Alvarado-Linares v. United States

• Decision Date: 16 August 2022
• Docket Number: 19-14994
• Citation: 44 F.4th 1334
• Parties: Miguel ALVARADO-LINARES, a.k.a. Joker, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

44 F.4th 1334

Miguel ALVARADO-LINARES, a.k.a. Joker, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 19-14994

United States Court of Appeals, Eleventh Circuit.

Filed: August 16, 2022

James Wesley Bryant, W. Matthew Dodge, Stephanie A. Kearns, Federal Defender Program, Inc., Atlanta, GA, for Petitioner-Appellant.

Paul Jones, Gabriel Adam Mendel, J. Elizabeth McBath, William Gavin Traynor, U.S. Attorney Service - Northern District of Georgia, U.S. Attorney's Office, Atlanta, GA, for Respondent-Appellee.

Before Newsom, Branch, and Brasher, Circuit Judges.

BRASHER, Circuit Judge:

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), 18 U.S.C. § 1962(d). He was also convicted of four counts under the Violent Crimes in Aid of Racketeering Act (VICAR), 18 U.S.C. § 1959(a) —two for murder and two for attempted murder. Because he used a gun in committing those offenses, he was also convicted of four corresponding counts of using a firearm in relation to each "crime of violence" under 18 U.S.C. § 924(c). For these nine convictions—the conspiracy conviction, the four VICAR convictions, and the four corresponding firearms convictions—he is serving three concurrent life sentences plus eighty-five years. His eighty-five-year sentence is based exclusively on the four firearms convictions.

Alvarado-Linares filed a 28 U.S.C. § 2255 motion to vacate his firearms convictions and his eighty-five-year sentence. The district court denied the motion, Alvarado-Linares appealed, and we granted a certificate of appealability on one issue: whether his four firearms convictions are unconstitutional in light of the Supreme Court's decision in United States v. Davis , 588 U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), which held that Section 924(c)(3)(B) ’s "residual clause" was unconstitutionally vague.

In the district court and on appeal, the government argued that, despite Davis , Alvarado-Linares's four firearms convictions are valid because his VICAR convictions are "crimes of violence" under another of Section 924(c) ’s clauses. Specifically, the government argues that Alvarado-Linares's VICAR convictions are "crimes of violence" under the "elements clause," which defines a crime of violence as one that "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). We agree. Accordingly, we affirm the district court.

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." 18 U.S.C. § 1959(a). The indictment charged Alvarado-Linares with aiding and abetting state law crimes as part of the conspiracy. In Counts Two and Four, the indictment charged that Alvarado-Linares and other gang members "aided and abetted by each other ... did knowingly and unlawfully murder ... in violation of Official Code of Georgia, Sections 16-5-1(a) ... for the purpose of maintaining and increasing their position in MS-13, an enterprise engaged in racketeering activity[.]" In Counts Eight and Ten, it charged that he and other gang members "aided and abetted by each other ... did knowingly and unlawfully attempt to murder ... in violation of Official Code of Georgia, Sections 16-5-1(a) and 16-4-1" for the same purpose.

The government also charged Alvarado-Linares with four counts of using a firearm in relation to a "crime of violence," 18 U.S.C. § 924(c)(1), with each count corresponding to one of the VICAR charges. For example, Count Two charged Alvarado-Linares with aiding and abetting the murder of L.K. for the purposes of advancing his position in MS-13, and Count Three charged him with carrying a firearm during that "crime of violence." Similarly, the indictment charged him with aiding and abetting the murder of J.G. (Count Four) and the corresponding firearm charge (Count Five); aiding and abetting the attempted murder of D.H. (Count Eight) and the corresponding firearm charge (Count Nine); and aiding and abetting the attempted murder of J.G. (Count Ten) and the corresponding firearm charge (Count Eleven).

When instructing the jury on the VICAR counts, the trial court used the definition of Georgia malice murder to define the murder element. O.C.G.A. § 16-5-1(a). That is, the district court told the jury that "under Georgia law, a person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being." As to the VICAR murder charges, the trial court told the jury that it could convict Alvarado-Linares only if the government proved beyond a reasonable doubt that "the defendant committed the murder or aided and abetted another individual in the commission of the murder as charged." For the attempted VICAR murder charges, the government had to prove that "the defendant committed the attempted murder or aided and abetted another individual in the commission of the attempted murder as charged."

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, Alvarado-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 18 U.S.C § 924(c)(3) is a question of law that we review de novo . Id.

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." 18 U.S.C. § 924(c)(1)(A). It defines a "crime of violence" by reference to two clauses. Under what we call the "elements clause," the statute says that a crime of violence is a felony that "(A) 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). Under the "residual clause," the statute provides that a crime of violence is a felony "(B) 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). In United States v. Davis , 588 U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), the Supreme Court held that the statute's residual clause— Section 924(c)(3)(B) —is unconstitutionally vague. Id ., at ––––, 139 S. Ct. at 2336. We have since held that Davis announced a new substantive rule that applies retroactively to convictions that are already final....