MARVIN NICHOLSON (21-1768); BRYAN SORRELL (21-1779) v. UNITED STATES OF AMERICA
Nos. 21-1768/1779
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
August 16, 2023
23a0183p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Argued: July 20, 2023.
Before: GILMAN, LARSEN, and NALBANDIAN, Circuit Judges.
COUNSEL
ARGUED: Michael J. West, HOGAN LOVELLS US LLP, Washington, D.C., for Appellant in 21-1768. Jeremy Gordon, JEREMY GORDON, PLLC, Mansfield, Texas, for Appellant in 21-1779. Mark Chasteen, UNITED STATES ATTORNEY‘S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Michael J. West, HOGAN LOVELLS US LLP, Washington, D.C., for Appellant in 21-1768. Jeremy Gordon, JEREMY GORDON, PLLC, Mansfield, Texas, for Appellant in 21-1779. Mark Chasteen, UNITED STATES ATTORNEY‘S OFFICE, Detroit, Michigan, for Appellee.
OPINION
NALBANDIAN, Circuit Judge. An indictment charged motorcycle-gang members Marvin Nicholson and Bryan Sorrell with one count of conspiracy and one count of aiding-and-abetting assault under the Violent Crimes in Aid of Racketeering (“VICAR“) statute. At trial, the district court instructed the jury that either of those two offenses could serve as a predicate offense for another count involving the use or carrying of a firearm during and in relation to a crime of violence under
I.
As “national enforcer,” Marvin Nicholson oversaw gang members like Bryan Sorrell in the Phantom Motorcycle Club (“PMC“)—an outlaw motorcycle gang and multi-state racketeering enterprise. United States v. Nicholson, 716 F. App‘x 400, 404, 408 (6th Cir. 2017). To grow PMC‘s reputation as the “toughest” or “baddest” outlaw motorcycle club out there, Nicholson, Sorrell, and the rest of the gang targeted rival clubs in a series of confrontations, forcefully stripping them of their leather biker vests (known as “rags“)—“the ultimate sign of disrespect.” Id. at 404. And these assaults involved violence and the use of firearms.
When a dispute left a PMC leader feeling disrespected, Nicholson and other leaders got a team together and outlined a plan to locate rival gang members and “take [their] rags by force.” Id. at 409. And it didn‘t take long for the team to gather firearms and drive to a rival clubhouse. A stakeout spanning several hours almost proved unsuccessful. That is, up until Nicholson, Sorrell, and some others spotted a rival gang member, Leon McGee, heading to his vehicle with his girlfriend. Sorrell and another PMC member approached McGee and attempted to take his rags. When McGee and his girlfriend attempted to get into their vehicle and leave, the PMC members pulled McGee out of his vehicle. And a fight ensued. Sorrell punched McGee. McGee stabbed Sorrell. So Sorrell shot McGee. And he fired multiple times, even striking McGee‘s face.1 Nicholson
Weeks later, two PMC members fell victim to a drive-by shooting by a rival gang, and one PMC member died of his wounds. PMC‘s president wanted revenge. So he held a meeting with Nicholson, Sorrell, and others to plan the murder of three rival gang members as part of a larger scheme to “attack and kill a large number of” other rival members who would later attend the murdered members’ funerals. Id. at 409–10. With that as the gameplan, “Nicholson dispensed orders to PMC members to carry out the first murder, and Nicholson and other PMC members began preparations.” Id. at 410.
But the plans fell through. Law enforcement executed search warrants on Nicholson‘s residence and took him into custody. And later, an indictment charged Nicholson and Sorrell with several counts—some arising under VICAR.
Of relevance were Counts Five, Six, and Seven. Count Five charged Nicholson and Sorrell with VICAR aiding-and-abetting assault with a dangerous weapon, in violation of
Count Seven charged them with using and carrying a firearm during and in relation to a crime of violence, in violation of
In any event, the jury convicted Nicholson and Sorrell on Counts Five, Six, and Seven, among others. For Count Seven, the district court sentenced them each to 120 months of imprisonment, to be served consecutively to their sentences on the other counts. And in total, the court sentenced Nicholson to 480 months and Sorrell to 252 months of imprisonment.
They both appealed. And this Court affirmed their convictions and sentences. Nicholson, 716 F. App‘x at 423. Later, Nicholson and Sorrell moved to vacate their convictions under
II.
Under
III.
Nicholson and Sorrell (“Petitioners“) raise two issues on appeal. First, they argue that the district court erred in concluding that Count Seven rested on a valid crime-of-violence predicate under
A.
Petitioners first argue that we should reverse and vacate their conviction on Count Seven because it was not predicated on a valid crime of violence. The district court instructed the jury that it could convict Petitioners on Count Seven if it found either (1) a VICAR conspiracy or (2) a VICAR aiding-and-abetting assault with a dangerous weapon—both of which the jury separately found Petitioners guilty of in Counts Five and Six. So our first inquiry turns on whether either offense constitutes a “crime of violence,” as required by Count Seven.
So now, we look only to the provision‘s “elements clause” to define a “crime of violence.” And that clause defines the phrase as an “offense that is a felony and . . . has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
Additionally, courts must evaluate whether an offense fits the “elements clause” using the “categorical approach“—meaning that we look to a predicate crime‘s elements in the abstract, not to “how any particular defendant may commit the crime.” United States v. Taylor, 142 S. Ct. 2015, 2020 (2022). We must ask whether the predicate offense in “every” case will have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Wallace v. United States, 43 F.4th 595, 601 (6th Cir. 2022) (quoting
Using this framework, we must determine whether a VICAR conspiracy or a VICAR aiding-and-abetting assault with a dangerous weapon qualifies as a “crime of violence” under
1.
Start with VICAR conspiracy. See
Since the Supreme Court‘s decision in United States v. Davis, this Court has determined that
So too here. The VICAR conspiracy at issue required that the jury find a few things—none of which involved the use, attempted use, or threatened use of physical force. To convict Petitioners, the jury had to find that PMC was an “enterprise” “engaged in racketeering activity” in “interstate or foreign commerce“; and that while Petitioners had “positions” in PMC, they “conspire[d] to commit a crime involving . . . assault with a dangerous weapon” for the “purpose of . . . maintaining or increasing [their] position[s] in” PMC.
Not one of those findings satisfies
2.
Given that a VICAR conspiracy isn‘t a crime of violence, we turn to whether a VICAR aiding-and-abetting assault with a dangerous weapon is. The short answer: it is.
We again must see if an element of the offense requires the “use, attempted use, or threatened use of physical force.”
To find Petitioners guilty of that predicate offense, the jury had to find, among other things, that someone completed a VICAR assault. That‘s because unlike a conspiracy or attempt—which are separate, inchoate offenses—aiding and abetting is a theory of liability that requires the jury to find a completed, principal offense. See Rosemond v. United States, 572 U.S. 65, 70–71 (2014); United States v. Gardner, 488 F.3d 700, 713 (6th Cir. 2007) (recognizing that an aiding-and-abetting conviction “depends first” on whether someone the defendant helped “could have been convicted of violating [the offense] as [a] principal[]“).
In other words, Petitioners couldn‘t be said to “aid” or “abet” an offense if no offense had ever been completed. That‘s why, as with every aiding-or-abetting crime, “the jury [had to] find that all essential elements of the underlying crime were committed by someone.” United States v. Horton, 847 F.2d 313, 322 (6th Cir. 1988); see also Sixth Circuit Pattern Criminal Jury Instructions, § 4.01(2) (requiring the jury to find “that the crime of [the principal offense] was committed” to convict someone as an “aider and abettor“).3
When “[l]ook[ing] at the elements of the underlying crime,” we can see that the VICAR aiding-and-abetting provisions,
So we know that the principal offense here—VICAR assault with a dangerous weapon—qualifies as a crime of violence. And we know that the jury had to find that a VICAR assault occurred to convict Petitioners of VICAR aiding-and-abetting assault. That means the jury had to find a crime of violence as an element of the conviction.
The next question then is whether any distinction exists between aiding and abetting the commission of a crime and committing that principal offense. It doesn‘t. See United States v. Richardson, 948 F.3d 733, 741–42 (6th Cir. 2020). That‘s because “[a]iding and abetting is simply an alternative theory of liability indistinct from the substantive crime.” Id.; see also Alvarado-Linares v. United States, 44 F.4th 1334, 1348 (11th Cir. 2022) (“One who aids and abets a crime of violence ‘necessarily commits a crime that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.‘” (citation omitted)); United States v. Worthen, 60 F.4th 1066, 1070 (7th Cir. 2023).
Thus, VICAR aiding-and-abetting assault with a dangerous weapon qualifies as a crime of violence because an element of the offense requires a finding of the use or threatened use of physical force. And we affirm Count Seven under that predicate offense.
Petitioners’ arguments to the contrary do not persuade us otherwise. To start, they argue that the Supreme Court‘s treatment of an attempt crime in United States v. Taylor suggests that aiding-and-abetting crimes do not qualify as crimes of violence. See 142 S. Ct. 2015 (2022). That‘s not the case. Taylor held that “attempted” Hobbs Act robbery does not satisfy
Taylor does not counsel against holding that VICAR aiding-and-abetting assault with a dangerous weapon is a crime of violence. That‘s because an attempt at an incomplete crime can differ from aiding and abetting a completed crime. See United States v. Stevens, 70 F.4th 653, 661 (3d Cir. 2023) (recognizing the “distin[ction] [between]
And Taylor says nothing otherwise about aiding and abetting a completed offense. Instead, the case affirms that this Court has a “straightforward job: Look at the elements of the underlying crime and ask whether they require the government to prove the use, attempted use, or threatened use of force.” Taylor, 142 S. Ct. at 2025. And in doing so, we find that
Next, Petitioners try to redefine the elements of VICAR aiding-and-abetting assault with a dangerous weapon. Rather than focus on the completed principal offense, they rely on Rosemond v. United States for the premise that “a person is liable under
Petitioners also try to add to the requirements of
But
So Petitioners’ argument falls flat. Cf. United States v. Harrison, 54 F.4th 884, 890 (6th Cir. 2022) (rejecting a similar argument when defining a “violent felony” because
And Taylor does not require that we hold otherwise. Although the defendant-specific showing that Petitioners advocate for (i.e., a predicate offense requiring that the defendant himself use force) could form a crime of violence,
And even if Taylor did change the focus of “use of force” more generally to what the defendant does (again, it didn‘t), courts have long held that aiders and abettors are as culpable as principal offenders for the principal offenders’ conduct. See, e.g., Twitter, Inc. v. Taamneh, 143 S. Ct. 1206, 1218 (2023) (noting that “such common-law terms” like aiding and abetting “bring the old soil with them” (cleaned up)); Rosemond, 572 U.S. at 70 (explaining that
B.
Petitioners next argue that, even if VICAR aiding-and-abetting assault with a dangerous weapon qualifies as a crime of violence (it does), we should still vacate their conviction on Count Seven because the jury did not explicitly answer what predicate offense met
Recall that the district court gave the jury two choices of what could qualify as a “crime of violence” under Count Seven: Count Five‘s VICAR aiding-and-abetting assault with a dangerous weapon and Count Six‘s VICAR conspiracy. And because the court didn‘t instruct the jury to unanimously agree on what count(s) qualified, the jury returned a general verdict on Count Seven—it did not answer whether Petitioners “use[d] and carr[ied] a firearm during and in relation to” Count Five, Count Six, or both counts. (R. 467, Jury
The question then becomes whether Petitioners’ Count Seven “conviction under a general verdict . . . may have rested on an unlawful ground.” Baugh v. United States, 64 F.4th 779, 781 (6th Cir. 2023) (citing Stromberg v. California, 283 U.S. 359, 368 (1931)). To answer that, our Circuit‘s recent decision in Baugh v. United States provides a harmless-error framework. See id. at 781–82, 784 (holding that an error “was harmless where the jury convicted a defendant of two different offenses on which it might have predicated his
To start, we determine whether an error occurred. Id. at 781. And here, it did. “[T]he jury was instructed that it could base [Petitioners‘] conviction[s] for the
Because Petitioners “seek[] federal habeas relief under [
To get relief,
In other words, the error (of instructing the jury that an invalid predicate could support a
Errors, however, might not be harmless when “the invalid predicate offense encompassed conduct beyond the scope of the valid predicate offense.” Baugh, 64 F.4th at 783. That‘s because, in such a situation, the jury might have “convicted the defendant of possessing a gun in furtherance of [only] the invalid predicate.” Id. at 782. With that in mind, we turn to see what conduct underlaid the invalid predicate (Count Six) and the valid predicate (Count Five) here.
Petitioners argue that it is “impossible to tell” whether the jury unanimously relied on a valid predicate when making its general verdict. Yates v. United States, 354 U.S. 298, 312 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1 (1978). But looking at the
Both counts arose from the same scheme, involving the use or carrying of a firearm during and in relation to those two predicates. As the indictment and jury instructions specified, Count Five and Count Six both pertained to the assault on rival gang member Leon McGee “[o]n or about September 8-9.” (R. 201, Indictment, p. 23–24; see also R. 467, Jury Instructions, PageID 5796, p. 67–68, 71.) Count Six alleged that Petitioners conspired to assault McGee‘s gang while using a dangerous weapon. And Count Five alleged the completion of that conspiracy—an assault on McGee. Given that each count arose from the same common facts underlying the same assault, Petitioners’ “participation in the conspiracy” to assault McGee‘s gang “was inextricably intertwined with [their] participation” in following through with that assault on McGee. Baugh, 64 F.4th at 783. Thus, “any gun possession in furtherance of the conspiracy” to assault McGee‘s rival gang (the invalid Count Six predicate) “was necessarily also in furtherance of” aiding and abetting the shooting of McGee (the valid Count Five predicate). Id.
As a result, the error here did not have a “substantial and injurious effect or influence in determining the jury‘s verdict.” Id. at 782 (citation omitted). Said otherwise, Petitioners have not shown that their VICAR conspiracy conviction “encompassed conduct beyond the scope of” their VICAR aiding-and-abetting assault with a dangerous weapon. Id. at 783. So the error didn‘t “substantially influence[] the jury‘s decision.” O‘Neal v. McAninch, 513 U.S. 432, 436 (1995). And we don‘t have “grave doubt” about the error‘s harmlessness. Dimora v. United States, 973 F.3d 496, 505 (6th Cir. 2020) (citation omitted). For these reasons, Petitioners are not entitled to vacatur on Count Seven.
Petitioners make a series of arguments—none of which move the needle. First, in reviewing the jury-instruction error, Petitioners argue that we should use a “modified categorical” approach when looking at Counts Five and Six instead of a “harmless error” approach.7 Under that approach, courts interpret the “least serious conduct” in a statute‘s elements to see if a conviction qualifies as a crime of violence. Borden v. United States, 141 S. Ct. 1817, 1832 (2021). And so, analogizing to how we interpret a statute, Petitioners want us to apply the modified categorical approach when analyzing the jury-instruction error so that we take Count Six—the invalid predicate and “least serious conduct” criminalized by the jury instructions on Count Seven—as the basis for their
Indeed, we don‘t need to apply a modified categorical approach to assess the jury-instruction error because we have already used it for its proper purpose: determining what crime qualifies as a crime of violence (Count Five) and what crime does not (Count Six). See supra Part III.A.1–2. And with that done, we have no further need to “employ the categorical approach [or the modified categorical approach] because each offense has already been categorized appropriately.” United States v. Reed, 48 F.4th 1082, 1089 (9th Cir. 2022), cert. denied, 143 S. Ct. 1044 (2023); see Stone v. United States, 37 F.4th 825, 829–31 (2d Cir.), cert. denied, 143 S. Ct. 396 (2022).
Instead, after determining the “crime of violence” issue, all that was left to do was turn to the next issue: review the record and jury instructions for harmless error.10 See Baugh, 64 F.4th at 782–83. And Petitioners cite no authority that justifies extending the categorical approach to a “jury-instruction error” context. So, for the reasons we‘ve explained, the modified categorical approach has no application here.
Petitioners’ next argument is that Baugh‘s approach does not bind us in this case because the valid predicate in Baugh was a drug-trafficking crime—not a crime of violence as here. See id. at 783 (involving a cocaine conspiracy). They reason that the difference matters because a crime of violence and a drug-trafficking crime are distinct types of predicates.
But this is a distinction without a difference. That‘s because both a “crime of violence” and a “drug trafficking crime” serve as valid predicates under
Petitioners also argue that Baugh‘s framework should not apply because the Brecht harmless-error approach raises Sixth Amendment concerns, such as judicial “factfinding” and “guesswork” on the sufficiency of the evidence supporting Petitioners’ convictions. (21-1768 Appellant Br. at 30, 33). Not so. Brecht‘s harmless-error approach applies to situations (as here) where a criminal defendant challenges instructional errors on collateral review. See Hedgpeth, 555 U.S. at 61 (“An instructional error arising in the context of multiple theories of guilt no more vitiates all the jury‘s findings than does omission or misstatement of an element of the offense when only one theory is submitted.“); Baugh, 64 F.4th at 782 n.1.
And Baugh already addressed Petitioners’ Sixth Amendment concerns. It noted that the harmless-error analysis “necessarily consists in drawing inferences from the record about what the jury concluded.” Baugh, 64 F.4th at 782 n.2. In reviewing a claim, we don‘t determine whether “sufficient evidence supports the conviction.” Id. Rather, we determine whether “the record affords no basis for the jury to distinguish between gun possession in furtherance of a valid and an invalid predicate offense.” Id. And we will find an “error [] harmless [if] it did not affect the jury‘s verdict.” Id.
So rather than engaging in judicial fact-finding, applying harmless-error review here merely requires us to assess the conduct underlying the predicate crimes of which Petitioners were already convicted by a unanimous jury. On top of that, the “inextricably intertwined” test for finding harmless error alleviates concerns about the certainty of Petitioners’
IV.
For these reasons, we affirm.