76 F.4th 1277
9th Cir.2023Background
- Dorsey was indicted in 2009 on multiple counts related to a stolen-vehicle scheme; he pleaded guilty to 20 counts but went to trial on two counts: witness tampering (18 U.S.C. § 1512(a)(1)–(2)) and discharging a firearm in relation to a crime of violence (18 U.S.C. § 924(c)(1)(A)(iii)) based on an allegation he shot a grand‑jury witness.
- A jury convicted Dorsey in 2010 of the witness‑tampering charge and the § 924(c) count; the district court imposed a 48‑year sentence (30 years for witness tampering plus a consecutive 18 years under § 924(c)).
- Dorsey pursued a § 2255 motion and repeatedly sought leave to amend to add the claim that § 1512 witness tampering is not a "crime of violence" under § 924(c)(3)(A).
- The district court assumed timeliness and excuse of default but denied leave to amend on futility grounds, holding witness tampering by attempted killing is categorically a crime of violence.
- The Ninth Circuit granted a certificate of appealability on whether witness tampering qualifies as a "crime of violence" under § 924(c), and reviewed de novo the futility question.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attempted killing under 18 U.S.C. § 1512(a)(1) is a "crime of violence" under § 924(c)(3)(A) | Govt: Attempt to kill necessarily involves the use/attempted use of violent physical force and the requisite intent, thus qualifies | Dorsey: Attempt crimes (per Taylor) can encompass non‑violent or merely threatening conduct and therefore may not categorically match § 924(c)(3)(A) | Held: Attempted killing under § 1512(a)(1) is a categorical match; attempt to kill requires a substantial step plus specific intent to kill, satisfying the force and mens rea requirements |
| Whether use-of-force under 18 U.S.C. § 1512(a)(2) is a "crime of violence" under § 924(c)(3)(A) | Govt: Using physical force to influence testimony necessarily involves violent physical force directed at another and requires intent, so it qualifies | Dorsey: § 1512(a)(2) can encompass non‑violent confinement or other conduct that might not meet the force or intent standards | Held: Use of physical force under § 1512(a)(2) is a categorical match; the statute (as applied to use of force) requires physical force capable of causing pain/injury and intentional direction against another, excluding mere recklessness or trivial contact |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (holding § 924(c) residual clause unconstitutionally vague)
- Borden v. United States, 141 S. Ct. 1817 (2021) (mens rea requirement excludes crimes punishable on a reckless theory)
- United States v. Taylor, 142 S. Ct. 2015 (2022) (attempted Hobbs Act robbery does not categorically qualify under § 924(c) elements clause)
- United States v. Buck, 23 F.4th 919 (9th Cir. 2022) (applying the categorical approach and divisibility analysis)
- United States v. Studhorse, 883 F.3d 1198 (9th Cir. 2018) (attempted murder satisfies elements‑clause force requirement)
- Johnson v. United States, 559 U.S. 133 (2010) (force must be more than a "mere touch" for categorical matching)
- Stokeling v. United States, 139 S. Ct. 544 (2019) (force requirement satisfied by potentiality to cause pain or injury)
- Descamps v. United States, 570 U.S. 254 (2013) (modified categorical approach for divisible statutes)
- Mathis v. United States, 579 U.S. 500 (2016) (divisibility vs. indivisibility analysis)
- Braxton v. United States, 500 U.S. 344 (1991) (attempt to kill requires intent to kill)