United States v. Leon Eckford ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50167
Plaintiff-Appellee, D.C. No.
8:16-cr-00054-
v. CJC-1
LEON CURTIS ECKFORD, AKA
Porky, AKA Spank, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted June 13, 2023
Pasadena, California
Filed August 15, 2023
Before: Jay S. Bybee and Morgan Christen, Circuit Judges,
and Eric N. Vitaliano, * District Judge.
Opinion by Judge Bybee
*
The Honorable Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
2 USA V. ECKFORD
SUMMARY **
Criminal Law
Affirming Leon Eckford’s conviction and sentence, the
panel held that aiding and abetting Hobbs Act robbery is a
crime of violence that properly served as a predicate for
Eckford’s conviction and mandatory minimum sentence for
the use of a firearm during a crime of violence under 18
U.S.C. § 924(c).
Under the “elements clause” of § 924(c), the phrase
“crime of violence” is defined 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.” The phrase “physical force” means
violent force, or force capable of causing physical pain or
injury to another person. The panel applied the “categorical
approach,” asking whether the federal felony at issue always
requires the government to prove the use, attempted use, or
threatened use of force.
The panel held that under United States v. Dominguez,
48 F.4th 1040 (9th Cir. 2022) (Dominguez II), completed
Hobbs Act robbery is a crime of violence for purposes of
§ 924(c). The panel concluded that Dominguez II was not
clearly irreconcilable with, and thus overruled by, United
States v. Taylor, 142 S. Ct. 2015 (2022) (attempted Hobbs
Act robbery is not a crime of violence). First, Taylor was
not intervening higher authority because it was decided
before Dominguez II. In Dominguez II, this court, on
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
USA V. ECKFORD 3
remand from the Supreme Court for reconsideration in light
of Taylor, partially reinstated United States v. Dominguez,
954 F.3d 1251 (9th Cir. 2020) (Dominguez I) (holding that
both completed Hobbs Act robbery and attempted Hobbs
Act robbery are categorically crimes of violence), and again
held that completed Hobbs Act robbery is a crime of
violence. Second, the panel concluded that, even if it were
not bound by Dominguez II, it would still find that
Dominguez I’s analysis of completed Hobbs Act robbery,
which cited the “realistic probability” test from Gonzales v.
Duenas-Alvarez, 549 U.S. 183 (2007), was not clearly
irreconcilable with Taylor.
The panel held that aiding and abetting Hobbs Act
robbery also satisfies the elements clause of § 924(c)
because, for purposes of criminal culpability, the law does
not distinguish between principals and aiders and abettors.
COUNSEL
Kristi A. Hughes (argued), Law Office of Kristi A. Hughes,
Cardiff, California, for Defendant-Appellant.
Suria M. Bahadue (argued), Assistant United States
Attorney; Bram M. Alden, Assistant United States Attorney,
Criminal Appeals Section Chief; E. Martin Estrada, United
States Attorney; United States Attorney’s Office, Los
Angeles, California; Scott D. Tenley, Zweiback Fiset &
Zalduendo LLP, Los Angeles, California; for Plaintiff-
Appellee.
4 USA V. ECKFORD
OPINION
BYBEE, Circuit Judge:
Appellant Leon Eckford pleaded guilty to aiding and
abetting the robbery of two jewelry stores in violation of the
Hobbs Act, 18 U.S.C. § 1951(a). For his crimes, he was
sentenced to 11 years’ imprisonment, including a mandatory
minimum sentence for the use of a firearm during a “crime
of violence.” Id. § 924(c)(1)(A). On appeal, Eckford argues
that aiding and abetting Hobbs Act robbery is not a crime of
violence and therefore cannot serve as a predicate for his
§ 924(c) conviction and mandatory minimum sentence. We
disagree and affirm the judgment of the district court.
I. BACKGROUND
A. Factual History
Between the end of 2015 and the beginning of 2016,
Leon Eckford participated in two jewelry store robberies.
The first robbery was straightforward. Two of Eckford’s co-
conspirators entered a jewelry store and used a
sledgehammer and an ax to smash open display cases.
Eckford then swooped in to help his co-conspirators retrieve
Rolex watches from the broken cases. Their haul was 14
watches, altogether worth over $200,000.
Eckford’s second robbery raised the stakes. Upon
entering a jewelry store, one of Eckford’s co-conspirators
used a handgun to strike a security guard. The co-
conspirator then pointed his gun at the security guard,
ordered him to the ground, and took the handgun that the
guard carried in his holster. The co-conspirator pointed both
his and the security guard’s handguns at the store employees.
One of the participants in the robbery ordered the employees
USA V. ECKFORD 5
to lie down on the floor. In the midst of the commotion,
Eckford and three compatriots hacked at display cases with
axes and sledgehammers. The group grabbed 133 Rolex
watches—valued at over $2 million—and fled.
In April 2016, Eckford was arrested in his home. In a
post-arrest interview, Eckford admitted that he participated
in both robberies.
B. Procedural History
Eckford was indicted on five counts: one count of
conspiracy to commit Hobbs Act robbery, 18 U.S.C.
§ 1951(a); two counts of aiding and abetting Hobbs Act
robbery, id.; one count of aiding and abetting the use of a
firearm during a crime of violence, id. § 924(c)(1)(A)(ii);
and one count of being a felon knowingly in possession of
ammunition, id. § 922(g)(1). Eckford pleaded guilty to the
first four counts. The felon in possession charge was
dismissed on the government’s motion.
At the sentencing hearing, the district court calculated a
sentencing guideline range of 63 to 78 months for Eckford’s
three Hobbs Act robbery counts. Because a conviction for
“brandish[ing]” a firearm in furtherance of a “crime of
violence” requires a mandatory consecutive seven-year
sentence, 18 U.S.C. § 924(c)(1)(A)(ii), the district court
bumped its guideline calculation up to 147 to 162 months.
In light of a number of mitigating factors, including
Eckford’s traumatic upbringing, his contrition for his crimes,
and exemplary behavior in prison, the district court varied
downward from the guidelines and issued a sentence of 11
years (132 months). As permitted by his plea agreement,
Eckford filed a timely appeal of his sentence.
6 USA V. ECKFORD
II. JURISDICTION AND STANDARD OF REVIEW
We review a district court’s final sentence pursuant to 18
U.S.C. § 3742(a). Normally, we review de novo the district
court’s determination of whether a conviction is a crime of
violence. United States v. Begay, 33 F.4th 1081, 1087 (9th
Cir. 2022) (en banc). However, “where a defendant makes
an argument for the first time on appeal that was not the basis
of an objection in the trial court, we review for plain error.”
Id. (citing United States v. Cuevas-Lopez, 934 F.3d 1056,
1060 (9th Cir. 2019)).
The government argues that plain error review applies
here because Eckford failed to argue before the district court
that aiding and abetting Hobbs Act robbery was not a crime
of violence. Eckford asserts that he adequately preserved the
issue through comments at his change of plea and sentencing
hearings.
We need not resolve this dispute because we have
discretion to review this question de novo. “[W]e are not
limited to [plain error] review when we are presented with
[1] a question that is purely one of law and [2] where the
opposing party will suffer no prejudice as a result of the
failure to raise the issue in the trial court.” United States v.
McAdory, 935 F.3d 838, 841–42 (9th Cir. 2019) (third and
fourth alterations in original) (citation omitted). Whether
Eckford’s conviction for aiding and abetting Hobbs Act
robbery is a crime of violence is a purely legal question. See
United States v. Perez, 932 F.3d 782, 784 (9th Cir. 2019).
The government has failed to explain how it would be
prejudiced by de novo review, and it has fully briefed the
issues. See McAdory, 935 F.3d at 842 (finding the
government would not be prejudiced by de novo review
when the government had been given “a full opportunity to
USA V. ECKFORD 7
present its views”). We will, therefore, review Eckford’s
claims de novo.
III. DISCUSSION
Under 18 U.S.C. § 924(c), “any person who, during and
in relation to any crime of violence . . . uses or carries a
firearm, or who, in furtherance of any such crime, possesses
a firearm” shall receive a mandatory sentence of “not less
than 5 years.” Id. § 924(c)(1)(A). “[I]f the firearm is
brandished,” the mandatory minimum sentence is seven
years. Id. § 924(c)(1)(A)(ii). Eckford’s conviction under
§ 924(c) is based on the district court’s conclusion that
aiding and abetting Hobbs Act robbery qualifies as a “crime
of violence.” If this conclusion is erroneous—if aiding and
abetting Hobbs Act robbery is not a crime of violence—then
we must reverse Eckford’s § 924(c) conviction.
Under a provision of § 924(c) known as the
“elements clause,” the phrase “crime of violence” is defined
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.” 18 U.S.C.
§ 924(c)(3)(A). As used in the elements clause, “the phrase
‘physical force’ means violent force—that is, force capable
of causing physical pain or injury to another person.”
Johnson v. United States, 559 U.S. 133, 140 (2010).
“To determine whether a federal felony may serve as a
predicate for a conviction and sentence under the elements
clause . . . we must apply a ‘categorical approach.’” United
States v. Taylor, 142 S. Ct. 2015, 2020 (2022). The
categorical approach ignores the facts surrounding the
particular defendant’s conviction. Id. Instead, “[t]he only
relevant question is whether the federal felony at issue
always requires the government to prove—beyond a
8 USA V. ECKFORD
reasonable doubt, as an element of its case—the use,
attempted use, or threatened use of force.” Id. (emphasis
added).
Eckford raises two issues. First, he argues that Hobbs
Act robbery is not a crime of violence for purposes of
§ 924(c). Second, he claims that even if Hobbs Act robbery
is a crime of violence, aiding and abetting such robbery is
not.
A. Hobbs Act Robbery as a Crime of Violence
We will first address Eckford’s argument that completed
Hobbs Act robbery is not a crime of violence. This question
has a history in our court. In United States v. Mendez, we
held that Hobbs Act robbery is a crime of violence. 992 F.2d
1488, 1491 (9th Cir. 1993). However, our conclusion in that
case was not based on the elements clause of § 924(c)(3)(A),
but rather the so-called “residual clause” of § 924(c)(3)(B).
Id. at 1491–92; see 18 U.S.C. § 924(c)(3)(B) (“‘[C]rime of
violence’ means an offense that is a felony and . . . 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.”). At the time we decided
Mendez, the residual clause provided an alternative mode of
evaluating whether an offense is a crime of violence. In
2019, the Supreme Court ruled that the residual clause of
§ 924(c)(3)(B) was unconstitutionally vague and, therefore,
unenforceable. United States v. Davis, 139 S. Ct. 2319, 2336
(2019).
Without the residual clause, the only way to define a
crime of violence under § 924(c) is through the elements
clause. We took up the question of whether Hobbs Act
robbery constitutes a crime of violence under the elements
clause in United States v. Dominguez, 954 F.3d 1251 (9th
USA V. ECKFORD 9
Cir. 2020) (“Dominguez I”), vacated, 142 S. Ct. 2857
(2022). There, we reasoned that even the “least serious way”
to commit Hobbs Act robbery, “placing a victim in fear of
bodily injury,” satisfied the elements clause “because it
‘requires at least an implicit threat to use . . . violent physical
force.’” Id. at 1260 (quoting United States v. Gutierrez, 876
F.3d 1254, 1257 (9th Cir. 2017)). We thus concluded,
joining all other circuits, that “Hobbs Act robbery . . . is
categorically a crime of violence under the elements clause.”
Id. We also determined that the same was true of the
defendant’s convictions for attempted Hobbs Act robbery.
Id. at 1261–62. We affirmed the defendant’s § 924(c)
convictions for both Hobbs Act robbery and attempted
Hobbs Act robbery.
Last year, in United States v. Taylor, the Supreme Court
held that attempted Hobbs Act robbery is not a crime of
violence. 142 S. Ct. 2015, 2020–21 (2022). In light of
Taylor, the Court vacated and remanded our decision in
Dominguez I. Dominguez v. United States, 142 S. Ct. 2857
(2022). On remand, we issued a brief amended order in
which we reversed the defendant’s § 924(c) conviction
based on attempted Hobbs Act robbery. United States v.
Dominguez, 48 F.4th 1040 (9th Cir. 2022) (“Dominguez II”);
see Dominguez I, 954 F.3d at 1261–62. But we upheld the
defendant’s § 924(c) conviction based on completed Hobbs
Act robbery, incorporating the reasoning we had provided in
Dominguez I. Dominguez II, 48 F.4th 1040; see Dominguez
I, 954 F.3d at 1260–61.
Dominguez II should resolve this case. But Eckford
claims that even Dominguez II’s partial reinstatement of
Dominguez I is clearly irreconcilable with Taylor.
“Generally, a panel opinion is binding on subsequent panels
unless and until overruled by an en banc decision of this
10 USA V. ECKFORD
circuit.” United States v. Easterday, 564 F.3d 1004, 1010
(9th Cir. 2009). There is a narrow exception on which
Eckford relies: “en banc review is not required to overturn a
case where ‘intervening Supreme Court authority is clearly
irreconcilable with our prior circuit authority.’” Id. at 1010–
11 (quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc), overruled on other grounds, Sanchez v.
Mayorkas, 141 S. Ct. 1809 (2021)). “[T]he ‘clearly
irreconcilable’ requirement ‘is a high standard’” that
demands more than mere “tension between the intervening
higher authority and prior circuit precedent.” Fed. Trade
Comm’n v. Consumer Def., LLC, 926 F.3d 1208, 1213
(9th Cir. 2019) (quoting Rodriguez v. AT&T Mobility Servs.
LLC, 728 F.3d 975, 979–80 (9th Cir. 2013)). “[I]f we can
apply our precedent consistently with that of the higher
authority, we must do so.” Avilez v. Garland, 69 F.4th 525,
533 (9th Cir. 2023) (alteration in original) (quoting
Consumer Def., 926 F.3d at 1213).
According to Eckford, Hobbs Act robbery cannot be,
categorically, a crime of violence because it encompasses
threats of future injury to intangible economic interests, like
public goodwill or reputation. Such threats, Eckford claims,
would not satisfy the elements clause because they do not
necessarily entail the use of “physical force.” 18 U.S.C.
§ 924(c)(3)(A) (emphasis added). We addressed this
concern in Dominguez I. We reasoned that we need not
analyze whether threats to injure “intangible economic
interests” require a threat of physical force because the
defendant had “fail[ed] to point to any realistic scenario in
which a robber could commit Hobbs Act robbery by placing
his victim in fear of injury to an intangible economic
interest.” 954 F.3d at 1260. Our reasoning referred to a test
from Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), in
USA V. ECKFORD 11
which the Court rejected the use of imaginative hypothetical
scenarios. There, the Court held that a state statute is not
broader than its generic federal equivalent unless there is “a
realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the
generic definition of a crime.” Id. at 193. Relying on this
test, we rejected the “intangible economic interests”
argument because we found there was no realistic
probability that the government would bring a Hobbs Act
robbery case based on such a theory. Dominguez I, 954 F.3d
at 1260.
Eckford claims the “realistic probability” test is
incompatible with Taylor. Recall that Taylor dealt with
attempted Hobbs Act robbery, not completed Hobbs Act
robbery. Taylor, 142 S. Ct. at 2020. In order to prove an
attempt, the government had to show that the defendant
“completed a ‘substantial step’” to achieving the goal. Id.
But the government admitted that a “substantial step” “need
not be violent.” Id. (quoting Brief for United States 22). In
other words, to prove attempted Hobbs Act robbery, the
government was “not require[d] . . . to prove that the
defendant used, attempted to use, or even threatened to use
force against another person or his property.” Id.
In Taylor, the United States pointed to Duenas-Alvarez
as evidence that the defendant bears the burden of showing
“how his crime of conviction is normally committed or
usually prosecuted.” Id. at 2024. The Court rejected the
application of Duenas-Alvarez in Taylor’s case, for two
reasons. First, the Court observed that in Duenas-Alvarez,
the Court was engaged in a different version of the
categorical approach. In Duenas-Alvarez, the Court was
comparing generic federal law to state law, and the state
courts are the final arbiters of the meaning of the state
12 USA V. ECKFORD
statute. So the Court employed the “realistic probability”
test to measure how a state was likely to apply its statute; the
test placed the burden on the defendant to show that a
creative application of the state statute was a “realistic
probability” and not just a “theoretical possibility.” Duenas-
Alvarez, 549 U.S. at 193. In Taylor, however, the Court had
no such federalism concerns because it was comparing one
federal statute to another federal statute. Taylor, 142 S. Ct.
at 2025. Second, the Court pointed out that in Duenas-
Alvarez the state and federal law clearly overlapped; the
question was whether “state courts also ‘appl[ied] [their law]
in [a] special (nongeneric) manner.’” Id. (quoting Duenas-
Alvarez, 549 U.S. at 193) (first and third alterations in
original). In Taylor, there was no need to inquire how a state
might enforce its own law; it was a matter for the federal
courts to compare the elements of attempted Hobbs Act
robbery with the § 924(c) requirements and determine how
the two statutes should be read. The Court concluded that
an attempt did not require the government to prove the use,
attempt use or threatened use of force. Id.
Taylor’s concerns are not at play in this case. First,
Taylor is not “intervening higher authority.” Miller, 335
F.3d at 893 (emphasis added). The precedent that binds us
is not Dominguez I; it is Dominguez II. Dominguez II was
published after the Supreme Court vacated Dominguez I in
light of Taylor. By reinstating the completed Hobbs Act
robbery analysis of Dominguez I, the panel in Dominguez II
necessarily affirmed that analysis as consistent with Taylor.
It is not our place to second-guess this holding.
Second, even if we were not bound by Dominguez II, we
would still find that Dominguez I’s citation to the realistic
probability test does not render its analysis of completed
Hobbs Act robbery clearly irreconcilable with Taylor.
USA V. ECKFORD 13
Taylor did not overrule Duenas-Alvarez; it merely held that
the realistic probability test was not implicated because the
Court was comparing two federal statutes. Taylor, 142 S.
Ct. at 2024; see also Alfred v. Garland, 64 F.4th 1025, 1043
(9th Cir. 2023) (en banc) (plurality opinion) (recognizing
that Taylor “interpret[ed] the ‘realistic probability’
requirement narrowly”). In Dominguez I, we cited Duenas-
Alvarez to emphasize that there was no “realistic scenario in
which a robber could commit Hobbs Act robbery by placing
his victim in fear of injury to an intangible economic
interest.” Dominguez I, 954 F.3d at 1260. More
importantly, that was not the end of our analysis. We also
pointed to the Fourth Circuit, which had
observe[d] that both Section 924(c) and
Hobbs Act robbery reference the use of force
or threatened use of force against “property”
generally, without further defining the term
“property.” . . . And neither provision draws
any distinction between tangible and
intangible property. Thus, we do not discern
any basis in the text of either statutory
provision for creating a distinction between
threats of injury to tangible and intangible
property for the purposes of defining a crime
of violence.
Dominguez I, 954 F.3d at 1261 (second alteration in original)
(quoting United States v. Mathis, 932 F.3d 242, 266 (4th Cir.
2019)). We “agree[d] with and adopt[ed] this reasoning.”
Id. In other words, if “property” encompasses intangible
property in the Hobbs Act, then so does “property” in
§ 924(c); conversely, if the Hobbs Act does not extend to
intangible property, then neither does § 924(c). There is no
14 USA V. ECKFORD
daylight between the use of the term “property” in the two
statutes. See Azar v. Allina Health Servs., 139 S. Ct. 1804,
1812 (2019) (“This Court does not lightly assume that
Congress silently attaches different meanings to the same
term in the same or related statutes.”).
We recognize that Eckford’s argument goes one step
beyond what we discussed in Dominguez I. His point is not
just that Hobbs Act robbery may involve injury to intangible
property. Rather, his point is that a threat to injure
intangible property does not entail the physical force that the
elements clause demands. Although this argument has some
appeal, it is not a natural reading of the text. The First Circuit
addressed a similar claim in United States v. García-Ortiz,
904 F.3d 102 (1st Cir. 2018). García-Ortiz argued that “a
person can commit Hobbs Act robbery by threatening to
‘devalue some intangible economic interest like a stock
holding or control right.’” Id. at 107. The First Circuit
pointed out that the hypothetical “sounds to us like Hobbs
Act extortion,” which is punished in a separate section. Id.(emphasis in original); see 18 U.S.C. § 1951(b)(2). The
court was
unpersuaded that a threat to devalue an
intangible economic interest constitutes the
type of “injury” described in the Hobbs Act’s
robbery provision. . . . Hobbs Act robbery,
even when based upon a threat of injury to
property, requires a threat of the kind of force
described in Johnson[], that is, “violent force
USA V. ECKFORD 15
. . . capable of causing physical pain or
injury.”
Id. at 107 (quoting Johnson, 559 U.S. at 140). We agree with
the First Circuit’s analysis. The broad form of intangible
injury that Eckford describes is a far cry from the physical
harm evoked by the terms “force,” “violence,” and “fear of
injury.” 18 U.S.C. § 1951(b). Eckford’s reading of the
statute would “ascrib[e] to one word a meaning so broad that
it is inconsistent with its accompanying words, thus giving
unintended breadth to [the Hobbs Act].” Yates v. United
States, 574 U.S. 528, 543 (2015) (quoting Gustafson v.
Alloyd Co., 513 U.S. 561, 575 (1995)). In short, even if we
thought Taylor enabled us to reconsider our analysis in
Dominguez I, we would still reach the same result: Hobbs
Act robbery is a crime of violence. See Mathis, 932 F.3d at
266 (fear of injury “necessarily involves the threat to use
physical force” (internal quotation marks, citation, and
alteration omitted)).
B. Aiding and Abetting Hobbs Act Robbery as a Crime of
Violence
In the alternative, Eckford argues that even if Hobbs Act
robbery satisfies the elements clause, aiding and abetting
Hobbs Act robbery does not. Eckford argues that a
defendant may be convicted of aiding and abetting Hobbs
Act robbery for being complicit in another person’s use of
force without using or threatening to use force himself, and
that such complicity cannot satisfy the elements clause.
Eckford’s argument misunderstands the nature of aiding
and abetting liability. At common law, aiding and abetting
was considered a separate offense from the crime committed
by the principal actor. Over time, “every jurisdiction—all
16 USA V. ECKFORD
States and the Federal Government— . . .‘expressly
abrogated the distinction’ among principals and aiders and
abettors.” Duenas-Alvarez, 549 U.S. at 189 (quoting 2 W.
LaFave, Substantive Criminal Law § 13.1(e) (2d ed. 2003)).
As a consequence, aiding and abetting liability is “not a
separate offense.” United States v. Garcia, 400 F.3d 816,
820 (9th Cir. 2005). We no longer distinguish between
principals and aiders and abettors; principals and
accomplices “are equally culpable and may be convicted of
the same offense.” Alfred, 64 F.4th at 1034 (plurality
opinion); see 18 U.S.C. § 2(a) (“Whoever commits an
offense against the United States or aids, abets, counsels,
commands, induces or procures its commission, is
punishable as a principal.”); Rosemond v. United States, 572
U.S. 65, 72–73 (2014). Eckford would have us return to the
era when we treated principals and accomplices as guilty of
different crimes. We have long moved past such distinctions
for purposes of determining criminal culpability, although
the terminology may be useful for other reasons. See Alfred,
64 F.4th at 1034 (plurality opinion) (pointing out that
although principals and accomplices “are equally culpable
and may be convicted of the same offense,” the
“metaphysical line between the two” may play a role in
sentencing). An accomplice is guilty of committing the
crime “even if that aid relates to only one (or some) of a
crime’s phases or elements.” Rosemond, 572 U.S. at 73; see
id. at 74 (“A strategy of ‘you take that element, I’ll take this
one’ would free neither party from liability.”).
This rule applies to convictions under § 924(c). We have
“repeatedly upheld § 924(c) convictions based on
accomplice liability.” United States v. Henry, 984 F.3d
1343, 1356 (9th Cir. 2021) (collecting cases). That means
that “aiding and abetting a crime of violence . . . is also a
USA V. ECKFORD 17
crime of violence.” Young v. United States, 22 F.4th 1115,
1123 (9th Cir. 2022); see Amaya v. Garland, 15 F.4th 976,
984–86 (9th Cir. 2021) (declining to consider aiding and
abetting liability in its elements clause inquiry); United
States v. Door, 917 F.3d 1146, 1152–53 (9th Cir. 2019)
(same). We have reasoned that consideration of accomplice
liability is not necessary for an elements clause inquiry
because that inquiry looks only for the presence (or absence)
of a single element. See Amaya, 15 F.4th at 984–86; Door,
917 F.3d at 1152–53. Thus, even though accomplice
liability presents an alternative means of committing an
offense, that alternative means of commission does not
affect whether the predicate offense “has as an element the
use, attempted use, or threatened use of physical force
against the person or property of another.” 18
U.S.C. § 924(c)(3)(A) (emphasis added).
In sum, nothing in this analysis is “clearly
irreconcilable” with Taylor. Taylor dealt with an inchoate
crime, an attempt, and does not undermine our precedent on
aiding and abetting liability. “[T]here are fundamental
differences between attempting to commit a crime, and
aiding and abetting its commission . . . .” Garcia, 400 F.3d
at 819. Chief among these differences is that “[i]n an attempt
case there is no crime apart from the attempt, which is the
crime itself,” whereas “aiding and abetting is a different
means of committing a single crime, not a separate offense
itself.” Id. at 819–20. Put differently, proving the elements
of an attempted crime falls short of proving those of the
completed crime, whereas a conviction for aiding and
abetting requires proof of all the elements of the completed
crime plus proof of an additional element: that the defendant
intended to facilitate the commission of the crime. See id. at
819. One who aids and abets the commission of a violent
18 USA V. ECKFORD
offense has been convicted of the same elements as one who
was convicted as a principal; the same is not true of one who
attempts to commit a violent offense. Accordingly, we
conclude that our precedent is not clearly irreconcilable with
Taylor.
IV. CONCLUSION
We have previously held that Hobbs Act robbery is a
crime of violence, Dominguez II, 48 F.4th 1040, and that
aiding and abetting a crime of violence is also a crime of
violence, Young, 22 F.4th at 1123. That precedent has not
been undermined by the Supreme Court’s decision in Taylor.
We therefore affirm the judgment of the district court.
AFFIRMED.