USCA Case #22-3051 Document #1974416 Filed: 11/21/2022 Page 1 of 27
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`UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`_________________________
`
`No. 22-3051
`_________________________
`
`
`Appellee,
`
`Appellant.
`
`
`UNITED STATES OF AMERICA,
`
`
`
`CARL COOPER,
`
`
`
`
`v.
`
`MOTION TO DISMISS FOR LACK OF A
`CERTIFICATE OF APPEALABILITY
`Appellant Carl Cooper seeks to appeal the district court’s denial of
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`his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C.
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`§ 2255. As to the counts disputed here, the Honorable Amy Berman
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`Jackson denied the motion and declined to issue a Certificate of
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`Appealability (“COA”). This Court too should find that a COA is not
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`warranted and dismiss this appeal.
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`_________________________
`
`No. 22-3051
`_________________________
`
`
`Appellee,
`
`Appellant.
`
`
`UNITED STATES OF AMERICA,
`
`
`
`CARL COOPER,
`
`
`
`
`v.
`
`MOTION TO DISMISS FOR LACK OF A
`CERTIFICATE OF APPEALABILITY
`Appellant Carl Cooper seeks to appeal the district court’s denial of
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`his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C.
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`§ 2255. As to the counts disputed here, the Honorable Amy Berman
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`Jackson denied the motion and declined to issue a Certificate of
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`Appealability (“COA”). This Court too should find that a COA is not
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`warranted and dismiss this appeal.
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`
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`USCA Case #22-3051 Document #1974416 Filed: 11/21/2022 Page 2 of 27
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`BACKGROUND
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`Offense of Conviction and Procedural History
`In 1999, Cooper was charged in a 44-page, 48-count indictment with
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`a number of violent and racketeering acts “related to a series of robberies,
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`attempted robberies, homicides and assaults that the defendant
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`participated in, with other individuals not charged in the indictment, in
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`the District of Columbia, Maryland and Pennsylvania from 1993 through
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`1999” (ECF 170 at 2; see Ex. 1). The charges included racketeering,
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`violent crimes in aid of racketeering (VICAR), and four separate
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`premeditated murders. The government filed a notice of intent to seek
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`the death penalty (ECF 69).
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`On the eve of trial, however, Cooper agreed to plead guilty to the
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`indictment (ECF 150; see ECF 170 at 3). In exchange, the government
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`agreed not to seek the death penalty (id.). The plea agreement was
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`pursuant to Federal Rules of Criminal Procedure 11(e)(1)(C), under
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`which Cooper and the government agreed to a sentence of life without
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`parole—the sentence mandated by statute for Count 1 (participation in a
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`RICO enterprise, 18 U.S.C. § 1962(c)) and Count 2 (RICO conspiracy, 18
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`U.S.C. § 1962(d)). The Honorable Joyce Hens Green accepted the plea
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`2
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`and imposed sentence (ECF 158; ECF 160). See also ECF 170 at 4-7
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`(listing charges and sentences). Among the charges were five convictions
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`under 18 U.S.C. § 924(c) for using a firearm during a crime of violence
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`and three convictions under 18 U.S.C. § 924(j) for murder in the course
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`of using a firearm during a crime of violence (ECF 158; ECF 160; ECF
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`170 at 4-7). Cooper did not file a direct appeal.
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`On June 8, 2020, Cooper moved pro se under 28 U.S.C. § 2255 to
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`vacate, set aside, or correct his sentence, his first post-conviction filing
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`(ECF 163). On October 20, 2020, Cooper filed a supplemental motion
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`through counsel (ECF 166). The government opposed (ECF 170), and
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`Cooper replied and filed a second supplement through counsel (ECF 171;
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`ECF 172). Judge Jackson, to whom the case had been reassigned, granted
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`the motion in part and denied it in part, vacating two of the § 924(c)
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`counts, while sustaining the other six and denying resentencing (ECF
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`173). The district court issued an amended judgment on July 21, 2021
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`(ECF 176), and Cooper filed a timely notice of appeal six days later (ECF
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`177; see also ECF 180). In an August 5 minute order, the district court
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`denied a certificate of appealability.
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`3
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`Litigation on the § 2255 Motion
`Cooper moved pro se (ECF 163) to vacate his eight § 924
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`convictions, arguing that the predicate offenses no longer qualified as
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`“crimes of violence” after United States v. Davis, 139 S. Ct. 2319 (2019).
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`Specifically, those eight convictions were:
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`• Count 7 (§ 924(c)): Using a firearm during the robbery of Pizza
`Italia on June 4, 1996, as charged in Racketeering Act Two of
`Count 1 (Maryland armed robbery), Count 5 (Hobbs Act
`conspiracy to rob), and Count 6 (Hobbs Act robbery) (ECF 1 at
`15; ECF 170 at 13-14). Sentence of 7 years, consecutive to all
`other sentences (ECF 160).
`• Count 12 (§ 924(c)): Using a firearm during the robbery,
`assault, and attempted murder of Bruce Howard and Christy
`Bennett on August 12, 1996, as charged in Racketeering Act
`Three of Count 1 (Maryland armed robbery and attempted
`murder) and Count 11 (VICAR predicated on Maryland
`attempted murder and assault with a dangerous weapon
`resulting in serious bodily injury) (ECF 1 at 18-19; ECF 170
`at 15). Sentence of 25 years, consecutive to all other sentences
`(ECF 160).
`• Count 16 (§ 924(c)): Using a firearm during the robbery and
`assault at Velvet Touch Massage Parlor on September 8,
`1996, as charged in Racketeering Act Four of Count 1
`(Pennsylvania robbery) and Count 15 (VICAR predicated on
`Pennsylvania assault with a dangerous weapon) (ECF 1 at 21;
`ECF 170 at 21-37). Sentence of 25 years, consecutive to all
`other sentences (ECF 160).
`• Count 25 (§ 924(c)): Using a firearm during the robbery of
`Rollingcrest-Chillum Community Center on June 26, 1997, as
`charged in Racketeering Act Six of Count 1 (Maryland armed
`robbery), Count 23 (Hobbs Act conspiracy to rob), and Count
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`4
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`24 (Hobbs Act robbery) (ECF 1 at 29-30; ECF 170 at 13-14).
`Sentence of 25 years, consecutive to all other sentences (ECF
`160).
`• Counts 36, 39, and 42 (§ 924(j)): Murder in the course of using
`a firearm during the attempted robbery of Starbucks and
`triple murder of employees Emory Allen Evans, Aaron David
`Goodrich, and Mary Caitrin Mahoney on July 6, 1997, as
`charged in Racketeering Act Seven (b)-(e) of Count 1 (D.C.
`attempted robbery and first-degree murder), and Count 29
`(attempted Hobbs Act robbery) (ECF 1 at 36-40; ECF 170 at
`15-21). Sentence of life without the possibility of release,
`concurrent with other sentences (including his life sentences
`for Counts 1 and 2) (ECF 160).
`• Count 46 (§ 924(c)): Using a firearm during the conspiracy and
`attempt to rob Tire Town and the Salon En Vogue between
`August and October 1997, as charged in Racketeering Act
`Eight of Count 1 (D.C. and Maryland conspiracy to rob and
`attempted robbery) and Count 45 (Hobbs Act conspiracy to
`rob) (ECF 1 at 43; ECF 170 at 37-39). Sentence of 25 years,
`consecutive to all other sentences (ECF 160).
`Notably, when supplementing Cooper’s cursory pro se filing, counsel
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`focused exclusively on Counts 16 and 46, presenting no legal argument
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`challenging the other six counts (ECF 173 at 12 n.6; see ECF 166; ECF
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`172).
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`The government maintained (ECF 170 at 10-39) that each of
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`Cooper’s § 924 convictions rested on at least one valid predicate, even if
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`some of the alleged predicates were no longer viable after Davis and
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`Johnson v. United States, 576 U.S. 591 (2015). The filing was made before
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`5
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`issuance of Borden v. United States, 141 S. Ct. 1817 (2021). The
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`government also contended (ECF 170 at 9-10) that Cooper’s claims were
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`procedurally barred.
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`The district court’s 39-page opinion granted Cooper’s motion in part
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`and denied it in part. The district court concluded that Cooper had not
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`procedurally defaulted his claims (ECF 173 at 9-12). On the merits, the
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`court agreed that the crimes underlying the two counts briefed by defense
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`counsel—Counts 16 and 46—no longer qualified as “crimes of violence”
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`(ECF 173 at 12-28). But the court found that the other § 924 convictions
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`survived: Hobbs Act robbery, the predicate for Counts 7 and 25, remained
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`a crime of violence (ECF 173 at 28-30). So did both Maryland attempted
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`murder and Maryland assault with a dangerous weapon, sustaining
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`Count 12 (id. at 30-32). And so did at least federal murder, as required
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`by Counts 36, 39, and 42 (id. at 32-34). (The district court’s section
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`heading said that D.C. murder qualified as a crime of violence, but a later
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`footnote said the court was not resolving that question (id. at 32, 34
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`n.25).) Finally, the court held that the appropriate remedy was to correct
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`the sentence by amending the judgment and vacating Counts 16 and 46,
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`rather than to conduct a full resentencing, since “the sentence in this case
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`6
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`was based on ‘an overall plan’—that defendant would serve a sentence of
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`life imprisonment without the possibility of release or parole,” and “the
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`life sentences do not depend in any way on the sentences for the two
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`invalid convictions” (id. at 34-39).
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`The district court also determined that no certificate of
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`appealability was warranted, “[g]iven that the Court ruled in defendant’s
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`favor on those issues where the case law reflects a difference of opinion,
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`and it only denied relief with respect to issues where there is no dispute
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`in the relevant authorities” (Dkt. 8/5/22) (citation omitted).
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`ARGUMENT
`The district court properly denied a certificate of appealability. At
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`the outset, this Court should decline to review the merits of Cooper’s
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`§ 924(c) challenges, because a ruling in his favor will not shorten his term
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`of imprisonment. Cooper is serving a mandatory life sentence for charges
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`he has not challenged. As other courts have recognized, there is no reason
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`to expend judicial resources resolving legal challenges with no practical
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`consequence. In any event, Cooper establishes no “debatable” claim as to
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`the merits of the remaining § 924 convictions—as counsel implicitly
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`recognized below by failing to offer any legal argument challenging those
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`7
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`USCA Case #22-3051 Document #1974416 Filed: 11/21/2022 Page 8 of 27
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`convictions. While “crime of violence” litigation can quickly turn
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`complicated, this case presents low-hanging fruit. Cooper’s remaining
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`convictions each rest on at least one clear crime of violence: Hobbs Act
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`robbery, malice murder, or assault with intent to murder. Finally, the
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`district court’s decision not to conduct a full-blown resentencing after
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`vacating Cooper’s consecutive sentences for Counts 16 and 46 fits easily
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`within the court’s discretion. This Court should therefore deny Cooper’s
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`request for a certificate of appealability.
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`A. Applicable Legal Principles
`To appeal from a district court’s denial of a § 2255 petition, the
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`prisoner must obtain a COA from either the district court or circuit by
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`establishing “a substantial showing of the denial of a constitutional
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`right.” 28 U.S.C. § 2253(c); see Gonzalez v. Thaler, 565 U.S. 134, 144 n.5
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`(2012). To make such a showing, the petitioner must demonstrate that
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`“jurists of reason would find it debatable whether the applicant states a
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`valid claim of the denial of a constitutional right.” United States v.
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`Arrington, 763 F.3d 17, 23 (D.C. Cir. 2014) (citation and brackets
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`omitted). “The court of appeals has no jurisdiction unless and until a
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`8
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`court grants a COA.” Head v. Wilson, 792 F.3d 102, 108 n.6 (D.C. Cir.
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`2015).
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`Following the invalidation of the “residual clause” in Davis, 139 S.
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`Ct. 2319, for a crime to qualify as a “crime of violence” under 18 U.S.C.
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`§ 924(c), an offense must be a felony that has “as an element the use,
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`attempted use, or threatened use of physical force against the person or
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`property of another.” 18 U.S.C. § 924 (c)(3)(A). When deciding whether
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`an offense is a crime of violence under the elements clause, “courts use
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`the categorical approach,” where “the facts of a given case are irrelevant,”
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`and “[t]he focus is instead on whether the elements of the statute of
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`conviction meet the federal standard.” Borden, 141 S. Ct. at 1822. “If
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`any—even the least culpable—of the acts criminalized do not entail th[e]
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`kind of force [required by the elements clause], the statute of conviction
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`does not categorically match the federal standard, and so cannot serve as
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`[a § 924(c)] predicate.” Id. In recent years, the Court has explained that
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`the elements clause requires “violent force—that is, force capable of
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`causing physical pain or injury to another person.” Johnson v. United
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`States, 559 U.S. 133, 140 (2010). And a criminal offense requiring only a
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`mens rea of recklessness does not qualify. Borden, 141 S. Ct. 1817.
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`9
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`An additional complication comes if a statute “list[s] elements in
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`the alternative, and thereby define[s] multiple crimes.” Mathis v. United
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`States, 579 U.S. 500, 505 (2016). A statute that lists alternative
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`elements—as opposed to listing “various factual means of committing a
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`single element”—is called “divisible.” Id. at 505-06; see also id. at 517-19
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`(guidance on determining if statute lists alternative elements or means).
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`To decide which alternative crime the defendant was convicted of under
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`a “divisible” statute, courts apply the “modified categorical approach,”
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`allowing them to “look[ ] to a limited class of documents (for example, the
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`indictment, jury instructions, or plea agreement and colloquy).” Id.
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`B. Given His Unchallenged Life Sentences,
`This Court Should Decline to Review
`Cooper’s Arguments
`This Court should decline review of Cooper’s appeal under the
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`“concurrent-sentence doctrine,” a close cousin of harmless-error review.
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`Under that doctrine, when a favorable decision on a defendant’s
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`collateral-review claim “would not shorten the amount of time he will
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`spend incarcerated,” an appellate court may “decline to review the merits
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`of his challenge.” Kassir v. United States, 3 F.4th 556, 561 (2d Cir. 2021);
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`see also id. at 561-69 (describing history and application of doctrine). “The
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`10
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`concept underlying this doctrine is simple: there is no use expending the
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`limited resources of the litigants and the judiciary reviewing a conviction
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`where, regardless of the outcome, the defendant will remain subject to
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`the same sentence.” Duka v. United States, 27 F.4th 189, 194 (3d Cir.
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`2022). The concurrent-sentence doctrine is “premised on the same
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`principle underlying the doctrine of harmless error,” and sometimes even
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`described in terms of harmless-error review. Kassir, 3 F.4th at 561-63.
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`Despite its name, the doctrine applies with full force to nominally
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`“consecutive” § 924(c) sentences that follow life sentences: “in the context
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`of a sentence to run consecutively to an unchallenged life sentence,” the
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`designation of consecutive or concurrent “is a distinction without a
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`difference.” Duka, 27 F.4th at 194-95; accord Al-’Owhali v. United States,
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`36 F.4th 461, 467 (2d Cir. 2022).
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`In Ray v. United States, 481 U.S. 736 (1987) (per curiam), the
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`Supreme Court limited the use of the concurrent-sentence doctrine in
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`challenges to convictions on direct appeal, holding that the monetary
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`special assessment that accompanies each count provides an independent
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`ground for reviewing the conviction. See United States v. Agramonte, 276
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`F.3d 594, 598 (D.C. Cir. 2001). Collateral § 2255 review, however, focuses
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`11
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`USCA Case #22-3051 Document #1974416 Filed: 11/21/2022 Page 12 of 27
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`on “custody,” so the special assessment cannot justify collateral review.
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`See Duka, 27 F.4th at 195-96; Kassir, 3 F.4th at 566-67; Ryan v. United
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`States, 688 F.3d 845, 849 (7th Cir. 2012). And like harmlessness, an
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`appellate court may invoke the doctrine even when the district court did
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`not. See, e.g., Agramonte, 276 F.3d at 598; Al-’Owhali, 36 F.4th at 465-66;
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`Kassir, 3 F.4th at 561.
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`Because Cooper has not challenged his convictions for Counts 1 and
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`2, which each carried a mandatory sentence of life imprisonment, the
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`concurrent-sentence doctrine applies with full force here. Indeed, the
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`posture here is identical to Duka, where the Third Circuit declined to
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`resolve a dispute about a dated § 924(c) conviction, since the defendants
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`would be serving life sentences either way. As in Duka, “there is no use
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`in expending the limited resources of the litigants and the judiciary
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`reviewing a conviction” that will not change the practical sentence. 27
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`F.4th at 194. This Court should decline review, without prejudice to
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`Cooper’s ability to raise these challenges if they make a practical
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`difference in the future. See Kassir, 3 F.4th at 569.1
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`1 Other procedural bars may also bar Cooper’s claim. In the district court,
`we argued that Cooper had not established “cause” and “prejudice” for
`(continued . . . )
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`12
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`§ 924
`the Six Remaining
`C. Each of
`Convictions Is Supported by a Crime of
`Violence
`Cooper’s claims also fail on the merits. Each of Cooper’s § 924
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`conviction has at least one valid predicate that certainly qualifies as a
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`“crime of violence” (ECF 30 n.20). See United States v. Crawley, 2 F.4th
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`257, 263 (4th Cir. 2021).2
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`1. Counts 7 and 25
`Counts 7 and 25 rest on Maryland armed robbery and Hobbs Act
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`robbery.
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`This Court has already held that Maryland armed robbery (also
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`called Maryland robbery with a dangerous weapon) is a crime of violence.
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`See United States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016). Redrick
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`remains binding precedent. While it is true that the district court did not
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`failing to raise his challenges on direct appeal (see ECF 170 at 9-10).
`Given the district court’s rejection of that argument (see ECF 175 at
`9-12), however, we do not argue that those procedural bars are beyond
`“debate.” If this court issues a COA, however, we may again raise that
`argument in merits briefing. We may likewise argue in merits briefing
`that Cooper is not “claiming the right to be released,” as required by
`§ 2255(a), given his life sentences.
`2 We do not address every potentially valid predicate here, focusing
`instead on those predicates beyond reasonable “debate.”
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`13
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`rely on Maryland armed robbery, Cooper acknowledges that it was a
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`charged predicate for Counts 7 and 25 (see COA 9-10). And the fact that
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`Cooper “takes exception to Redrick’s ruling” (COA 10) does not make it
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`any less binding. Given on-point precedent on this very crime, there is no
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`reasonable debate that Maryland armed robbery is a crime of violence.
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`See also, e.g., United States v. Johnson, 945 F.3d 174, 179-81 (4th Cir.
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`2019) (holding Maryland robbery is a crime of violence); United States v.
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`Dickson, No. 19-4226, 2022 WL 2340553, at *1 (4th Cir. June 29, 2022)
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`(unpublished) (same).
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`In any event, even if this Court were inclined to revisit Redrick,
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`overruling it would have no effect on this case. That is because every
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`other circuit has held that completed Hobbs Act robbery is also a crime
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`of violence under the elements clause. See United States v. Garcia-Ortiz,
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`904 F.3d. 102, 109-10 (1st Cir. 2018); United States v. Hill, 890 F.3d 51,
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`60 (2d Cir. 2018); United States v. Robinson, 844 F.3d 137, 140-41 (3d
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`Cir. 2016); United States v. Mathis, 932 F.3d 242, 265-66 (4th Cir. 2019);
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`United States v. Buck, 847 F.3d 267, 274-75 (5th Cir. 2017); United States
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`v. Gooch, 850 F.3d 285, 292 (6th Cir. 2017); United States v. Fox, 878 F.3d
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`574, 579 (7th Cir. 2017); United States v. House, 825 F.3d 381, 387 (8th
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`14
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`Cir. 2016); United States v. Howard, 650 Fed. Appx. 466, 468 (9th Cir.
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`2016) (unpublished); United States v. Mendez, 992 F.2d 1488, 1491 (9th
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`Cir. 1993); United States v. Melgar-Cabrera, 892 F.3d 1053 (10th Cir.
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`2018); In re St. Fleur, 824 F.3d 1337, 1341 (11th Cir. 2016); see also
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`United States v. Eshetu, 863 F.3d 946, 961 (D.C. Cir. 2017) (Millett, J.,
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`concurring). Indeed, the Ninth Circuit refused to issue a certificate of
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`appealability on this issue. See Troiano v. United States, 918 F.3d 1082,
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`1088 (9th Cir. 2019).
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`That is not surprising. Robbery is the “quintessential” crime of
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`violence, Stokeling v. United States, 139 S. Ct. 544, 551 (2019), and the
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`Hobbs Act provides the typical federal version of robbery. In fact, Hobbs
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`Act robbery has served—without objection—as a predicate offense for
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`multiple Supreme Court cases interpreting Section 924(c). See, e.g.,
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`Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013); United States v.
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`O’Brien, 560 U.S. 218, 222 (2010); see also Davis, 139 S. Ct. at 2325
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`(casting no doubt on lower court’s holding that completed Hobbs Act
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`robbery meets elements clause).
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`The recent decision in United States v. Taylor, 142 S. Ct. 2015
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`(2022), in no way undermines that consensus (cf. COA 12-13). Taylor held
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`15
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`USCA Case #22-3051 Document #1974416 Filed: 11/21/2022 Page 16 of 27
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`that attempted Hobbs Act robbery does not categorically qualify as a
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`“crime of violence,” because a defendant could be convicted without
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`actually using, attempting to use, or threatening to use force, as long as
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`he takes a “substantial step” toward robbery. Id. at 2021. As the Eleventh
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`Circuit recently summarized, “[a]lthough the elements clause covers the
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`use of force, the attempt to use force, and the threat to use force, it does
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`not cover attempts to threaten the use of force”; thus, “the Supreme Court
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`reasoned that a conviction for attempted Hobbs Act robbery falls outside
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`the elements clause.” Alvarado-Linares v. United States, 44 F.4th 1334
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`(11th Cir. 2022). But Taylor made clear that it was not addressing
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`completed Hobbs Act robbery. See 142 S. Ct. at 2020 (“Whatever one
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`might say about completed Hobbs Act robbery, attempted Hobbs Act
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`robbery does not satisfy the elements clause.”). And after Taylor, courts
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`continue to hold that completed Hobbs Act robbery qualifies, because
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`attempted threats cannot sustain a conviction for completed robbery. See
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`United States v. Baker, 49 F.4th 1348, 1360 (10th Cir. 2022); United
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`States v. Moore, No. 22-1899, 2022 WL 4361998, at *1 (8th Cir. Sept. 21,
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`2022) (unpublished).
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`USCA Case #22-3051 Document #1974416 Filed: 11/21/2022 Page 17 of 27
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`Cooper makes two familiar arguments for why Hobbs Act robbery
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`allegedly does not meet the elements clause (COA 10-13). But for good
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`reason, these arguments have been consistently rejected.
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`First, contrary to Cooper’s contention here, Hobbs Act robbery
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`requires more than de minimis force (or threats of force) against property
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`(cf. COA 11-12). See, e.g., United States v. Anglin, 846 F.3d 954, 964-65
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`(7th Cir. 2017) (explaining that Hobbs Act robbery requires, at a
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`minimum, putting a victim in “fear of injury,” which necessarily involves
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`the use or threatened use of force), cert. granted, judgment vacated on
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`other grounds, Anglin v. United States, 138 S. Ct. 126 (2017); Mathis, 932
`
`F.3d at 266 (same); United States v. Kayarath, 822 F. App’x 786 (10th
`
`Cir. 2020) (unpublished) (rejecting argument that Hobbs Act robbery
`
`requires use or threatened use only of “de minimis force,” because placing
`
`victim in fear involves use or threatened use of violent force); cf. United
`
`States v. Melaku, 41 F.4th 386, 394 (4th Cir. 2022) (holding that separate
`
`statute punishing “depredation” of government property, 18 U.S.C.
`
`§ 1361, is not a crime of violence, while explaining that ruling does not
`
`undermine cases holding that Hobbs Act robbery is a crime of violence).
`
`17
`
`
`
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`USCA Case #22-3051 Document #1974416 Filed: 11/21/2022 Page 18 of 27
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`Although the defense bar has been making this “de minimis” argument
`
`for years, Cooper identifies no decision accepting it.
`
`Second, the fact that Hobbs Act robbery may be accomplished by
`
`threatening the use of force against the victim’s property does not remove
`
`it from the definition of “crime of violence.” As the Fourth Circuit has
`
`noted, § 924(c) expressly includes the “use, attempted use, or threatened
`
`use of physical force against the person or property of another.” See
`
`Mathis, 932 F.3d at 266. Nor is there any merit to Cooper’s suggestion
`
`(at 12-13) that Hobbs Act robbery can be accomplished by merely placing
`
`a victim in fear of non-violent injury to his intangible property, without
`
`the use of force. Rather, the Hobbs Act’s inclusion of “fear of injury”
`
`among the means of committing robbery, see 18 U.S.C. § 1951(b)(1), is
`
`equivalent to traditional robbery by “intimidation,” requiring a threat of
`
`force. See, e.g., Mathis, 932 F.3d at 265-66; United States v. Walker, 990
`
`F.3d 316, 325-26 (3d Cir. 2021), cert. granted, judgment vacated in light
`
`of Taylor, 142 S. Ct. 2858 (2022). And there is no reason to define
`
`“property” in the Hobbs Act differently from “property” in the elements
`
`clause by, for example, including “intangible” property in only the former
`
`definition. Cooper cites a lonely California district court accepting this
`
`18
`
`
`
`
`USCA Case #22-3051 Document #1974416 Filed: 11/21/2022 Page 19 of 27
`
`latter argument. See United States v. Chea, No. 98-CR-20005-1 CW, 2019
`
`WL 5061085, at *10 (N.D. Cal. Oct. 2, 2019) (unpublished). But as the
`
`Seventh Circuit has explained, that unpublished decision violates
`
`contemporaneous Ninth Circuit precedent and has found no other takers.
`
`See United States v. Morrow, 5 F.4th 808, 817 (7th Cir. 2021).
`
`2. Count 12: Maryland Armed Robbery
`and Maryland Attempted First-
`Degree Murder
`Next, Count 12’s predicates are Maryland armed robbery and
`
`Maryland attempted first-degree murder.
`
`Again, Redrick holds that Maryland armed robbery is a crime of
`
`violence, which alone is sufficient to sustain Count 12’s § 924(c)
`
`conviction. See 841 F.3d 478; see also Johnson, 945 F.3d at 179-81.
`
`In addition, Maryland attempted first-degree murder is a crime of
`
`violence. The indictment charges attempted murder under the long-
`
`repealed “27 MD. Code, Sections 407 and 411A(b)” (ECF 1 at 6). Section
`
`407 was the first-degree murder statute, covering murder “perpetrated
`
`by means of poison, or lying in wait, or by any kind of wilful, deliberate
`
`and premeditated killing.” Section 411A(b) was for attempted first-
`
`degree murder (while Section 411A(a) covered attempted second-degree
`
`19
`
`
`
`
`USCA Case #22-3051 Document #1974416 Filed: 11/21/2022 Page 20 of 27
`
`murder). Premeditated murder is “[u]ndoubtedly” a crime of violence.
`
`United States v. Jackson, 32 F.4th 278, 287 (4th Cir. 2022) (discussing
`
`federal premeditated murder). It requires an intentional mens rea and
`
`violent force. Id. Attempted premeditated murder, in turn, requires the
`
`same mens rea and an attempt to use violent force, satisfying the
`
`elements clause.
`
`Cooper’s counterargument rest on the false premise that he was
`
`convicted for assault with intent to murder, which he thinks includes
`
`second-degree murder. He argues that assault and “depraved heart”
`
`second-degree murder can both rest on omissions, and thus are not
`
`crimes of violence (COA 14-16). In holding that Maryland assault with
`
`intent to murder is indeed a crime of violence, the Fourth Circuit
`
`discussed the precedents Cooper cites and explained why they do not
`
`support his claims. See United States v. Battle, 927 F.3d 160, 167-68 (4th
`
`Cir. 2019). More importantly, though, those theories do not address the
`
`actual charged crime: attempted first-degree murder. And attempted
`
`first-degree murder categorically requires an attempt to use force against
`
`another person.
`
`20
`
`
`
`
`USCA Case #22-3051 Document #1974416 Filed: 11/21/2022 Page 21 of 27
`
`3. Counts 36, 39, and 42
`Finally, each § 924(j) conviction in Counts 36, 39, and 42 is
`
`predicated on D.C. first-degree premedicated murder.3
`
`D.C. first-degree premeditated murder indisputably qualifies as a
`
`crime of violence. Murder requires violent force—indeed, “the greatest
`
`physical injury imaginable.” Jackson, 32 F.4th at 287. And premeditation
`
`likewise requires the highest possible mens rea. See id.
`
`Cooper does not, and could not, dispute that D.C. premeditated
`
`murder is a crime of violence. Instead, he offers a passing assertion that
`
`the D.C. first-degree murder statute, which includes both premeditated
`
`murder and felony murder, is “indivisible.” See COA 17 (quoting D.C.
`
`Code § 22-2401 (1997)). Proceeding from that mistaken premise, Cooper
`
`argues that because felony murder is not a “crime of violence,” no D.C.
`
`first-degree murder is a crime of violence (COA 17-20).
`
`
`3 The district court based its decision on federal premediated murder,
`which Cooper’s § 924(j)(1) convictions were also required to satisfy. The
`government recognizes, however, that some other circuits have required
`the § 924(c) conviction underlying the § 924(j) conviction to itself be a
`crime of violence, so upholding the convictions based on the federal
`murder requirements is not beyond “debate.” See, e.g., Wallace v. United
`States, 43 F.4th 595, 601 (6th Cir. 2022); United States v. McClaren, 13
`F.4th 386, 419 (5th Cir. 2021).
`
`21
`
`
`
`
`USCA Case #22-3051 Document #1974416 Filed: 11/21/2022 Page 22 of 27
`
`But the statute plainly is divisible. First, and most importantly,
`
`D.C. case law treats these as separate crimes. See Mathis, 579 U.S. at
`
`517-18. A defendant must be separately charged, convicted, and
`
`sentenced for D.C. first-degree premeditated murder and D.C. felony
`
`murder, allowing the appellate court to review the convictions separately
`
`before remanding for merger if both convictions are valid. See Garris v.
`
`United States, 491 A.2d 511, 514-15 (D.C. 1985); accord Robinson v.
`
`United States, 890 A.2d 674, 686 (D.C. 2006); Green v. United States, 718
`
`A.2d 1042, 1063 & n.28 (D.C. 1998); Thacker v. United States, 599 A.2d
`
`52, 63-64 & n.16 (D.C. 1991). And the justification for merger—“[w]hen
`
`there is only one killing, the defendant may not be convicted of more than
`
`one murder,” Thacker, 599 A.2d at 63—does not suggest that these are
`
`the same crime; the same rule applies to a conviction for first-degree
`
`murder and second-degree murder. See, e.g., Portillo v. United States, 62
`
`A.3d 1243, 1260 (D.C. 2013).
`
`Second, the face of the statute likewise makes clear that
`
`premeditated murder and felony murder have different elements, and
`
`are thus distinct crimes. See Mathis, 579 U.S. at 518. Perhaps most
`
`strikingly, premeditated murder has the highest known mens rea for the
`
`22
`
`
`
`
`USCA Case #22-3051 Document #1974416 Filed: 11/21/2022 Page 23 of 27
`
`killing (“deliberate and premeditated malice”), while felony murder has
`
`the lowest (“without purpose to do so”). And the standard Redbook jury
`
`instructions for the two charges bear little resemblance to each other. See
`
`D.C. Criminal Jury Instructions § 4205(I)-(II) (5th ed. 2021). It makes no
`
`sense to think of these as mere “alternative means” of committing a single
`
`coherent crime.
`
`Third, the record in this case confirms the point. See Mathis, 579
`
`U.S. at 518-19. Separate counts charge first-degree premeditated murder
`
`(Counts 34, 37, and 40) and first-degree felony murder (Counts 35, 38,
`
`and 41) for each victim (ECF 1 at 35-40). And the judgment lists separate
`
`convictions for each, carrying separate (though concurrent) sentences
`
`(ECF 160).
`
`Fourth, and finally, courts interpreting the parallel federal statute,
`
`which likewise combines first-degree premeditated and felony murder in
`
`a single statute, have similarly found the federal statute divisible. See
`
`Jackson, 32 F.4th at 285-87; see also ECF 173 at 32-34.
`
`Because D.C. first-degree premediated murder is a separate crime,
`
`and it categorically requires the “use of force,” it satisfies the elements
`
`clause.
`
`23
`
`
`
`
`USCA Case #22-3051 Document #1974416 Filed: 11/21/2022 Page 24 of 27
`
`D. The District Court Had Clear Discretion
`to Deny Plenary Resentencing
`Finally, the district court clearly had discretion to remedy the
`
`invalid convictions for Counts 16 and 46 by vacating their consecutive
`
`sentences—lowe
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