constitutional claim . . . a COA may issue only if the petitioner shows that: (1) 'jurists 
of reason would find it debatable whether the district court was correct in its procedural ruling;' 
and (2) 'jurists of reason would find it debatable whether the petition states a valid claim of the 
denial of a constitutional right.'"  Pabon v. Superintendent, SCI-Mahanoy, 654 F.3d 385, 392 (3d 
Cir. 2011) (quoting Slack, 529 U.S. at 478). 
Applying those standards here, jurists of reason would not find it debatable as to whether 
petitioner's contentions supply a sufficient basis for further record development.  As noted above, 
the applicable law and information of record demonstrate that his claims regarding the lack of an 
underlying predicate offense that constitutes a crime of violence are meritless and reasonable 
jurists would not find the court's assessments to be debatable or wrong.  Accordingly, petitioner's 
concomitant request for a certificate of appealability must be denied. 
 For the reasons set forth above, petitioner’s motion pursuant to § 2255 will be denied as 
meritless and his concomitant request for a certificate of appealability likewise will be denied.  
Appropriate orders follow. 
Date: March 30, 2026  
       s/David Stewart Cercone                        
       David Stewart Cercone 
       Senior United States District Judge 
 
cc: Michael Leo Ivory, AUSA 
 Christian A. Trabold, AUSA 
 Renee Pietropaolo, AFPD 
 
 (Via CM/ECF Electronic Mail) 
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