In Alvarado-Linares v. United States, No. 19-14994 (Aug. 16, 2022) (Newsom, Branch, Brasher), the Court affirmed the district court's denial of Mr. Alvarado-Linares's Davis-based § 2255 motion.
Mr. Alvarado-Linares was convicted of one count of conspiracy under the Racketeer Influenced Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. § 1962(d); four counts under the Violent Crimes in Aid of Racketeering Act ("VICAR"), in violation of 18 U.S.C. § 1959(a)--two for murder and two for attempted murder, in violation of Official Code of Georgia §§ 16-5-1(a) and 16-4-1; and four counts of using a firearm in committing those offenses, in violation of 18 U.S.C. § 924(c). He was sentenced to three concurrent life sentences plus eighty-five years. Mr. Alvarado-Linares filed a motion to vacate his four firearms convictions--which resulted in 85-years of consecutive imprisonment--as unconstitutional in light of Davis.
The Court granted a certificate of appealability on one issue: whether Mr. Alvarado-Linares's four firearms convictions are unconstitutional in light of Davis. To resolve the issue, the Court noted that Mr. Alvarado-Linares must "bear the burden of showing that he is actually entitled to relief on his Davis claim, meaning he will have to show that his § 924(c) convictions[s] resulted from application of solely the [now-unconstitutional] residual clause," citing to In re Hammoud and Beeman.
The Court, applying the modified categorical approach, and looking through the VICAR statute to the elements of the underlying state predicate--Georgia malice murder--held that Georgia malice murder is a crime of violence under § 924(c)(3)'s elements clause. The Court also noted that a VICAR murder conviction predicated on federal murder would also meet the definition of crime of violence. The Court then held that VICAR attempted murder--both under Georgia and federal law--is also a crime of violence under the elements clause because a conviction for attempted murder requires the government to prove--as an element of the offense--the use or attempted use of physical force. Finally, the Court reasserted that aiding and abetting offenses can qualify as crimes of violence under § 924(c). So, even though Mr. Alvarado-Linares's VICAR murder and attempted murder convictions were premised on an aiding and abetting theory, they nevertheless count as crimes of violence under § 924(c).
Therefore, because Mr. Alvarado-Linares's VICAR convictions predicated on murder and attempted murder qualify as crimes of violence under § 924(c)'s elements clause, his four § 924(c) convictions remain valid after Davis.
Judge Newsom filed a concurring opinion, writing separately "to ask whether the 'categorical approach' to identifying 'crime[s] of violence' has, to use a technical term of art, jumped the shark." In Judge Newsom's view, the VICAR statute itself--where VICAR stands for Violent Crime in Aid of Racketeering--indicates that VICAR offenses are crimes of violence.