United States v. Melaku

• Citation: 41 F.4th 386
• Decision Date: 25 July 2022
• Docket Number: 21-6122
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Yonathan MELAKU, Defendant - Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

41 F.4th 386

UNITED STATES of America, Plaintiff - Appellee,

v.Yonathan MELAKU, Defendant - Appellant.

No. 21-6122

United States Court of Appeals, Fourth Circuit.

Argued: March 8, 2022

Decided: July 25, 2022

Amended: July 27, 2022

ARGUED: Jeremy Brian Gordon, JEREMY GORDON, PLLC, Mansfield, Texas, for Appellant. Aidan Taft Grano-Mickelsen, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney, Richmond, Virginia, Daniel T. Young, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia.

Before MOTZ and DIAZ, Circuit Judges, and KEENAN, Senior Circuit Judge.

Reversed and remanded with instructions by published opinion. Senior Judge Keenan wrote the majority opinion, in which Judge Motz joined. Judge Diaz wrote an opinion dissenting in part.

BARBARA MILANO KEENAN, Senior Circuit Judge:

In this appeal, we consider whether a felony conviction under 18 U.S.C. § 1361 for willfully injuring or committing depredation against government property, with damage exceeding $1,000, qualifies as a predicate crime of violence under 18 U.S.C. § 924(c). We conclude that it does not, because this property offense can be committed in a non-violent manner without "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). Because the district court erred in reaching a contrary conclusion, we reverse the court's judgment and remand.

I.

In 2012, Yonathan Melaku pleaded guilty to and was convicted of three felony offenses: (1) willfully injuring government property causing damage exceeding $1,000, in violation of 18 U.S.C. § 1361 ; (2) using, carrying, and discharging a firearm during a crime of violence, namely, the Section 1361 offense, in violation of 18 U.S.C. § 924(c) ; and (3) attempted injury to veterans' memorials, in violation of 18 U.S.C. § 1369.¹ The district court sentenced Melaku to a term of 300 months' imprisonment, which included a consecutive 120-month sentence for his conviction under Section 924(c). Melaku did not file a direct appeal from the district court's judgment.

In 2016, Melaku filed a motion under 28 U.S.C. § 2255 to vacate his Section 924(c) conviction, arguing that the felony offense set forth in Section 1361 did not qualify as a predicate crime of violence.² Section 1361 provides:

Whoever willfully injures or commits any depredation against any property of the United States , or of any department or agency thereof, or any property which has been or is being manufactured or constructed for the United States, or any department or agency thereof, or attempts to commit any of the foregoing offenses, shall be punished as follows:

If the damage or attempted damage to such property exceeds the sum of $1,000 , by a fine under this title or imprisonment for not more than ten years, or both; if the damage or attempted damage to such property does not exceed the sum of $1,000, by a fine under this title or by imprisonment for not more than one year, or both.³

18 U.S.C. § 1361 (emphasis added).

The district court held that the disjunctive language in the first clause of Section 1361 sets forth two versions of a felony offense, namely, willfully injuring government property or committing depredation against government property. Observing that Melaku was charged and convicted under the prong of willfully injuring government property, the court concluded that commission of this crime required the use of violent, physical force because it involved the "intentional causation of injury" to property. Accordingly, the court held that Melaku's conviction under Section 1361 qualified as a predicate offense for his Section 924(c) conviction. Based on this conclusion, the district court denied Melaku's motion to vacate his Section 924(c) conviction. We later granted Melaku a certificate of appealability in accordance with 28 U.S.C. § 2253(c).

II.

We review de novo the district court's legal conclusions underlying its denial of relief under Section 2255. United States v. Jones , 914 F.3d 893, 899 (4th Cir. 2019). Our de novo review addresses the question of law whether Melaku's conviction under Section 1361 qualifies as a predicate crime of violence for his Section 924(c) conviction. See United States v. Mathis , 932 F.3d 242, 263 (4th Cir. 2019).

A.

Melaku argues that the district court erred in concluding that Section 1361 qualifies as a crime of violence under the definition of that term in Section 924(c)(3)(A), which requires the crime to have "as an element the use, attempted use, or threatened use of physical force against the person or property of another." He asserts that Section 1361 sets forth a single felony offense that prohibits a range of conduct, some of which is not violent. Thus, Melaku argues that the offense does not qualify categorically as a predicate offense for his conviction under Section 924(c) for using or carrying a firearm during a crime of violence.

The government disagrees, relying on the district court's conclusion that Section 1361 sets forth two versions of the felony offense. Alternatively, the government maintains that even if Section 1361 establishes a single felony offense, that offense categorically requires as an element the use, attempted use, or threatened use of physical force against the property of another, within the meaning of Section 924(c)(3)(A). Thus, the government maintains that willfully injuring government property causing damage of more than $1,000 necessarily requires the use of physical force. We disagree with the government's arguments and address them in turn.

B.

In deciding whether an "alternatively phrased statute" qualifies as a "crime of violence," we first consider whether it defines a single offense that can be committed by different means, or includes multiple versions of a crime defined by alternative elements. Mathis v. United States , 579 U.S. 500, 517, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) ; Omargharib v. Holder , 775 F.3d 192, 198-99 (4th Cir. 2014) ; United States v. Allred , 942 F.3d 641, 649 (4th Cir. 2019). Only then can we answer whether the predicate offense, including the least serious of the felonious acts prohibited under the statute, qualifies as a crime of violence. United States v. Drummond , 925 F.3d 681, 689 (4th Cir. 2019). In considering whether a statute sets forth alternative elements or alternative means of commission, we can review the statutory text, model jury instruction language regarding the elements of the crime, and how the crime historically has been charged. Allred , 942 F.3d at 649-51.

We conclude that Section 1361 defines a single felony offense. The statute's plain language provides that the offense may be committed by willfully injuring or committing depredation against government property. The "mere use of the disjunctive ‘or’ in the definition of a crime does not automatically render it divisible," because the alternatives may be means of commission, rather than alternative elements that must be decided upon by a fact finder. Omargharib , 775 F.3d at 194 ; Allred , 942 F.3d at 648-49. Therefore, in reviewing disjunctive statutory language, we focus on whether the nature of the conduct described in each of the statutory phrases is "radically distinct," which could indicate that the statute may contain alternative elements. See Allred , 942 F.3d at 650 (citation omitted) (concluding that causing bodily injury differs "significantly" from damaging tangible property such that 18 U.S.C. § 1513(b)(1) prohibiting retaliation against a witness is divisible).

In the present case, the plain text of the statute requires as an element damage or attempted damage to government property. 18 U.S.C. § 1361. The conduct of willfully injuring property and the conduct of committing depredation against property, as used in Section 1361, are not so dissimilar as to establish distinct crimes, but simply describe different means by which such damage or attempted damage to government property may be accomplished. See Allred , 942 F.3d at 650.

Two of our sister circuits, in addressing Section 1361, also have interpreted the terms "willfully injures" or "commits any depredation against," as a single element of willfully causing damage to government property. See United States v. Krause , 914 F.3d 1122, 1128 (8th Cir. 2019) (stating statutory elements as (1) willful conduct by defendant to (2) damage property (3) belonging to government); United States v. Seaman , 18 F.3d 649, 650 (9th Cir. 1994) (stating that statutory elements require that defendant (1) willfully injured or committed a depredation (2) against property (3) of the government, and (4) the value exceeds the amount specified in the statute). This understanding likewise is consistent with federal model jury instructions that define a Section 1361 felony offense as having four elements: (1) the defendant "damaged (or destroyed)" (2) government property, (3) willfully, (4) causing damage greater than $1,000. 2 Leonard B. Sand, et al., Modern Federal Jury Instructions (Criminal) ch. 44A-2 (2021); see also id. ch. 44A-4 (explaining in the commentary that "courts routinely refer" to Section 1361 "as involving ‘damage’ to government property," without reference to "depredation," which "is unlikely to be in the vocabulary of the average juror"). Therefore, we conclude that the felony offense defined in Section 1361 is not divisible, and that the district court erred in concluding otherwise.

C.

Having determined that Section 1361 defines a single felony offense, we turn to consider whether Melaku's conviction under the statute qualifies as a predicate crime of violence for his Section 924(c) conviction. Under Section 924(c)(3)(A), a "crime of violence" is defined in the statute's applicable "force clause" as a felony offense that "has as an element the use, attempted use, or threatened use of physical force against the person or property...