Devaughn Dorsey v. United States ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEVAUGHN DORSEY, No. 22-35030
Petitioner-Appellant, D.C. Nos.
2:14-cv-00938-
v. RSL
2:08-cr-00245-
UNITED STATES OF AMERICA, RSL-1
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted July 12, 2023
Seattle, Washington
Filed August 11, 2023
Before: Susan P. Graber, Ronald M. Gould, and Michelle
T. Friedland, Circuit Judges.
Opinion by Judge Graber
2 DORSEY V. USA
SUMMARY *
28 U.S.C. § 2255The panel affirmed the district court’s order denying
Devaughn Dorsey’s motion to amend his 28 U.S.C. § 2255motion 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.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DORSEY V. USA 3
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.
COUNSEL
Matthew M. Robinson (argued), Robinson & Brandt PSC,
Covington, Kentucky, for Petitioner-Appellant.
Michael S. Morgan (argued) and Teal L. Miller, Assistant
United States Attorneys; Nicholas W. Brown, United States
Attorney; United States Attorney’s Office, Seattle,
Washington; for Respondent-Appellee.
4 DORSEY V. USA
OPINION
GRABER, Circuit Judge:
Defendant Devaughn Dorsey timely appeals the district
court’s denial of leave to amend his motion to vacate his
convictions under 28 U.S.C. § 2255. He argues that neither
witness tampering by attempting to kill a witness, in
violation of 18 U.S.C. § 1512(a)(1), nor witness tampering
by use of force, in violation of 18 U.S.C. § 1512(a)(2), is a
crime of violence as defined by 18 U.S.C. § 924(c)(3)(A).
We disagree and, accordingly, affirm.
FACTUAL AND PROCEDURAL HISTORY
In 2009, the government indicted Defendant on twenty-
two counts in connection with a scheme to traffic in stolen
motor vehicles. Defendant pleaded guilty to the first twenty
counts, which included charges of conspiracy, trafficking in
motor vehicles, and operating a chop shop. But Defendant
pleaded not guilty to two charges: witness tampering, in
violation of 18 U.S.C. § 1512(a)(1)–(2), and discharging a
firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(iii). Both charges
rested on the allegation that Defendant shot a grand jury
witness to prevent her from testifying.
In 2010, a jury convicted Defendant on both the witness
tampering charge and the § 924(c) charge. The district court
imposed a total sentence of 48 years, which included a 30-
year sentence for witness tampering and a consecutive 18-
DORSEY V. USA 5
year sentence for the § 924(c) conviction. 1 We affirmed his
conviction on direct appeal, United States v. Dorsey, 677
F.3d 944 (9th Cir. 2012), cert. denied, 570 U.S. 919 (2013),
and later affirmed the district court’s denial of Defendant’s
motion for a new trial, United States v. Dorsey, 781 F. App’x
590 (9th Cir. 2019).
In 2014, Defendant timely filed a motion to vacate his
convictions under 28 U.S.C. § 2255. Over the following
seven years, his counsel filed several motions to amend, and
Defendant filed several pro se motions to amend. In an
omnibus order, the district court denied Defendant’s original
motion, denied several of Defendant’s motions to amend,
and struck the remainder of his motions to amend.
Relevant to this appeal, the district court denied leave to
add a claim that witness tampering is not a crime of violence
under § 924(c). The court presumed that the claim was
timely and that Defendant could overcome procedural
default. The court denied leave to amend solely on the
ground that Defendant’s claim could not succeed on the
merits, holding that “committing witness tampering by
attempting to kill a person is categorically a ‘crime of
violence’ under § 924(c)(3)’s elements clause.”
We granted Defendant’s request for a certificate of
appealability with respect to one issue: “whether witness
tampering is a qualifying crime of violence under 18 U.S.C.
§ 924(c).”
1
The sentences that the court imposed on the other counts all ran
concurrently with each other and with Defendant’s sentence for the
witness-tampering conviction.
6 DORSEY V. USA
STANDARDS OF REVIEW
In general, we review for abuse of discretion the denial
of a request to amend a § 2255 motion. United States v.
Jackson, 21 F.4th 1205, 1216 (9th Cir. 2022). But when the
denial of leave to amend rests on the ground of futility, as it
does here, we review de novo whether “the amendment
could present a viable claim on the merits for which relief
could be granted.” Murray v. Schriro, 745 F.3d 984, 1015
(9th Cir. 2014).
DISCUSSION
Defendant challenges his conviction for violating 18
U.S.C. § 924(c)(1)(A)(iii), which criminalizes using or
carrying—and discharging—a firearm “during and in
relation to any crime of violence.” The statute provides two
different definitions of a “crime of violence.” Under the
elements clause, 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.” Id. § 924(c)(3)(A). The residual
clause encompasses any felony offense “that by its nature,
involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense.” Id. § 924(c)(3)(B). Because the
residual clause is unconstitutionally vague, United States v.
Davis, 139 S. Ct. 2319, 2336 (2019), we must determine
whether Defendant’s witness-tampering conviction, under
18 U.S.C. § 1512, is a crime of violence under § 924(c)’s
elements clause.
Instead of examining the facts underlying the conviction,
the categorical approach requires us to consider “whether the
elements of the statute of conviction meet the federal
definition of a ‘crime of violence.’” United States v. Buck,
DORSEY V. USA 7
23 F.4th 919, 924 (9th Cir. 2022) (citation omitted). “The
question here is thus whether a conviction under [§ 1512]
necessarily ‘has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another.’” Id. (quoting 18 U.S.C.
§ 924(c)(3)(A)). “If any—even the least culpable—of the
acts criminalized do not entail that kind of force, the statute
of conviction does not categorically match the federal
standard.” Borden v. United States, 141 S. Ct. 1817, 1822
(2021) (plurality opinion).
Section 1512, as a whole, is not categorically a crime of
violence because it criminalizes conduct that does not
necessarily require physical force. See, e.g., 18 U.S.C.
§ 1512(c) (criminalizing the corrupt alteration of a document
with the intent to impair its integrity or availability in an
official proceeding). But that conclusion does not end the
inquiry: If the statute is “divisible,” we employ the
“modified categorical approach.” Descamps v. United
States, 570 U.S. 254, 261–63 (2013). “A statute is divisible
when it ‘list[s] elements in the alternative, and thereby
define[s] multiple crimes.’” Buck, 23 F.4th at 924
(alterations in original) (quoting Mathis v. United States, 579
U.S. 500, 505 (2016)).
We agree with the parties that § 1512 is divisible because
it contains several, alternative elements of functionally
separate crimes that carry different penalties. See, e.g., 18
U.S.C. § 1512(a)(3)(B) (maximum sentence of 30 years’
imprisonment for attempt to murder); id. § 1512(b)
(maximum sentence of 20 years’ imprisonment for use or
attempted use of intimidation); id. § 1512(d) (maximum
sentence of 3 years’ imprisonment for intentionally
harassing another person). Thus, under the modified
categorical approach, we may determine the statutory basis
8 DORSEY V. USA
for the conviction by consulting the trial record, including
the indictment and the jury instructions. Johnson v. United
States, 559 U.S. 133, 144 (2010). If Defendant was
convicted under a divisible part of the witness-tampering
statute that qualifies as a crime of violence under the
elements clause, then his § 924(c) conviction can stand.
Buck, 23 F.4th at 924.
The government charged Defendant with violating 18
U.S.C. § 1512(a)(1)(A), (C) and 18 U.S.C. § 1512(a)(2)(A),
(C). The jury instructions presented two different theories
of guilt: the jury could find that Defendant attempted to kill
the witness to prevent her from testifying before the grand
jury or that Defendant knowingly used physical force against
the witness to prevent her from testifying before the grand
jury. The jury was instructed that it had to be unanimous as
to which theory was proved, but the general verdict form
does not specify the theory or theories on which the verdict
rests.
Both charged crimes—attempted killing in violation of
§ 1512(a)(1) and use of force in violation of § 1512(a)(2)—
are divisible from the remainder of the statute, including the
other offenses contained within those subsections. Section
1512(a)(1) criminalizes witness tampering by “kill[ing] or
attempt[ing] to kill another person,” which are two discrete
offenses that require proving different elements and carry
different punishments. See 18 U.S.C. § 1512(a)(3)(A)
(providing that witness tampering by killing is punished
consistent with 18 U.S.C. §§ 1111 and 1112); id.§ 1512(a)(3)(B) (maximum punishment of imprisonment for
30 years for witness tampering by attempted killing); cf.
United States v. Linehan, 56 F.4th 693, 700 (9th Cir. 2022)
(explaining that “in the context of [18 U.S.C.] § 844(d) an
attempt to commit [an] offense is distinct from the
DORSEY V. USA 9
completed offense”), petition for cert. filed, No. 23-5076
(U.S. July 7, 2023).
Section 1512(a)(2) criminalizes witness tampering by
“[w]hoever uses physical force or the threat of physical force
against any person, or attempts to do so.” Like § 1512(a)(1),
that subsection includes multiple crimes with different
elements and different punishments. “Whoever uses
physical force . . . against any person, or attempts to do so,”
id. § 1512(a)(2), is subject to one penalty, see id.
§ 1512(a)(3)(B) (maximum punishment of imprisonment for
30 years for witness tampering by use of force, or attempted
use of force), whereas “[w]hoever uses . . . the threat of
physical force against any person, or attempts to do so,” id.
§ 1512(a)(2), is subject to a different penalty, see id.
§ 1512(a)(3)(C) (maximum punishment of 20 years’
imprisonment for witness tampering by threat of force).
Defendant argues that neither attempted killing in
violation of § 1512(a)(1) nor use of physical force in
violation of § 1512(a)(2) is categorically a crime of violence
under § 924(c)(3)(A). To satisfy § 924(c)(3)’s elements
clause, the predicate crime must “require purposeful or
knowing acts” and “have ‘as an element the use, attempted
use, or threatened use of physical force against the person or
property of another.’” Buck, 23 F.4th at 927 (quoting
§ 924(c)(3)(A)).
The force requirement mandates “violent physical
force—that is, force capable of causing physical pain or
injury to another person.” Id. (quotation marks omitted)
(quoting United States v. Gutierrez, 876 F.3d 1254, 1256
(9th Cir. 2017) (per curiam)). That standard requires more
than the “merest touch,” Johnson, 559 U.S. at 143, but it
“does not require any particular degree of likelihood or
10 DORSEY V. USA
probability that the force used will cause physical pain or
injury; only potentiality,” Stokeling v. United States, 139 S.
Ct. 544, 554 (2019).
The mens rea requirement mandates purposeful or
knowing conduct. Borden, 141 S. Ct. at 1828. In Borden,
the Supreme Court held that the “use of physical force
against the person of another” did not include offenses
criminalizing reckless conduct because reckless conduct is
not action directed at another individual. Id. at 1825. Thus,
“predicate crimes that allow a conviction for merely reckless
conduct do not fall within the elements clause.” Buck, 23
F.4th at 927.
A. Attempted Killing
We hold that attempting to kill another person in
violation of § 1512(a)(1) is a crime of violence under
§ 924(c)(3)(A). We have held that attempted first-degree
murder under Washington state law qualifies as a crime of
violence under 18 U.S.C. § 16(a) because it “ha[s] as an
element the intentional use, threatened use, or attempted use
of physical force against a person.” United States v.
Studhorse, 883 F.3d 1198, 1206 (9th Cir. 2018). Although
Defendant was convicted of attempted killing under a
different law, the same reasoning applies here: “Even if [the
defendant] took only a slight, nonviolent act with the intent
to cause another’s death, that act would pose a threat of
violent force sufficient to satisfy” the definition of a crime
of violence. Id. at 1206; see Linehan, 56 F.4th at 702 (“[T]he
traditional meaning of ‘attempt’ . . . requir[es] an individual
to engage in conduct that reflects a ‘substantial step’ toward
the wrongful end.”).
The Supreme Court’s recent decision in United States v.
Taylor, 142 S. Ct. 2015 (2022), does not undermine that
DORSEY V. USA 11
conclusion. In Taylor, the Court held that attempted Hobbs
Act robbery does not qualify as a crime of violence under
§ 924(c)’s elements clause. 142 S. Ct. at 2020–21. Hobbs
Act robbery is defined as the “unlawful taking or obtaining
of personal property from the person . . . of another, against
his will, by means of actual or threatened force.” 18 U.S.C.
§ 1951(b)(1). Because § 1951(b)(1) requires either “actual
or threatened force,” an attempt to commit Hobbs Act
robbery can be proved by establishing only that the
defendant attempted to threaten force and took a substantial
step toward that end. Taylor, 142 S. Ct. at 2020. And
attempted threat of force is not a categorical match to
§ 924(c)’s requirement of “proof that the defendant used,
attempted to use, or threatened to use force.” Id. at 2021.
Contrary to Defendant’s assertions, Taylor does not hold
that “attempt crimes are categorically not crimes of
violence.” Instead, the holding in Taylor rests on a mismatch
between § 924(c) and the specific elements of Hobbs Act
robbery. That mismatch does not exist with respect to
§ 1512(a)(1). To obtain a conviction for attempted killing
under § 1512(a)(1), the government must establish that the
defendant “attempt[ed] to kill another person.” A mere
attempted threat of force is not a valid ground for a
§ 1512(a)(1) conviction of attempted killing. And, in
addition to reading Taylor too broadly, Defendant’s
argument is inconsistent with the text of § 924(c)(3)(A),
which can be satisfied by a predicate crime that has the
“attempted use” of force as an element. We join our sister
circuits in concluding that Taylor does not require us to
reconsider our precedent holding that attempted killing is a
crime of violence. See Alvarado-Linares v. United States,
44 F.4th 1334, 1346–47 (11th Cir. 2022) (distinguishing
Taylor because, “unlike Hobbs Act robbery, a criminal
12 DORSEY V. USA
cannot commit murder by threat,” and holding that
attempted murder is a crime of violence under the elements
clause because it requires the attempted use of force); United
States v. States, 72 F.4th 778, 787–88 (7th Cir. 2023)
(holding that, after Taylor, attempted murder is a crime of
violence under § 924(c)).
Attempted killing in violation of § 1512(a)(1) also
satisfies the mens rea requirement in § 924(c). See Borden,
141 S. Ct. at 1828 (holding that nearly identical text in
§ 924(e) mandates a predicate conviction that relies on
purposeful or knowing conduct). We have held that
“Congress’ use of the term ‘attempts’ in a criminal statute
manifested a requirement of specific intent to commit the
crime attempted, even when the statute did not contain an
explicit intent requirement.” United States v. Gracidas-
Ulibarry, 231 F.3d 1188, 1192 (9th Cir. 2000) (en banc).
And in Braxton v. United States, 500 U.S. 344 (1991), the
Supreme Court held that convicting the defendant of an
attempt to kill would require establishing that he fired shots
“with the intent of killing” the potential victims. Id. at 350–
51. “Although a murder may be committed without an intent
to kill, an attempt to commit murder requires a specific intent
to kill.” Id. at 351 n.* (citation and internal quotation marks
omitted).
Defendant erroneously focuses on the fact that a killing
may occur with a mens rea of recklessness. Although that
general proposition may be correct, it misunderstands the
relevant inquiry. Our specific task is to determine whether
the predicate crime for the purposes of Defendant’s § 924(c)
conviction—attempted killing in violation of § 1512(a)(1)—
requires intentional conduct. Regardless of the intent
required to commit the underlying crime, a conviction for an
“attempt to kill” under § 1512(a)(1) requires specific intent.
DORSEY V. USA 13
Accordingly, we hold that attempted killing in violation
of § 1512(a)(1) is a categorical match with § 924(c)(3)’s
elements clause because it requires proving that the
defendant intentionally used or attempted to use physical
force against another.
B. Use of Physical Force
We also hold that the use of physical force in violation
of § 1512(a)(2) is a crime of violence under § 924(c)(3)(A).
Section 1512(a)(2) criminalizes witness tampering by
“[w]hoever uses physical force . . . against any person, or
attempts to do so, with intent to” “influence, delay, or
prevent the testimony of any person in an official
proceeding,” id. § 1512(a)(2)(A); “cause or induce any
person to” withhold testimony or evidence from an official
proceeding, id. § 1512(a)(2)(B); or “hinder, delay, or prevent
the communication to a law enforcement officer or judge” of
information relating to the commission of a federal offense,
id. § 1512(a)(2)(C). 2
First, the offense necessarily has as an element “the use,
attempted use, or threatened use of physical force.”
§ 924(c)(3)(A). Some conduct that would support a
conviction under § 1512(a)(2) clearly would qualify as a
crime of violence: shooting a witness—or punching a
witness in the face—indisputably involves “force capable of
causing physical pain or injury to another person.” Johnson,
559 U.S. at 140. Not every case will be so straightforward
but, contrary to Defendant’s assertions, even the least
2
Section 1512(a)(2) also criminalizes the attempt to threaten to use force,
which presents the same overbreadth issue that the Supreme Court
identified in Taylor. See Taylor, 142 S. Ct. at 2020–21. That observation
does not change our analysis because that portion of the statute is
divisible, and Defendant was charged only with the actual use of force.
14 DORSEY V. USA
culpable of the acts criminalized by § 1512(a)(2)’s use-of-
force provision qualifies as a crime of violence.
Defendant highlights that, for the purpose of the witness
tampering statute, physical force “means physical action
against another, and includes confinement.” 18 U.S.C.
§ 1515(a)(2). Confinement, he asserts, does not require
physical force. Although the generic meaning of
“confinement” may not always require physical force,
“[u]nder the familiar interpretive canon noscitur a sociis, a
word is known by the company it keeps.” Dubin v. United
States, 143 S. Ct. 1557, 1569 (2023) (quotation marks
omitted) (quoting McDonnell v. United States, 579 U.S. 550,
568–69 (2016)). In this instance, “confinement” appears
only in the context of “physical action against another.”
§ 1515(a)(2). Given that surrounding context,
“confinement” requires more than just deception. By
defining confinement in that way, Congress required a
physical restriction on movement that constitutes physical
force under § 924(c)(3)(A).
Moreover, a party could not be convicted under
§ 1512(a)(2) for “mere[ly] touch[ing]” the witness. Johnson,
559 U.S. at 143. Considered in its context of the statute’s
definition of “physical force,” the phrase “physical action
against another” means physical action that could reasonably
be characterized as “force.” § 1515(a)(2) (emphasis added).
And, in turn, we must interpret the term “physical force” in
light of the statute’s requirement that the force be used “with
intent to” tamper with a witness. Id.; see Johnson, 559 U.S.
at 139 (“Ultimately, context determines meaning.”). Mere
touching—like a tap on the shoulder—would not fall within
this definition and accordingly cannot be the basis of a
conviction under § 1512(a)(2).
DORSEY V. USA 15
Finally, we conclude that § 1512(a)(2) satisfies the mens
rea requirement in § 924(c). In Borden, the Supreme Court
held that the phrase “use of physical force against the person
of another” in § 924(e)(2)(B)(i) requires intentional conduct
because using force “against” a person requires that the
perpetrator direct the action in question, which excludes
recklessness. 141 S. Ct. at 1826. “[W]e normally presume
that the same language in related statutes carries a consistent
meaning.” Davis, 139 S. Ct. at 2329. We see no reason to
depart from that practice here. Thus, we conclude that the
phrases “against any person” in § 1512(a)(2) and “against
another” in § 1515(a)(2) limit the reach of the statute to
intentional conduct.
Accordingly, we hold that the use of force in violation of
§ 1512(a)(2) is a categorical match with § 924(c)(3)’s
elements clause because it requires proving that the
defendant intentionally used physical force against another.
AFFIRMED.