23 F.4th 1277
10th Cir.2022Background
- Petitioners Sitamipa Toki, Eric Kamahele, and Daniel Maumau were convicted at joint trial of VICAR offenses (18 U.S.C. § 1959) based on Utah and Arizona aggravated-assault statutes, and separately convicted under 18 U.S.C. § 924(c) for using or carrying a firearm during crimes of violence.
- The state assault statutes underlying the VICAR convictions can be violated with a mens rea of recklessness; the government conceded this.
- The § 924(c) convictions rested on those VICAR predicates; Kamahele and Maumau also had § 924(c) counts based on Hobbs Act robbery.
- On initial collateral review and appeal the § 924(c) challenges were rejected in light of circuit precedent (United States v. Mann). The Supreme Court granted certiorari, vacated the Tenth Circuit judgment, and remanded in light of Borden v. United States.
- The government concedes Borden applies to § 924(c)’s elements clause and that Borden’s new rule is retroactive; the court held Borden requires vacatur of petitioners’ § 924(c) convictions that rely on VICAR predicates that can be committed recklessly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an offense that can be committed recklessly is a "crime of violence" under § 924(c)(3)(A) (elements clause) | Petitioners: Reckless offenses do not meet the elements-clause requirement that force be "directed at" another | Government: Prior circuit law treated Mann as holding elements clause can include reckless offenses | Court: Borden controls; offenses that can be committed recklessly are not categorically crimes of violence under § 924(c)(3)(A) |
| Whether Borden’s rule applies to § 924(c) (mens rea parity with ACCA) | Petitioners: Borden’s reasoning applies to § 924(c) because its elements clause is nearly identical to ACCA’s | Government: Concedes Borden applies in kind to § 924(c) | Court: Borden applies; Mann is overruled to the extent it held otherwise |
| Retroactivity of Borden on collateral review | Petitioners: Borden announces a substantive rule narrowing statute and should apply retroactively | Government: Concedes retroactivity | Court: Borden announces a substantive rule and applies retroactively; petitioners entitled to collateral relief |
| Remedy—whether VICAR-based § 924(c) convictions must be vacated | Petitioners: Vacatur required because VICAR predicates are not crimes of violence post-Borden | Government: Concedes VICAR predicates fail under Borden; maintains Hobbs Act-based § 924(c) convictions remain valid | Court: Vacated § 924(c) convictions predicated on VICAR; affirmed other portions including Hobbs Act-based § 924(c) convictions |
Key Cases Cited
- Borden v. United States, 141 S. Ct. 1817 (2021) (an offense that can be committed recklessly does not categorically qualify under ACCA’s elements clause)
- United States v. Davis, 139 S. Ct. 2319 (2019) (§ 924(c)(3)(B) residual clause is unconstitutionally vague)
- United States v. Bowen, 936 F.3d 1091 (10th Cir. 2019) (Davis announced a new substantive rule retroactive on collateral review)
- United States v. Mann, 899 F.3d 898 (10th Cir. 2018) (prior Tenth Circuit decision construed § 924(c)(3)(A) to reach some reckless offenses; limited by Borden)
- United States v. Melgar-Cabrera, 892 F.3d 1053 (10th Cir. 2018) (Hobbs Act robbery is a crime of violence under § 924(c))
- Schriro v. Summerlin, 542 U.S. 348 (2004) (new substantive rules generally apply retroactively)
- Teague v. Lane, 489 U.S. 288 (1989) (default rule that new procedural rules do not apply retroactively)