No. 22-2471 ___________________________

Tiffany Janis

Petitioner - Appellant

v.

United States of America

Respondent - Appellee ____________

Appeal from United States District Court for the District of South Dakota - Western ____________

Submitted: May 10, 2023 Filed: July 6, 2023 ____________ Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges. ____________ BENTON, Circuit Judge.

Tiffany Charlene Janis appeals her conviction for discharging a firearm during a crime of violence. See 18 USC § 924(c)(1)(A)(iii). Having jurisdiction under 28 U.S.C. § 1291 and § 2253, this court affirms. I.

Janis shot and killed her husband when she found him cheating. She pled guilty to second-degree murder in Indian country. See 18 U.S.C. §§ 1111(a), 1153. She also pled guilty to discharging a firearm during the commission of a crime of violence. See 18 U.S.C. § 924(c)(1)(A)(iii).

A year later, Janis moved to vacate her § 924(c) conviction, believing that intervening Supreme Court cases rendered it unlawful. See 28 U.S.C. § 2255. Specifically, she argued that federal second-degree murder could not be considered a “crime of violence” under § 924(c)(3)(A). The district court1 dismissed her motion. She appeals.

II.

This court reviews de novo whether second-degree murder qualifies as a “crime of violence.” McCoy v. United States, 960 F.3d 487, 489 (8th Cir. 2020).

A.

Janis pled guilty to discharging a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Like other laws,2 § 924(c) defines “crime of violence” using a “force clause” (also called an “elements clause”) and a “residual clause”:

[T]he term “crime of violence” means an offense that is a felony and—

1 The Honorable Charles B. Kornmann, United States District Judge for the District of South Dakota. 2 See, for example, the Armed Career Criminal Act, 18 U.S.C. § 924(e); the criminal code’s general provisions at 18 U.S.C. § 16; and U.S. Sentencing Guidelines §§ 4B1.1, 4B1.2, and 2K2.1. -2- [Force Clause] (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or [Residual Clause] (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) (alterations added).

When Janis pled guilty under § 924(c), federal second-degree murder might have qualified as a “crime of violence” under either the force or the residual clause. The Supreme Court changed the landscape by invalidating the residual clause as unconstitutionally vague. United States v. Davis, 139 S.Ct. 2319, 2336 (2019). See also Jones v. United States, 39 F.4th 523, 526 (8th Cir. 2022) (“Davis applies retroactively to cases on collateral review.”). Today, Janis’s murder conviction must satisfy the force clause to qualify as a crime of violence. See McCoy, 960 F.39 at 489.

To decide whether second-degree murder qualifies as a crime of violence under the force clause, this court applies the categorical approach described in United States v. Taylor, 142 S.Ct. 2015, 2020 (2022). Accord McCoy, 960 F.3