MIGUEL ALVARADO-LINARES, a.k.a. Joker, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
No. 19-14994
United States Court of Appeals For the Eleventh Circuit
August 16, 2022
Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket Nos. 1:19-cv-01962-RWS, 1:10-cr-00086-RWS-ECS-1
[PUBLISH]
Appeal from the United States District Court for the Northern District of Georgia D.C. Docket Nos. 1:19-cv-01962-RWS, 1:10-cr-00086-RWS-ECS-1
Before NEWSOM, BRANCH, and BRASHER, Circuit Judges.
This appeal presents a simple question with a surprisingly complicated answer: are murder and attempted murder crimes of violence?
Miguel Alvarado-Linares participated in several shootings as a member of MS-13, a violent gang. He was convicted of one count of conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO),
Alvarado-Linares filed a
In the district court and on appeal, the government argued that, despite Davis,
I.
Alvarado-Linares was a member of the violent MS-13 gang. To enhance his standing in the gang, he shot and killed L.K. and J.G. And he tried to kill two others.
A.
When Alvarado-Linares and his fellow gang members were prosecuted, the government charged Alvarado-Linares with conspiracy under the Racketeer Influenced and Corrupt Organizations Act (Count One) and committing four “violent crimes in aid of racketeering activity” (Counts Two, Four, Eight, and Ten). A person commits a violent crime in aid of racketeering when he commits a particular kind of violent crime—such as “murder“—“for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity.”
The government also charged Alvarado-Linares with four counts of using a firearm in relation to a “crime of violence,”
When instructing the jury on the VICAR counts, the trial court used the definition of Georgia malice murder to define the murder element.
The jury found Alvarado-Linares guilty of the conspiracy offense, the four VICAR offenses (Counts Two, Four, Eight, and Ten) and the four corresponding firearms offenses (Counts Three, Five, Nine, and Eleven). For the four firearms convictions, the jury specially found that Alvarado-Linares had carried and discharged the firearm during a crime of violence.
The district court sentenced Alvarado-Linares to life imprisonment on each of Counts One, Two, and Four, set to run concurrently. It sentenced him to twenty years each on Counts Eight and Ten, set to run concurrently with each other and with the three life sentences imposed for Counts One, Two, and Four. It sentenced him to ten years on Count Three and twenty-five years each on Counts Five, Nine, and Eleven, all to run consecutively to each other and to the life sentences. In total: three concurrent life sentences plus eighty-five years. Alvarado-Linares filed a direct appeal, and we affirmed his convictions and sentences.
B.
After his conviction became final, Alvarado-Linares filed a pro se Section 2255 motion, in which he argued that his firearms convictions were unconstitutional because Section 924(c)‘s residual clause is unconstitutionally vague. Alvarado-Linares argued that the Supreme Court‘s decision in Davis “substantially support[ed]” ground one of his pending Section 2255 motion. Specifically, Alvаrado-Linares argued that his VICAR murder and attempted murder convictions were not crimes of violence under Section 924(c)‘s still-constitutional elements clause.
The government argued that Davis did not help Alvarado-Linares because his underlying VICAR convictions satisfied the elements clause. “Because proof of Alvarado-Linares‘s VICAR predicate crime required the jury to find the use, attempted use, or threatened use of physical force, then the crime qualifies as a crime of violence under [the elements clause].”
The district court entered a single order denying Alvarado-Linares‘s claims. As relevant here, the district court agreed with the government that “because [Alvarado-Linares] was not sentenced under the residual clause . . . Davis does not apply to his case.” Alvarado-Linares then filed a motion for reconsideration. The district court denied the motion, explaining that because “Alvarado-Linares’ Section 924(c) convictions are all predicated on substantive VICAR offenses charging either murder or attempted murder . . . [he] was not sentenced under the residual clause of 924(c).”
We granted a certificate of appealability (COA) on one issue: whether Alvarado-Linares‘s Section 924(c) firearms convictions are unconstitutional in light of the Supreme Court‘s holding in Davis.
II.
When reviewing a district court‘s denial of a Section 2255 motion, we review questions of law de novo and factual findings for clear error. Steiner v. United States, 940 F.3d 1282, 1288 (11th Cir. 2019). Whether a particular offense is a crime of violence under
III.
Section 924(c) makes it a crime to use or carry a firearm “during and in relation to any crime of violence or drug trafficking crime.”
Turning to the case at hand, we certified one issue for appeal: whether Alvarado-Linares‘s firearms convictions are unconstitutional in light of the Supreme Court‘s holding in Davis. To resolve that question in his favor, Alvarado-Linares must “bear the burden of showing that he is actually entitled to relief on his Davis claim, meaning he will have to show that his § 924(c) conviction[s] resulted from application of solely the [now-unconstitutional] residual clause.” In re Hammoud, 931 F.3d at 1041; see also Beeman v. United States, 871 F.3d 1215, 1222–25 (11th Cir. 2017). Sometimes, this kind of question can be resolved by a “finding of historical fact“—in other words, there may be record evidence that the unconstitutional clause did or did not lead to a conviction or sentence. Williams v. United States, 985 F.3d 813, 816 (11th Cir. 2021). Sometimes, the question must be resolved “by reference to legal principles alone“—that is, parsing the state of the law to determine whether the residual clause affected the conviction оr sentence. Id.
Here, the parties agree that the answer to this question turns on legal principles alone. The government argues that VICAR murder and attempted murder are “crimes of violence” under the elements clause such that we can be confident the now-unconstitutional residual clause played no role in Alvarado-Linares‘s conviction for the corresponding firearm offenses; Alvarado-Linares argues the opposite. Unlike in some of our previous cases, e.g., Williams, 985 F.3d at 816, the parties do not distinguish between the state of the law at the time of the conviction and the state of the law today. So, to decide this appeal as the parties have litigated it, we must determine whether Alvarado-Linares‘s convictions for VICAR murder and attempted murder satisfy the elеments clause and have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
We divide our discussion into four parts. First, we hold that we must apply the “modified categorical approach” to determine
A.
We begin by addressing how to assess whether Alvardo-Linares‘s VICAR convictions have “as an element the use, attempted use, or threatened use of physical force.” Ordinarily, we use a categorical approach to determine whether a predicate offense is a “crime of violence” under the elements clause. United States v. Bates, 960 F.3d 1278, 1286 (11th Cir. 2020). That is, we ask whether the elements of the predicate offense in the statute denote a “crime of violence“; we do not look to the particular facts of the defendant‘s conduct or the specifics of the defendant‘s trial. Id. But when а statute is divisible—meaning it defines multiple potential crimes—we instead apply the modified categorical approach. Under this approach, we may look beyond the elements of the predicate offense to a limited class of documents—including the indictment, jury instructions, plea agreement, and plea colloquy—to determine which specific crime, with which elements, a defendant was convicted of. Id.
The parties agree that the VICAR statute is divisible, and they are right. A person commits a violent crime in aid of racketeering when he, “for the purpose of gaining entrance to or maintaining or increasing position in” a RICO enterprise, “murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to cоmmit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires to do so.”
Although they agree that the modified categorical approach governs, the parties disagree about how the modified categorical approach applies to Alvarado-Linares‘s convictions. The problem arises from the way Alvarado-Linares was charged and convicted. The VICAR statute criminalizes committing murder or attempted murder to advance a racketeering enterprise. But the indictment and the jury instructions in this case further defined “murder” as Georgia malice murder. So, which do we consider for the purposes of the modified categorical approach: the elements in the VICAR statute, the elements of state law murder, or something else?
Alvarado-Linares argues that we must look through the VICAR statute to the elements of the underlying state predicate crime, which is Georgia malice murder. The government responds that we should look only to the generic federal definition of “murder” as that term is used in the statute.
We believe, given the facts and circumstances of this case, that Alvarado-Linares
B.
We turn now to whether the jury convicted Alvarado-Linares of crimes of violence when it found in Counts Two and Four that he had committed Georgia malice murder in violation of the VICAR statute. To qualify as a crime of violence an offense must have as an element the use, attempted use, or threatened use of “physical force against the person or property of another.”
We have not yet considered whether Georgia malice murder is a crime of violence under Section 924(c)(3)‘s elements clause. We have, however, held that federal second-degree murder, defined as the “killing of a human being with malice aforethought,” is a crime of violence under Section 924(c)(3). Thompson v. United States, 924 F.3d 1153, 1158 (11th Cir. 2019) (citing
Our analysis in Thompson controls our determination here. Like the statute at issue in Thompson, Georgia‘s murder statute criminalizes killing another person with malice aforethought.
Alvarado-Linares argues that the Supreme Court‘s decision in Borden v. United States, 593 U.S. ___, 141 S. Ct. 1817 (2021) compels a different result. The Supreme Court in Borden held that offenses with a mens rea of recklessness, though they may involve the use of physical force, do not require that force be directed against another. The Court explained that a crime of violence involves “a deliberate choice of wreaking harm on another, rather than mere indifference to risk.” Id., at ___, 141 S. Ct. at 1830. Acсordingly, ordinary recklessness crimes are not crimes of violence under Section 924(c)‘s elements clause. Id.
Borden does not help Alvarado-Linares. Unlike the kinds of recklessness crimes discussed in Borden, Georgia malice murder must be committed with “malice aforethought“—either express or implied. Express malice is the “deliberate intention unlawfully to take the life of another human being[.]”
Alvarado-Linares argues that, no matter what the Georgia Supreme Court has said, it has in practice affirmed malice murder convictions for ordinary recklessness. But we think he is misreading Georgia caselaw. The Georgia Supreme Court‘s decisions affirming convictions for implied-malice murder involve very serious intentional crimes—not the “too common” recklessness that Borden excludes from its definition of violent crimes. See, e.g., Burney v. State, 845 S.E.2d 625, 632-33 (Ga. 2020) (affirming conviction where defendants, in the course of committing a burglary, held an elderly man at gunpoint and
In short, we continue to hold that murder is a “crime of violence” if it is defined as the unlawful killing of a human being with malice aforethought. See United States v. Begay, 33 F.4th 1081 (9th Cir. 2022) (en banc) (post-Borden holding malice murder to be a crime of violence). The Supreme Court has emphasized that we must consider “cоntext and purpose” when applying the categorical approach. Borden, 593 U.S., at ___, 141 S. Ct. at 1830. Accordingly, “we cannot forget that we ultimately are determining the meaning of the term ‘crime of violence.‘” Id. Malice murder meets the common, ordinary definition of a violent crime. Because implied-malice murder, the most innocent conduct criminalized by Georgia‘s malice murder statute, requires a mental state greater than ordinary recklessness, malice murder is a crime of violence under Section 924(c)‘s elements clause.
Having addressed Georgia law, we turn briefly back to federal law. Alvarado-Linares argues that both Georgia malice murder (i.e., the state predicate crime) and generic federal murder (i.e., the word as used in the VICAR statute) must qualify as crimes of violence under Section 924(c)(3) for his firearms convictions to stand under the elements clause. Assuming without deciding that Alvarado-Linares is correct that his convictions can stand only if the generic federal definition of murder contains an element of force (even though federal law murder was not charged in the indictment or instructed to the jury), we have little trouble concluding that a VICAR murder conviction predicated on federal murder also meets the definition of a crime of violence. Federal first and second-degree murder are each defined as “the unlawful killing of a human being with malice aforethought,” with first-degree murder additionally requiring an element of premeditation. See
C.
Turning to Counts Five and Eight, Alvarado-Linares argues that even if VICAR murder is a crime of violence under the elements clause, VICAR attempted murder is not. To determine whether Alvarado-Linares‘s VICAR attempted murder convictions satisfy the elements
We hold that it does. A person commits Georgia murder when he “unlawfully and with malice aforethought, either express of implied, causes the death of another human being.”
Alvarado-Linares argues that the Supreme Court‘s decision in United States v. Taylor, 596 U.S. ___, 142 S. Ct. 2015 (2022) alters this conclusion. There, the Supreme Court held that a conviction for attempted Hobbs Act robbery did not qualify as a crime of violence under Section 924(c)‘s elements clause. Id., at ___, 142 S. Ct. at 2020–21. One element of completed Hobbs Act robbery is that a defendant take property “by means of actual or threаtened force.”
We think Taylor is distinguishable. We read Taylor to hold that, where a crime may be committed by the threatened use of force, an attempt to commit that crime—i.e., an attempt to threaten—falls outside the elements clause. But, unlike Hobbs Act robbery, a criminal cannоt commit murder by threat. Instead, the completed crime of murder always requires the use of physical force “because it is
Attempting to avoid this common-sense conclusion, Alvarado-Linares suggests that the substantial step element of attempted murder in Georgia can be satisfied by acts that do not themselves involve the use, attempted use, or threatened use of physical force. In support he cites several decisions by Georgia courts affirming convictions for attempted murder where a defendant engaged in murder-for-hire. See, e.g., Howell v. State, 278 S.E.2d 43, 46-47 (Ga. App. 1981) (affirming defendant‘s conviction for attempted murder where he met with someone he believed was a professional hitman, gave him a description of the victim, the victim‘s tag number, a map of her neighborhood, and five-hundred dollars). In these decisions, the substantial step taken toward the completеd crime of murder involved one or more of the following acts: contacting a potential hitman, identifying a victim, negotiating a price, or exchanging money. Alvarado-Linares argues that because these substantial steps do not involve actual, attempted, or threatened force, that these decisions establish that Georgia attempted murder does not involve the attempted use of force.
Alvarado-Linares is wrong. The elements clause defines the “attempt” to use force against another person as a crime of violence, and the hornbook criminal-law definition of “attempt” is a (1) substantial step plus (2) intent. See, e.g., 2 W. LaFave, Substantive Criminal Law § 11.4; Model Penal Code § 5.01 (1985). See also United States v. Resendiz-Ponce, 549 U.S. 102, 107 (2007) (“as used in the law for centuries, [attempt] encompasses bоth the overt act and intent elements“). Accordingly, when a crime has as an element a substantial step plus intent to use force against another person, that crime has as an element the “attempted use . . . of physical force against the person of another.” See
We believe that the conduct in the decisions cited by Alvarado-Linares (such as locating and negotiating with a hitman, exchanging money, etc.), which led to convictions for completed or attempted murder-for-hire, illustrates this point. As previously discussed, we have held that completed murder—whether by hire or
D.
Finally, Alvarado-Linares argues that his VICAR murder and attempted murder convictions cannot qualify as crimes of violence because the government prosecuted him on an aiding and abetting theory. Again, we disagree. Our precedents establish that aiding and abetting offenses can qualify as crimes of violence under Section 924(c). 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.” In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016) (internal quotation marks omitted) (holding that the defendant‘s conviction for aiding and abetting a Hobbs Act robbery was a “crime of violence” under Section 924(c)(3)(A)). This is because aiding and abetting “is not a separate federal crime, but rather an alternative charge that permits one to be found guilty as a principal for aiding or procuring someone else to commit the offense.” Id. (quoting United States v. Sosa, 777 F.3d 1279, 1292 (11th Cir. 2015)). And one who “aids, abets, counsels, commands, induces or procures” the commission of an offense is punishable as a principal. Id. (quoting United States v. Williams, 334 F.3d 1228, 1232 (11th Cir. 2003)). Accordingly, even though Alvarado-Linares‘s VICAR murder and attempted murder convictions were premised on an aiding and abetting theory, they are nevertheless crimes of violence under Section 924(c).
IV. CONCLUSION
For these reasons, we hold that Alvarado-Linares‘s VICAR convictions (Counts Two, Four, Eight, and Ten), predicated on his commission of murder and attempted murder, qualify as crimes of violence under Section 924(c)‘s elements clause. That means that his corresponding firearms convictions (Counts Three, Five, Nine, and Eleven) are still valid after Davis‘s holding that the residual clause is unconstitutional. And that means that, after Alvarado-Linares completes his three concurrent life sentences, he will still have a consecutive eighty-five-year sentence left to serve.
We AFFIRM the district court‘s denial of Alvarado-Linares‘s Section 2255 motion.
NEWSOM, Circuit Judge, concurring:
I concur in the Court‘s decision and join its opinion in full. I write separately simply to ask whether the “categorical approach” to identifying “crime[s] of violence” has, to use a technical term of art, jumped the shark. This case, in particular, really makes me wonder.
Miguel Alvarado-Linares, a “local leader” of the notorious street gang MS-13,
For his actions, Alvarado-Linares was indicted, convicted, and sentenced in federal court on two counts of “VICAR” murder and two counts of attempted VICAR murder—more on those shortly—as well as four corresponding counts of using a firearm in connection with “crime[s] of violence” within the meaning of
In correctly holding that it does, the Court dutifully applies a version of the so-called “categorical approach.” To that end, the Court meticulously examines the constituent elements of the particular crimes of which Alvarado-Linares was convicted—VICAR murder and attempted VICAR murder, charged in this case by reference to underlying Georgia-law definitions and conceptions of “malice murder.” See Maj. Op. at 10–23. In making that assessment, the Court hacks and hews its way through the weeds of statutory definitions and state-court caselaw. So, for instance, the Court considers whether and under what circumstances causing another‘s death “indirect[ly]” can constitute the use of “physical force,” whether the application of such force with “malice aforethought” is sufficiently directed “against the person . . . of another,” whether the malice-aforethought standard is different enough from “mere recklessness,” whether it matters if the malice is “express” or “implied,” and whether the Georgia implied-malice cases involve the requisite evidence of intentionality. See Maj. Op. at 13-18.
It seems to me that the Court is having to work way too hard to answer what, as it says, should be—and in the real world is—an exceedingly “simple question“: “[A]re murder and attempted murder crimes of violence?” Maj. Op. at 2. And to be clear, it‘s not just that we‘re talking about murder—although it certainly is that. See, e.g., United States v. Begay, 934 F.3d 1033, 1042 (9th Cir. 2019) (Smith, J., dissenting) (“MURDER in the second-degree is NOT a crime of violence??? . . . How can this be?“), overruled, 33 F.4th 1081 (9th Cir. 2022). And it‘s not just that Alvarado-Linares “directed and participated in” оne “execution-style murder” and “directed” a second—although it certainly is that. It‘s that this case specifically involves VICAR murder and requires us to decide whether VICAR murder constitutes a “crime of violence.”
So what exactly is VICAR murder? The acronym “VICAR” stands for “Violent Crime in Aid of Racketeering.” To be clear, then, the question before us—with respect to which categorical-approach precedent requires so much toil—is whether an offense denominated as a “[v]iolent [c]rime” constitutes a “crime of violence.” To ask the question is—or should be—to answer it. And while the offense‘s title nicely tees up the seeming obviousness of the conclusion that VICAR murder is a “crime of violence,” there‘s more where that came from. As it turns out, the VICAR
In relevant part, the VICAR statute provides as follows:
Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished . . . .
The VICAR statute thus separately criminalizes two categories of conduct. In what I‘ll call the first clause, it prohibits performing any of several specified actions: “Whoever . . . murders, kidnaps, maims, [or] assаults . . . .”
Consequently, the VICAR statute itself—to say nothing of its conspicuously suggestive title—indicates that VICAR offenses, including most notably VICAR murder, are indeed “crime[s] of violence.” And that conclusion is only strengthened by the fact that the VICAR statute and § 924(c) were enacted as neighboring provisions of the very same piece of legislation, the Comprehensive Crime Cоntrol Act of 1984. See
As others have noted, the categorical approach can sometimes lead to “unjust or absurd” results. United States v. Valdivia-Flores, 876 F.3d 1201, 1211 (9th Cir. 2017) (O‘Scannlain, J., concurring). Today‘s result is entirely sensible, but the route required to reach it seems no less absurd. If ever there were a case that epitomized the categorical approach‘s “endless gauntlet of abstract legal questions,” United States v. Dr., 842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson, J., concurring), this is it. It seems to me glaringly obvious that VICAR offenses—VICAR murder most prominently among them—are “crime[s] of violence” within the meaning of