DEVAUGHN DORSEY V. USA, No. 22-35030 (9th Cir. 2023)
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Defendant appealed the district court’s denial of leave to amend his motion to vacate his convictions under 28 U.S.C. Section 2255. He argued that neither witness tampering by attempting to kill a witness nor witness tampering by use of force is a crime of violence as defined by 18 U.S.C. Section 924(c)(3)(A).
The Ninth Circuit affirmed. Applying the categorical approach, the panel held that Section 1512, as a whole, is not categorically a crime of violence because it criminalizes conduct that does not necessarily require physical force. The panel then applied the modified categorical approach because Section 1512 contains several, alternative elements of functionally separate crimes that carry different penalties, and the statute therefore is “divisible.” The panel held that Dorsey was convicted under a divisible part of the witness-tampering statute that qualifies as a crime of violence under Section 924(c)’s elements clause: either attempted killing in violation of Section 1512(a)(1) or use of force in violation of 1512(a)(2). The panel also held that the use of physical force in violation of Section 1512(a)(2) is a categorical match with Section 924(c)’s elements clause because it requires proving that the defendant intentionally used physical force against another.
Court Description: 28 U.S.C. § 2255. The panel affirmed the district court’s order denying Devaughn Dorsey’s motion to amend his 28 U.S.C. § 2255 motion to vacate his convictions for witness tampering (18 U.S.C. § 1512(a)(1)-(2)) and discharging a firearm during and in relation to a crime of violence (18 U.S.C.
§ 924(c)(1)(A)(iii)), to add a claim that witness tampering is not a predicate crime of violence under § 924(c).
Under the elements clause of § 924(c), a crime of violence is defined as a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” To satisfy the elements clause, the predicate crime must require purposeful or knowing acts. Applying the categorical approach, the panel held that § 1512, as a whole, is not categorically a crime of violence because it criminalizes conduct that does not necessarily require physical force.
The panel then applied the modified categorical approach because § 1512 contains several, alternative elements of functionally separate crimes that carry different penalties, and the statute therefore is “divisible.” The panel held that Dorsey was convicted under a divisible part of the witness-tampering statute that qualifies as a crime of violence under § 924(c)’s elements clause: either attempted killing in violation of § 1512(a)(1) or use of force in violation of 1512(a)(2). Distinguishing United States v. Taylor, 142 S. Ct. 2015 (2022) (attempted Hobbs Act robbery does not qualify as a crime of violence under § 924(c)’s elements clause), the panel held that attempting to kill another person in violation of § 1512(a)(1) is a crime of violence under § 924(c) because it has the required element of force, and it satisfies § 924(c)’s mens rea requirement because it requires proving that the defendant intentionally used or attempted to use physical force against another. The panel also held that the use of physical force in violation of § 1512(a)(2) is a categorical match with § 924(c)’s elements clause because it requires proving that the defendant intentionally used physical force against another.
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