44 F.4th 1334
11th Cir.2022Background
- Miguel Alvarado-Linares, an MS-13 member, was convicted under RICO conspiracy (18 U.S.C. §1962(d)) and four VICAR counts (18 U.S.C. §1959(a)) for two murders and two attempted murders; he was also convicted on four §924(c) firearm counts tied to those VICAR offenses.
- Jury was instructed using Georgia law: the VICAR murder counts were defined by Georgia malice murder (O.C.G.A. §16-5-1(a)); attempted murder counts were defined by Georgia attempted murder (O.C.G.A. §16-4-1).
- After conviction and sentencing (three concurrent life terms plus a consecutive 85 years driven solely by the §924(c) counts), Alvarado-Linares filed a §2255 motion arguing his §924(c) convictions were invalid post-United States v. Davis because the statute’s residual clause is void for vagueness and his VICAR predicates do not qualify under the elements clause.
- The government argued the VICAR murder and attempted murder predicates satisfy §924(c)(3)(A)’s elements clause (use/attempted use/threatened use of physical force), so Davis’s invalidation of the residual clause does not entitle relief.
- The district court denied relief; the Eleventh Circuit granted a COA limited to whether the §924(c) firearm convictions survive Davis and whether the VICAR predicates are crimes of violence under the elements clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §924(c) convictions are invalid after Davis because predicates used the residual clause | Davis renders §924(c) residual clause unconstitutional and Alvarado-Linares’s VICAR predicates do not qualify under the elements clause | VICAR murder and attempted murder qualify under the elements clause, so residual clause played no role | §924(c) convictions stand; VICAR murder and attempted murder are crimes of violence under the elements clause |
| Proper approach to identify the predicate offense elements (federal generic vs. state law) | Must look through VICAR to the underlying state-law definitions (Georgia malice murder) | Court should apply a federal/generic VICAR definition | Apply the modified categorical approach and consider the state-law elements/instructions actually used at trial |
| Whether attempted murder qualifies under the elements clause post-Taylor | Taylor suggests some attempt offenses fall outside elements clause; attempted murder might not qualify | Attempted murder requires intent to kill and a substantial step, thus necessarily involves attempted use of physical force | Attempted murder (Georgia and federal) is a crime of violence because it requires intent to kill plus a substantial step—an attempted use of force |
| Whether convictions premised on aiding and abetting can be "crimes of violence" | Aiding and abetting is not a separate federal crime and may not carry the elements clause requirement | Aider/abettor is punishable as a principal; thus aiding and abetting a crime of violence qualifies | Aiding and abetting convictions qualify as crimes of violence under §924(c)(3)(A) because aides are treated as principals |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (Supreme Court held §924(c)(3)(B) residual clause void for vagueness)
- Borden v. United States, 141 S. Ct. 1817 (2021) (recklessness-only mens rea does not satisfy elements clause)
- United States v. Taylor, 142 S. Ct. 2015 (2022) (an attempted Hobbs Act robbery conviction can fall outside §924(c) elements clause when completion can be by threat)
- United States v. Castleman, 572 U.S. 157 (2014) (defining "physical force" as force exerted by concrete bodies)
- Thompson v. United States, 924 F.3d 1153 (11th Cir. 2019) (federal second-degree murder is a crime of violence under the elements clause)
- United States v. Sanchez, 940 F.3d 526 (11th Cir. 2019) (intentional causation of bodily injury or death involves the use of physical force)
- In re Hammoud, 931 F.3d 1032 (11th Cir. 2019) (Davis announced a new substantive rule that applies retroactively to final convictions)
- Hylor v. United States, 896 F.3d 1219 (11th Cir. 2018) (state attempted first-degree murder qualifies as a violent felony under an elements-based clause)
- Resendiz-Ponce v. United States, 549 U.S. 102 (2007) (federal attempt requires intent plus a substantial step)