The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 14, 2023 Decided June 14, 2024
No. 22-3033
UNITED STATES OF AMERICA,
APPELLEE
v.
GERALD SMITH,
APPELLANT
Consolidated with 22-3080
Appeals from the United States District Court
for the District of Columbia
(No. 1:95-cr-00154-8)
Gregory Stuart Smith, appointed by the court, argued
the cause and filed the briefs for appellant.
Michael E. McGovern, Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief were Chrisellen
R. Kolb and Elizabeth H. Danello, Assistant U.S. Attorneys.
2
Before: MILLETT and PAN, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: Three decades ago, Gerald
Smith was convicted of murder, kidnapping, and drug
trafficking charges. Under the then-mandatory sentencing
guidelines, he was sentenced to multiple life sentences on his
federal-law convictions, life without parole on several murder
convictions under District of Columbia law, and a further term
of 65 years for various “crimes of violence,” 18 U.S.C.
§ 924(c)(3), set to run consecutively to his life sentences.
In 2018, Congress passed the First Step Act, which allows
courts to resentence defendants convicted for certain drug
crimes that carry lighter sentences today than at the time of
sentencing. Then, in 2019, the Supreme Court held
unconstitutionally vague one aspect of the “crime-of-violence”
definition set forth in 18 U.S.C. § 924(c)(3). See United States
v. Davis, 588 U.S. 445, 470 (2019). Smith asks for vacatur of
his crime-of-violence convictions and for First Step Act
resentencing for other convictions. The district court denied
both forms of relief. We affirm in all relevant respects. 1
I
A
Federal law imposes enhanced punishment for the use of
a firearm in connection with a federal “crime of violence or
1
As the parties have agreed, we enter a limited remand for the
district court to correct Smith’s order of judgment and conviction to
comport with our earlier decision in his case.
3
drug trafficking crime[.]” 18 U.S.C. § 924(c)(1)(A).
Specifically, in addition to any sentence imposed for an
underlying crime, Section 924(c) imposes an additional
sentence, with minimums from 5 to 30 years if the underlying
crime is a “crime of violence” or a drug-trafficking crime and
involved a specified use of certain firearms. Id.
§ 924(c)(1)(A)–(C). Sentences under Section 924(c) may not
run concurrently with any other sentence, including that of the
underlying crime of violence or drug trafficking crime. Id.
§ 924(c)(1)(D)(ii). That means that a conviction under
Section 924(c) requires “long prison sentences” on top of
whatever other sentence a defendant already faces. Davis, 588
U.S. at 448.
This case implicates Section 924(c)’s application to a
“crime of violence,” which is defined as:
an offense that is a felony and—
(A) has as an element the use, attempted use, or
threatened use of physical force against the
person or property of another, or
(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.
18 U.S.C. § 924(c)(3)(A)–(B). Clause (A) is commonly
referred to as the “elements clause,” while Clause B is known
as the “residual clause.”
The Supreme Court invalidated Section 924(c)’s residual
clause as unconstitutionally vague in United States v. Davis,
588 U.S. 445 (2019). As a result, Section 924(c)’s enhanced
4
penalty now applies only if the relevant offense satisfies the
elements clause’s requirement that the crime include as an
element the actual, attempted, or threatened use of physical
force.
To determine whether a particular conviction satisfies the
elements clause, courts “apply a ‘categorical approach’”
because the text of the elements clause focuses on the legal
“elements” of the underlying crime, not an individual’s
conduct in committing it. United States v. Taylor, 596 U.S.
845, 850 (2022); id. (The elements clause “precludes * * * an
inquiry into how any particular defendant may commit the
crime.”). Consequently, in applying the elements clause,
courts must determine “whether the federal felony at issue ‘has
as an element the use, attempted use, or threatened use of
physical force.’” Id. (quoting 18 U.S.C. § 924(c)(3)(A)).
Several other provisions of federal law employ similarly
or even identically worded elements clauses. See, e.g., 18
U.S.C. § 924(e)(2)(B)(i) (defining a “violent felony” under the
Armed Career Criminal Act (“ACCA”) as a felony offense that
“has as an element the use, attempted use, or threatened use of
physical force against the person of another”); id.
§ 921(a)(33)(A)(ii) (defining “the term ‘misdemeanor crime of
domestic violence’” to include an offense that, among other
things, “has, as an element, the use or attempted use of physical
force”); see also UNITED STATES SENT’G GUIDELINES MANUAL
§ 4B1.2(a)(1) (defining “crime of violence” to mean any crime
punishable by more than one year that “has as an element the
use, attempted use, or threatened use of physical force against
the person of another”). Cases interpreting these other
provisions provide helpful guideposts in our application of
Section 924(c)(3)(A). See, e.g., United States v. Carr, 946 F.3d
598, 604 (D.C. Cir. 2020).
5
B
Concerned with sentencing disparities between powder
and crack cocaine offenses, Congress passed the 2010 Fair
Sentencing Act, which “raised the crack-cocaine threshold
quantities for triggering certain penalty ranges” for various
drug convictions. United States v. White, 984 F.3d 76, 80 (D.C.
Cir. 2020); see Fair Sentencing Act of 2010, Pub. L. 111-220,
124 Stat. 2372 (2010). Those changes did not apply
retroactively. White, 984 F.3d at 80.
Congress subsequently authorized courts to grant
retroactive relief through the First Step Act of 2018, which
authorized sentencing courts to “impose a reduced sentence as
if sections 2 and 3 of the Fair Sentencing Act * * * were in
effect at the time the covered offense was committed.” First
Step Act, Pub. L. 115–391, § 404(b), 132 Stat. 5194, 5222
(2018) (emphasis added), 21 U.S.C. § 841 note (Application of
Fair Sentencing Act); see White, 984 F.3d at 80 (The First Step
Act “allow[ed] persons to seek reduced sentences if they
committed certain ‘covered offense[s]’ * * * prior to the
enactment of the Fair Sentencing Act.”).
The First Step Act defines the “covered offense[s]” to
which it applies as any “violation of a Federal Criminal statute,
the statutory penalties for which were modified by section 2 or
3 of the Fair Sentencing Act of 2010[,] * * * that was
committed before” the Fair Sentencing Act’s enactment. 21
U.S.C. § 841 note (Application of Fair Sentencing Act). The
Act underscores, though, that “[n]othing in this section shall be
construed to require a court to reduce any sentence pursuant to
this section.” Id.
6
C
In 1995, a grand jury indicted Smith on 21 separate
charges under federal law and the District of Columbia code,
including drug distribution, murder, and kidnapping. The
charges arose from Smith’s role as an “enforcer” for the Fern
Street Crew. A jury convicted Smith on all charges.
The then-mandatory Sentencing Guidelines required that
Smith be sentenced to life imprisonment on several of his
federal charges, including drug conspiracy under 21 U.S.C.
§ 846, RICO conspiracy under 18 U.S.C. §§ 1962(d) and
1963(a), and continuing criminal enterprise (“CCE”) murder
and kidnapping under 21 U.S.C. § 848. Based on the CCE
convictions, Smith also received three twenty-year sentences
and one five-year sentence for “crimes of violence” under 18
U.S.C. § 924(c), which ran consecutive to (i.e., in addition to)
his life sentences. Smith was separately sentenced to life
without parole for his murder convictions under the District of
Columbia Code.
On Smith’s direct appeal, this court upheld all of Smith’s
convictions and his sentence, with the exception of one felony-
murder conviction under the D.C. Code and one attempted
robbery conviction. United States v. Sumler, 136 F.3d 188, 189
n.1 (D.C. Cir. 1998).
After the Supreme Court struck down Section 924(c)’s
residual clause as unconstitutional, Smith filed a Section 2255
petition arguing that the four CCE convictions underlying his
Section 924(c) convictions do not qualify as “crimes of
violence” under Section 924(c)’s elements clause. United
States v. Smith, 605 F. Supp. 3d 1, 15 (D.D.C. 2022). He
argued that the elements of his underlying offenses did not
7
categorically require the actual, attempted, or threatened use of
force against another. Id. at 17–24.
The government agreed with Smith that his federal
kidnapping conviction could be accomplished without force
and therefore did not satisfy the elements clause, and so the
associated Section 924(c) conviction should be vacated. Smith,
605 F. Supp. 3d at 17. But the government argued that Smith’s
crime-of-violence convictions for CCE murder each satisfied
Section 924(c)’s elements clause. Id. at 18.
The district court agreed with the government, vacating
Smith’s kidnapping “crime of violence” conviction but
denying Smith’s motion as to the three CCE-murder
convictions. Smith, 605 F. Supp. 3d at 24. The court also read
the CCE murder statute to require intentional action. In doing
so, the court rejected Smith’s argument that a conviction for
CCE murder could be based on a mens rea of mere
recklessness, which Smith claimed would not satisfy Section
924(c). Id. at 20–23. The court likewise rejected Smith’s
arguments that a conviction for CCE murder could be
accomplished without the use of force. Id. at 23–24. The
district court subsequently granted Smith a certificate of
appealability as to these rulings.
While Smith’s Section 2255 petition was pending in
district court, Smith also filed a motion for a sentence reduction
under Section 404(b) of the First Step Act. He argued that
several of his convictions were “covered offenses,” and that
resentencing on any of them could justify resentencing on
several of his other convictions.
The district court denied Smith’s motion in full. United
States v. Smith, No. 95-cr-154, 2022 WL 10449599, at *17
(D.D.C. Oct. 17, 2022). The court concluded that only Smith’s
8
convictions for drug distribution conspiracy and RICO
conspiracy were eligible for sentence reductions under the First
Step Act. Id. at *8–10. The court then declined to reduce
Smith’s sentences on those convictions due to (1) the
“seriousness” of Smith’s offense conduct, (2) his “terrible
behavioral record while incarcerated,” (3) the irrelevance of
Smith’s sentences on these convictions to his expected carceral
term given his concurrent life sentences, and (4) the “strong
practice against the issuance of advisory opinions[.]” Id. at
*15. In addition, the court held that it lacked the authority to
reopen Smith’s sentences as to non-covered offenses. Id. at
*11–13.
Smith appeals both the denial of his Section 2255 petition
to vacate his crime-of-violence convictions and the denial of a
sentence reduction under the First Step Act.
II
The district court had jurisdiction under 28 U.S.C.
§ 2255(a) and under Section 404 of the First Step Act. We
have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C.
§§ 1291 and 2255(d).
As to Smith’s Section 2255 motion, we review the district
court’s factual findings for clear error and its legal conclusions
de novo. United States v. Askew, 88 F.3d 1065, 1070 (D.C. Cir.
1996). For Smith’s First Step Act motion, we review questions
of statutory interpretation de novo. White, 984 F.3d at 85. Our
review of the ultimate choice of whether to grant a sentence
reduction is “deferential” and “should not be overly
searching.” Concepcion v. United States, 597 U.S. 481, 501
(2022).
9
III
A
At the outset, the Government urges us to reject Smith’s
challenges to his Section 924(c) convictions without reviewing
the merits under the “concurrent-sentence doctrine.”
Specifically, the Government argues that, because Smith’s
twenty-year sentences for his Section 924(c) convictions
would begin to run only after Smith’s multiple life sentences,
vacatur of those convictions would offer Smith no practical
relief.
As its name suggests, the concurrent-sentence doctrine
relates primarily to challenges to sentences, not convictions.
United States v. Agramonte, 276 F.3d 594, 598 (D.C. Cir.
2001). Because a conviction ordinarily carries consequences
beyond the term of imprisonment, the concurrent-sentence
doctrine has had no place in direct appeals of convictions,
rather than sentences. See Ray v. United States, 481 U.S. 736,
737 (1987) (rejecting application of “concurrent-sentence”
doctrine to challenges to multiple convictions, since each
conviction carried independent $50 assessments); see also
Agramonte, 276 F.3d at 598 (noting that Ray “spelled the death
knell for the concurrent sentence doctrine as applied to review
of convictions”).
Nevertheless, some courts have extended the doctrine to
habeas challenges when a defendant’s overlapping sentences
mean that even a successful challenge to one conviction may
not result in any reduction in custody. See, e.g., Ruiz v. United
States, 990 F.3d 1025, 1033 (7th Cir. 2021). That extension
has not been without controversy. See id. at 1035–1041
(Wood, J., dissenting) (arguing the doctrine has no application
to habeas challenges to convictions).
10
We need not wade into that debate here because the
government forfeited its concurrent-sentence argument by
failing to raise it before the district court. See Nemariam v.
Federal Democratic Republic of Ethiopia, 491 F.3d 470, 483
(D.C. Cir. 2007) (“[A]bsent exceptional circumstances, the
court of appeals is not a forum in which a litigant can present
legal theories that it neglected to raise in a timely manner in the
proceedings below.”) (quoting Grant v. United States Air
Force, 197 F.3d 539, 542 (D.C. Cir. 1999)); Krieger v. Fadely,
211 F.3d 134, 135 (D.C. Cir. 2000) (“[N]eglect in the district
court at least ‘forfeited’ [the] right to raise the issue in this
court.”) (quoting United States v. Olano, 507 U.S. 725, 732
(1993)).
In addition, the government affirmatively argued below
that one of Smith’s Section 924(c) convictions (for kidnapping)
should be vacated, and the district court agreed. Smith, 605 F.
Supp. 3d at 17–18. That position is inconsistent with the
government’s invocation of the concurrent-sentence doctrine
here.
Worse still, the primary reason for the concurrent-
sentence doctrine is to “conserve judicial resources[.]” Kassir
v. United States, 3 F.4th 556, 561–562 (2d Cir. 2021); see Ruiz,
990 F.3d at 1033. Yet due to the government’s tardiness in
raising the issue, Smith’s substantive legal challenges already
were extensively briefed below and addressed by the district
court in a thorough opinion. They have now also been fully
briefed and argued in this court. Any opportunity to conserve
judicial resources has long since passed. See United States v.
Benton, 24 F.4th 309, 315–316 (4th Cir. 2022) (rejecting
government’s request to apply concurrent-sentence doctrine in
similar circumstances where the argument was not raised
before the district court).
11
Even were the issue preserved, the Government and all
circuits to have considered the doctrine in this context agree
that the doctrine is discretionary. Gov’t Br. 22–25; Benton, 24
F.4th at 315 (describing the doctrine as “purely discretionary”)
Kassir, 3 F.4th at 565 (likewise describing the doctrine as
“discretionary”); Ruiz, 990 F.3d at 1033 (similar); Duka v.
United States, 27 F.4th 189, 191 (3d Cir. 2022) (similar).
Under the circumstances presented in this case, where the
doctrine’s application has been forfeited and its purpose of
judicial economy is not in any way furthered, we find no good
reason for deciding the doctrine’s applicability in a novel
context.
B
Turning to the merits, Smith makes two arguments for
vacating his Section 924(c) convictions. First, he argues that
his convictions do not categorically require proof of the use,
attempted use, or threatened use of force. Second, he argues
that the convictions lack the necessary mens rea for force
“against” another under Borden v. United States, 593 U.S. 420
(2021). Neither argument succeeds.
1
a
By way of reminder, to qualify as a “crime of violence”
under Section 924(c)’s elements clause, the felony of
conviction must “ha[ve] 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). Because
CCE murder applies only in cases where an intentional killing
takes place, the plain text of the statute categorically requires
the use of physical force against another.
12
The CCE murder statute applies to those who
“intentionally kill”: conduct that necessarily involves the use
of force against the victim. 21 U.S.C. § 848(e)(1)(A). It also
applies to those who, while not themselves directly employing
deadly force, “counsel[], command[], induce[], procure[], or
cause[] the intentional killing of an individual” when “such
killing results.” Id. Congress added those additional grounds
of culpability “to reach the ‘top brass’” who order killings, “not
[just] the lieutenants and foot soldiers” who carry out the
orders. Garrett v. United States¸ 471 U.S. 773, 781 (1985).
Either way—whether the defendant “intentionally kills” a
victim or instead “counsels, commands, induces, procures, or
causes the intentional killing of an individual”— he cannot be
convicted for CCE murder unless the desired “[intentional]
killing results[.]” 21 U.S.C. § 848(e)(1)(A). By mandating
that an “intentional killing” occur, the statute necessarily
requires proof that the defendant, in one way or another, caused
physical force to be used on the victim. See, e.g., United States
v. Aguilar, 585 F.3d 652, 661–662 (2d Cir. 2009) (sustaining a
Section 924(c) enhancement for CCE murder for a defendant
who “procure[d]” or “induced” the murder of a former
romantic partner by offering to forgive the killers’ drug debts
upon commission of the crime). That also comports with the
statutory purpose of ensuring that the law punishes with equal
severity those who order the use of murderous force as those
who follow their bidding. 2
2
The requirement that the “intentional killing [in fact] result[]”
differentiates a conviction under 21 U.S.C. § 848(e)(1)(A) from
various “murder-for-hire” cases cited by Smith that do not require
that any killing actually occur, let alone an intentional one. Smith
Opening Br. 30; see United States v. Bowman, 873 F.3d 1035, 1042
13
In declining Smith’s invitation to write into Section 924(c)
a requirement that the defendant himself be the one to use
force, we are in good company. Eleven out of eleven courts of
appeals to have addressed the question have held that “aiding
and abetting a crime of violence is [itself] a crime of violence.”
United States v. Worthen, 60 F.4th 1066, 1070 (7th Cir. 2023);
see United States v. Garcia-Ortiz, 904 F.3d 102, 109 (1st Cir.
2018); Medunjanin v. United States, 99 F.4th 129, 135 (2d Cir.
2024); United States v. Stevens, 70 F.4th 653, 661–662 (3d Cir.
2023); United States v. Ali, 991 F.3d 561, 573–574 (4th Cir.
2021); United States v. Hill, 63 F.4th 335, 363 (5th Cir. 2023);
United States v. Richardson, 948 F.3d 733, 741–742 (6th Cir.
2020); Kidd v. United States, 929 F.3d 578, 581 (8th Cir.
2019); Young v. United States, 22 F.4th 1115, 1122–1123 (9th
Cir. 2022); United States v. Bailey, 972 F.3d 1179, 1182–1183
(10th Cir. 2020); In re Colon, 826 F.3d 1301, 1305 (11th Cir.
2016).
So too here: A person who “counsels, commands,
induces, procures, or causes the intentional killing of an
individual” that then “results” necessarily participates in the
physical force that causes the intended death, 21 U.S.C.
§ 848(e)(1)(A).
(8th Cir. 2017) (Murder-for-hire conviction that does not require
showing that a murder in fact occurred would not qualify as a crime
of violence “because it does not have ‘as an element the use,
attempted use, or threatened use of physical force against the person
or property of another.’”) (quoting 18 U.S.C. § 924(e)(2)(B)(i)).
Compare 18 U.S.C. § 1958(a) (making it a crime punishable by a
maximum of 20 years to “travel[] in or cause[] another * * * to travel
in interstate or foreign commerce * * * with intent that a murder be
committed”) (emphasis added), with id. (raising the maximum
penalty to life imprisonment or the death penalty only when “death
results”).
14
b
Smith disputes that intentionally causing another’s death
always requires force. He suggests, for instance, that poisoning
another would not involve the “use of physical force against
the person or property of another[.]” See Smith Opening Br.
28–29. He also proposes that killings accomplished through
omissions (such as by intentionally withholding food or
medicine) do not involve the “use of physical force.” Smith
Opening Br. 29; Smith Reply Br. 19–20.
Both arguments are incorrect. As for the poisoning
example, we have already held that poisoning someone counts
as using physical force “because the bodily injury caused by
the poison would necessarily involve the use of force within
the common law meaning[.]” Carr, 946 F.3d at 604; see id.
(applying use-of-force provision in U.S.S.G. § 4B1.2(a)(1),
which defines “crime of violence” to mean any crime
punishable by more than one year that “has as an element the
use, attempted use, or threatened use of physical force against
the person of another”); see also Johnson v. United States, 559
U.S. 133, 140 (2010) (“‘[P]hysical force’ means * * * force
capable of causing physical pain or injury to another person.”);
WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 16.2(b)
(2d ed. 2003) (Common law force “need not be applied directly
to the body of the victim,” and may be used “by administering
a poison or * * * even by resort to some intangible
substance.”).
The Supreme Court has said as much as well. In applying
an analogous use of “force” provision in United States v.
Castleman, 572 U.S. 157 (2014), the Court explained that the
“common-law concept of ‘force’ encompasses even its indirect
application[,]” id. at 170, and “need not be applied directly to
the body of the victim[,]” id. (quoting LAFAVE, supra
15
§ 16.2(b)); see id. (interpreting 18 U.S.C. § 921(a)(33)(A),
which provides that the crime of domestic violence includes an
offense that “has, as an element, the use or attempted use of
physical force”). In this sense, “physical force” means “simply
‘force exerted by and through concrete bodies,’ as opposed to
‘intellectual force or emotional force.’” Id. (quoting Johnson,
559 U.S. at 138). In so holding, the Supreme Court was
explicit that the use-of-force requirement could be satisfied
through use of poison, infection with disease, or “‘resort to
some intangible substance,’ such as a laser beam.” Id. (quoting
LAFAVE, supra, § 16.2(b)).
In short, precedent from both the Supreme Court and this
court close the door on Smith’s proposed distinction between
direct force (such as striking someone) and indirect force (such
as poisoning them).
Smith’s action-omission distinction fares no better. Smith
hypothesizes that someone might cause an intentional death by
omission—such as by depriving someone of food or vital
medicine—and thereby commit CCE murder without in fact
acting to use “force.” Smith Opening Br. 29–30; Smith Reply
Br. 19–21.
But intentionally withholding food or medicine with the
object of causing another person’s death—whether styled as an
“omission” or otherwise—involves deliberately causing bodily
injury through physical processes. And that, the Supreme
Court has held, counts as using force. Castleman, 572 U.S. at
170 (“It is impossible to cause bodily injury without applying
force[.]”); see Johnson, 559 U.S. at 140 (understanding violent
force in terms of the “capa[city] [to] caus[e] physical pain or
injury to another person”); Carr, 946 F.3d at 604 (“[I]f [the
defendant’s use of] poison causes bodily injury, then the
defendant has necessarily used force because ‘[i]t is impossible
16
to cause bodily injury without applying force in the common-
law sense.’”) (quoting Castleman, 572 U.S. at 170).
Leading criminal law treatises agree. See LAFAVE, supra,
§ 16.2(b) (Battery “may be committed, if the other elements of
the crime are present, by creating a situation under which the
victim injures himself * * * or even by a simple omission to act
where there is a duty to act[.]”) (emphasis added); id. § 16.2
(stating that “[c]riminal battery, sometimes defined briefly as
the unlawful application of force to the person of another[,]
* * * [includes] the defendant’s conduct (act or omission)”)
(emphasis added); WILLIAM L. BURDICK, THE LAW OF CRIME
§ 1.09 (1946) (“[S]ome very serious crimes may be committed
by an omission to perform a legal duty[,]” including “even
murder.”). 3
In concluding that a deliberate omission that results in an
intentional killing necessarily involves the use of force, we join
the law of eight other circuits. See United States v. Baéz-
Martinez, 950 F.3d 119, 132 (1st Cir. 2020) (“[A] serious
bodily injury must necessarily entail violent force under
Castleman’s reasoning of ‘injury, ergo force.’”); United States
v. Scott, 990 F.3d 94, 108 (2d Cir. 2021) (en banc) (“The
possibility of a defendant committing the crime by omission
warrants no different conclusion” as to whether an intentional
killing involves force.); United States v. Rumley, 952 F.3d 538,
3
Similarly, in discussing murder, the LaFave treatise is explicit
that “intentional death may be effectively brought about by an
omission to act * * * [when] there is a duty to act,” such as where a
parent fails to rescue a drowning child in the bathtub, intending that
the child die. LAFAVE, supra, § 14.2(c); see BURDICK, supra, § 1.09
(“Intent to take life, whether by an act of omission or commission,
distinguishes murder from manslaughter.”).
.
17
551 (4th Cir. 2020) (“[T]here is just as much a ‘use of force’
when a murderous parent uses the body’s need for food to
intentionally cause his child’s death as when that parent uses
the forceful physical properties of poison to achieve the same
result.”); United States v. Harrison, 54 F.4th 884, 889 (6th Cir.
2022) (“[I]n every murder, the murderer uses physical force in
some way to cause a death. That’s true even when murder is
carried out by omission rather than commission.”); United
States v. Waters, 823 F.3d 1062, 1066 (7th Cir. 2016)
(“[W]ithholding medicine causes physical harm, albeit
indirectly, and thus qualifies as the use of force under
Castleman.”); United States v. Peeples, 879 F.3d 282, 287 (8th
Cir. 2018) (“Because it is impossible to cause bodily injury
without force, it would also be impossible to cause death
without force” even through omission); United States v.
Ontiveros, 875 F.3d 533, 538 (10th Cir. 2017) (noting that
“omission to act where there is a duty to act” may qualify as
force) (quoting LAFAVE, supra, § 16.2(b)); United States v.
Jones, 906 F.3d 1325, 1329 (11th Cir. 2018) (“[I]ndirect
physical force—through the use of poison or other means—
still qualifies as violent physical force under the ACCA
elements clause.”).
Smith points to the Third Circuit’s decision in United
States v. Mayo, 901 F.3d 218 (3rd Cir. 2018), which held that
Pennsylvania’s aggravated assault statute did not satisfy the
ACCA’s use-of-force requirement when applied to acts of
omission, id. at 230. That decision, though, turned largely on
the court’s understanding of the term “physical force * * * as
interpreted by Pennsylvania courts.” Id. at 227 (formatting
modified; emphasis added). But how Pennsylvania courts
understand the term “force”—and, specifically, whether a
requirement that the defendant deliberately cause bodily injury
necessarily involves “force” for state-law purposes—has no
bearing on the question of what “physical force” means in a
18
federal statute. See Johnson, 559 U.S. at 138 (“The meaning
of ‘physical force’ in [the ACCA] is a question of federal law,
not state law.”).
To the extent the Third Circuit also considered federal law,
the court brushed past Castleman’s treatment of common-law
“force” as irrelevant to understanding “force” in ACCA’s
violent felony provisions. Mayo, 901 F.3d at 228–229. Yet
Castleman’s treatment of “physical force” as “force exerted by
and through concrete bodies” was drawn straight from
Johnson’s discussion of the same term in the context of violent
felonies. Castleman, 572 U.S. at 170 (citing Johnson, 559 U.S.
at 138). That shared understanding of force as involving the
intentional causation of physical processes does not distinguish
between “direct versus indirect” force or action versus
omission. Id.
In sum, whatever degree of force Section 924(c) requires,
intentionally causing an intentional killing necessarily meets
the statute’s requirement that force be used against another
person. That remains true whether the force is used “directly”
or “indirectly,” or is accomplished through action or omission.
Because the CCE-murder statute requires the defendant to
bring about another person’s intentional killing, it categorically
requires force within the meaning of Section 924(c). 4
4
Smith also invokes the Sixth Circuit’s decision in United
States v. Burris, 912 F.3d 386 (6th Cir. 2019). Smith Opening Br.
29–30; Smith Reply Br. 19–20. But Burris is not on point. There,
the Sixth Circuit found that a conviction under an Ohio aggravated-
assault statute did not categorically require force because “there
[wa]s at least a ‘realistic probability’ that a person may be convicted
* * * [under it for inflicting] certain serious mental harms without
using physical force[.]” Burris, 912 F.3d at 399 (emphasis added).
19
2
Smith separately argues that the CCE-murder statute can
be satisfied with a mens rea of mere recklessness, and that it
therefore cannot qualify as a crime of violence. That is
incorrect.
To begin, the Supreme Court has held that the analogous
use-of-force clause in the ACCA’s “violent felony” provision
requires a mens rea higher than recklessness. Borden, 593 U.S.
at 429 (plurality opinion); id. at 446 (Thomas, J., concurring in
the judgment). Because Section 924(e)’s definition of “violent
felony” requires that force be directed “against the person of
another[,]” the plurality opinion concluded that the statute
“demands that the perpetrator direct his action at, or target,
another individual”—a level of purpose that excludes
recklessness. Id. at 429 (plurality opinion). Concurring in the
judgment, Justice Thomas reasoned that the ACCA’s reference
to the “use of physical force * * * has a well-understood
meaning applying only to intentional acts designed to cause
harm[.]” Id. at 446 (Thomas, J., concurring in the judgment)
(quoting Voisine v. United States, 579 U.S. 686, 713 (2016)
(Thomas, J. dissenting)). As relevant here, five Justices agreed
that a mens rea of mere recklessness cannot support a “violent
felony” conviction under the ACCA.
Under either the plurality’s approach or Justice Thomas’s,
a crime that may be committed with merely reckless conduct is
The CCE-murder statute, by contrast, requires that an “intentional
killing” results and so cannot be satisfied with psychological harms
alone. 21 U.S.C. § 848(e)(1)(A); see Johnson, 559 U.S. at 138
(“distinguishing physical force from, for example, intellectual force
or emotional force”).
20
not a crime of violence under the ACCA. Borden, 593 U.S. at
434 (plurality opinion); id. at 446 (Thomas, J., concurring in
the judgment); see United States v. Epps, 707 F.3d 347, 348
(D.C. Cir. 2013) (When the Supreme Court issues a fractured
ruling, its holding consists of a “common denominator of the
Court’s reasoning * * * embody[ing] a position implicitly
approved by at least five Justices who support the judgment.”)
(quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991)).
Both parties agree with that bottom-line holding and that
it applies to the almost-identically worded Section 924(c).
Smith Opening Br. 27; Gov’t Br. 16. We agree as well, joining
the decisions of seven other circuits. See United States v.
Jordan, 96 F.4th 584, 589 (3d Cir. 2024); United States v.
Manley, 52 F.4th 143, 147 (4th Cir. 2022); United States v.
States, 72 F.4th 778, 791 n.11 (7th Cir. 2023); Janis v. United
States, 73 F.4th 628, 630–631 (8th Cir. 2023); United States v.
Begay, 33 F.4th 1081, 1092–1093 (9th Cir. 2022); United
States v. Kepler, 74 F.4th 1292, 1303–1304 (10th Cir. 2023);
Alvarado-Linares v. United States, 44 F.4th 1334, 1344 (11th
Cir. 2022). Accordingly, for the CCE-murder statute to satisfy
Section 924(c)’s elements clause, a more culpable mens rea
than mere recklessness is required.
The next step is to determine which mens rea applies to
the CCE-murder statute. That task is a straightforward matter
of statutory construction. See Staples v. United States, 511
U.S. 600, 605 (1994) (“[D]etermining the mental state required
for commission of a federal crime requires ‘construction of the
statute and * * * inference of the intent of Congress.’”)
(quoting United States v. Balint, 258 U.S. 250, 253 (1922));
see also Borden, 593 U.S. at 429–445 (exhaustively
considering ACCA’s text, structure, and context to determine
appropriate mens rea).
21
Because we are construing a criminal law, the starting
point for our analysis is “the background rules of the common
law, in which the requirement of some mens rea for a crime is
firmly embedded.” Staples, 511 U.S. at 605 (formatting
modified); see United States v. Project on Gov’t Oversight, 616
F.3d 544, 549 (D.C. Cir. 2010) (“We must presume that
criminal statutes and regulations contain a mens rea element
unless otherwise clearly intimated in the language or legislative
history.”) (brackets omitted) (quoting United States v.
Sheehan, 512 F.3d 621, 629 (D.C. Cir. 2008)).
In other words, our job is not to construe the CCE murder
statute’s words in a vacuum; it is to decide which mens rea
applies. That will ordinarily be one of the “four states of
mind”—purpose, knowledge, recklessness, or negligence—set
out by the Model Penal Code and subsequently “described in
modern statutes and cases.” Borden, 593 U.S. at 426; see
Counterman v. Colorado, 600 U.S. 66, 78–79 (2023)
(explaining each of these four mental states); MODEL PENAL
CODE § 2.02 (Am. L. Inst. 1985).
For present purposes, there is no disagreement that, when
Congress uses the word “intentional” as a mens rea in a
criminal statute, that equates at least with purpose, and may
also cover both purposeful and knowing actions. See, e.g.,
Voisine, 579 U.S. at 693 (referring to distinct “mental state[s]
of intention, knowledge, or recklessness”); id. at 691–692
(distinguishing acting “knowingly * * * [meaning] ‘aware that
harm is practically certain,’” from acting “intentionally * * *
sometimes called ‘purposefully’ * * * [meaning] hav[ing] that
result as a ‘conscious object’”); Morissette, 342 U.S. at 271
(distinguishing between the “mental element * * * [of]
knowledge or [of] intent”); MODEL PENAL CODE, supra, § 2.02
cmt. 2, 233 (The Code’s “narrow distinction between acting
purposely and knowingly” aims to clarify “ambiguity in legal
22
usage of the term ‘intent’”); id. at 235 n.11 (canvassing recent
criminal enactments or proposals that use “the term
‘intentionally’ where the [Model Penal] Code uses
purposely”).
And federal courts are uniform that an “intentional” mens
rea does not include reckless conduct. See, e.g., Borden, 593
U.S. at 438 (distinguishing crimes that “‘involve the intentional
use’ of force * * * [from] crimes of recklessness”); id. at 446
(Thomas, J., concurring) (distinguishing “a crime that can be
committed through mere recklessness” from those involving
“intentional acts designed to cause harm”); id. at 462
(Kavanaugh, J., dissenting) (likewise distinguishing situations
where “[a] person acts intentionally (or said otherwise
purposefully)” from situations where “a person acts
recklessly”); Voisine, 579 U.S. at 692 (distinguishing between
“[r]eckless assaults” and “knowing or intentional ones”). 5
With that backdrop in mind, the relevant provision of the
CCE murder statute, 21 U.S.C. § 848(e)(1)(A), requires an
intentional mens rea across its inculpatory actions for three
reasons.
5
See also, e.g., United States v. Burke, 888 F.2d 862, 867 (D.C.
Cir. 1989) (distinguishing between “‘intentional’ wrongdoing” and
“‘reckless or criminally negligent’ conduct”); Anderson v. Kingsley,
877 F.3d 539, 545 (4th Cir. 2017) (“Reckless conduct in the criminal
law is thus distinct from intentional conduct[.]”); United States v.
Devereaux, 91 F.4th 1361, 1364 (10th Cir. 2024) (distinguishing
“intentional (purposeful and knowing)” conduct from “reckless”
conduct); see also LAFAVE, supra, § 5.2 (“Intent has traditionally
been defined to include knowledge,” although “[t]he modern view
* * * is that it is better to draw a distinction between intent (or
purpose) on the one hand and knowledge on the other.”)
23
First, the CCE-murder statute is not silent as to mens rea.
The statute uses a variant of the word “intentional” not once
but twice. At the outset, it applies when someone
“intentionally kills” another. 21 U.S.C. § 848(e)(1)(A)
(emphasis added). It also applies when someone “counsels,
commands, procures, or causes” an “intentional killing[.]” Id.
(emphasis added). In addition, the statute includes a third
reference to intentionality when it specifies that “such
killing”—meaning the “intentional killing” procured, induced,
commanded, or caused—actually results. Id. (emphasis
added).
Congress’s use of the word “intentionally” even once
would commonly suffice to establish that intentional action,
rather than reckless action, is required for the listed criminal
actions. See, e.g., Ruan v. United States, 597 U.S. 450, 458
(2022). That is because, when construing a criminal statute’s
mens rea element, “a word such as ‘knowingly’ modifies not
only the words directly following it, but also those other
statutory terms that ‘separate wrongful from innocent acts.’”
Id. (quoting Rehaif v. United States, 588 U.S. 225, 232 (2019));
Rehaif, 588 U.S. at 229 (“When a statute ‘prescribes the kind
of culpability that is sufficient for the commission of an
offense, without distinguishing among the material elements
thereof, such provision shall apply to all the material elements
of the offense, unless a contrary purpose plainly appears.’”)
(quoting MODEL PENAL CODE, supra, § 2.02(4)); Flores-
Figueroa v. United States, 556 U.S. 646, 652 (2009) (“[C]ourts
ordinarily read a phrase in a criminal statute that introduces the
elements of a crime with the word ‘knowingly’ as applying that
word to each element.”); United States v. X-Citement Video,
Inc., 513 U.S. 64, 70 (1994) (similar).
Keep in mind that our statutory-construction task is to
identify the most plausible mens rea. Staples, 511 U.S. at 605.
24
When, as here, Congress has already supplied a particular mens
rea—and did so here twice explicitly and once indirectly—the
logical reading is that the statutorily designated mens rea
extends to each means of committing the same crime. See X-
Citement, 513 U.S. at 70 (interpreting a statute’s use of the
word “knowingly” before the phrase “transports or ships” to
apply to the content of the things being transported or shipped,
even when those were described in a separate conditional
clause); Flores-Figueroa, 556 U.S. at 652–653 (collecting
cases where the Court has interpreted criminal statutes in this
way). And that rule applies regardless of whether the “most
natural grammatical reading” of the statute might suggest
otherwise. X-Citement Video, 513 U.S. at 70; cf. Ruan, 597
U.S. at 458 (“Unsurprisingly, given the meaning of scienter,
the mens rea we have read into [silent] statutes is often that of
knowledge or intent.”).
In other words, when Congress explicitly provides a mens
rea in a criminal statute, the most faithful reading of statutory
text, absent contrary indicia, is to apply that mens rea to all
relevant culpable acts, rather than to divine a lesser mens rea
that lacks any textual basis. It is, after all, Congress’s job to
define what conduct is criminal, and not for courts to expand
that coverage more broadly by adding a lesser mens rea.
Second, the actions that Section 848(e)(1)(A) proscribes
themselves connote intentionality, not recklessness. To
“command” a killing means to direct or order it; to “counsel” a
killing means to urge or advise in favor of it; and to “procure”
a killing means to deliberately bring it about. See WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 518 (1993) (def. 2)
(defining “to counsel” to mean “to recommend esp[ecially] as
the best or most expedient act, course, or policy”); id. at 455
(def. 1) (defining “to command” to mean “to direct
authoritatively” or to “order”); id. at 1154 (def. 1a) (defining
25
“to induce” to mean “to move and lead (as by persuasion or
influence),” to “influence,” or to “persuade”); id. at 1809 (def.
2a) (defining “to procure” to mean “to bring about by particular
care or effort” or “to bring about by scheming and plotting”).
As for “causes,” actions that “bring into existence” an
intentional killing or “make” one happen also fit the mold of
intentional actions. See WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 356 (def. 1) (defining “to cause”
as meaning “to serve as cause or occasion of”; to “bring into
existence”; to “make”). While some other definitions could,
considered in isolation, reach more broadly, they do not come
into play here. Settled statutory construction principles require
that “cause” be read consonantly with the verbs that surround
it, each of which speaks to intentional actions. See United
States v. Williams, 553 U.S. 285, 294 (2008) (“[A] word is
given more precise content by the neighboring words with
which it is associated.”). And read as a whole, the list of verbs
identifies equivalent alternative paths to “intentionally
kill[ing]” someone, and each takes as its object “an intentional
killing.” 21 U.S.C. § 848(e)(1)(A).
So in addition to the statute’s multiple explicit
requirements of “intentional” action, each of Section 924(c)’s
verbs speak in “the language of intent,” even absent “the word
‘intent’” itself, and so “strongly intimate a[n] [intentional]
mens rea requirement.” Project on Gov’t Oversight, 616 F.3d
at 550; see id. (A statute that uses such words “is not truly silent
on the issue” even when it “does not include the word
‘intent[.]’”).
Third, statutory context redoubles the necessity of a
greater-than-reckless mens rea for each of Section
848(e)(1)(A)’s culpable actions. A CCE-murder conviction
carries a mandatory minimum sentence of twenty years and
26
may result in a death sentence or life in prison. 21 U.S.C.
§ 848(e)(1)(A). In Borden, the Supreme Court cautioned
against an interpretation “that would trigger ACCA’s 15 year
minimums” for merely reckless crimes. 593 U.S. at 440.
Borden’s logic similarly militates against interpreting a death-
eligible statute with a twenty-year minimum sentence to cover
reckless conduct—especially given Congress’s repeated
textual requirement of intentional action. Id.
Smith hypothesizes that a person could theoretically
“command an intentional killing” without in fact intending it.
Smith Opening Br. 25. For instance, a mob boss might order a
lieutenant to “take care of Jones”—perhaps intending merely
that the subordinate caution or threaten Jones, or even send him
a care package—and thereby “command” Jones’s intentional
killing by the subordinate without personally intending that
Jones be killed.
While the mob boss’s actions could comfortably qualify
as commanding that Jones be threatened, it is doubtful that the
words without more amount to the mob boss “commanding”
an “intentional killing[.]” 21 U.S.C. § 848(e). Anyhow, the
statutory text already makes clear which mens rea should
apply, and courts should not contort the statute’s every word so
as to hypothesize one or two strained applications as an excuse
for pulling some extra-textual mens rea out of the air.
Against these textual signs that 21 U.S.C. § 848(e)(1)(A)
requires an intentional mens rea, Smith marshals a single case
from the Sixth Circuit. But that case is not on point.
In United States v. Alvarez, 266 F.3d 587 (6th Cir. 2001),
the Sixth Circuit upheld a CCE-murder conviction where the
jury was instructed that “‘intentional killing’ could be read to
include ‘intentionally inflicting serious bodily injury,’
27
‘intentionally engaging in conduct intending the victim be
killed or that lethal force be employed against the victim,’ and
‘intentionally engaging in conduct which the defendant knew
would create a grave risk of death to a person other than one of
the participants in the offense and resulting in death to the
victim,’” id. at 594–595 (brackets omitted).
The language on which Smith relies was drawn from the
jury charge outlining certain since-repealed statutory
“aggravating factors for a death penalty determination,”
Alvarez, 266 F.3d at 595; see 21 U.S.C. § 848(n)(1) (2000), not
a description of the CCE-murder statute’s mens rea
requirement. There was no argument in Alvarez that the CCE-
murder statute itself could be satisfied by mere recklessness,
and the court’s language instead repeatedly indicated that the
statute requires an “intentional killing.” 266 F.3d at 594–595.
Finally, Smith’s invocation of the rule of lenity does not
help. See Smith Opening Br. 32. That rule applies only when
a criminal statute is ambiguous after exhausting traditional
tools of statutory construction. See Lockhart v. United States,
577 U.S. 347, 361 (2016). Here, the statutory text is most
naturally read as requiring the mens rea of intent that Congress
repeatedly wrote into the law. In addition, lenity principles cut
against Smith’s argument, which would criminalize a broader
range of conduct.
***
Because the CCE-murder statute requires the intentional
use of force against another person that results in an intentional
killing and uses intent-connoting verbs to define the culpable
content, the provision qualifies categorically as a crime of
violence under 18 U.S.C. § 924(c). We accordingly deny
Smith’s Section 2255 petition to vacate those convictions.
28
C
Smith separately asks us to reverse the district court’s
denial of resentencing under the First Step Act. We decline
that invitation. The district court correctly concluded that
Smith was eligible for resentencing under the First Step Act on
only two of his convictions, and it then offered sufficient
reasons for its decision to decline resentencing as to those
convictions.
1
The First Step Act permits district courts to “impose a
reduced sentence” for defendants previously sentenced on
certain “covered offenses.” 21 U.S.C. § 841 note (Application
of Fair Sentencing Act). A “‘covered offense’ means a
violation of a [f]ederal criminal statute, the statutory penalties
for which were modified by * * * the Fair Sentencing Act of
2010 * * * [and] that was committed before August 3, 2010.”
Id. In other words, the statute empowers district courts to give
reduced sentences for convictions that predated the 2010 Fair
Sentencing Act but which, if obtained after that Act, would
have carried lower penalties.
As both parties agree, Smith’s convictions for conspiracy
to distribute crack cocaine in violation of 21 U.S.C. §§ 841 and
846 and a related RICO-conspiracy charge in violation of 18
U.S.C. § 1962(d) are eligible for reduction under the First Step
Act. That is because the Fair Sentencing Act changed the
punishments for Section 841 violations. Fair Sentencing Act
§§ 2–3, 124 Stat. at 2372; Smith, 2022 WL 10449599, at *8;
see also Terry v. United States, 593 U.S. 486, 493 (2021);
White, 984 F.3d at 86 (“[T]he Fair Sentencing Act “modified
the statutory penalties for [certain offenses] * * * because it
29
changed the quantity of crack cocaine necessary to trigger the
penalties for those violations.”).
At the time Smith was convicted for distributing at least
50 grams of crack cocaine, that conviction carried penalties of
ten years to life imprisonment. 21 U.S.C. § 841(b)(1)(A)(iii)
(1988). But as modified by the Fair Sentencing Act, at least
280 grams are now required to trigger the same penalties. 21
U.S.C. § 841(b)(1)(A)(iii) (2018). In contrast, Smith’s
conviction for distribution of 50 grams would now be
punishable by five to 40 years. Id. § 841(b)(1)(B)(iii).
Similarly, the statutory maximum penalty for RICO
conspiracy is ordinarily twenty years. 18 U.S.C. § 1963(a).
But that maximum increases to life “if the violation is based on
a racketeering activity for which the maximum penalty
includes life imprisonment.” Id. The first overt act underlying
Smith’s RICO conspiracy charge was the crack cocaine
distribution conspiracy described above. Smith, 2022 WL
10449599, at *8. Accordingly, “[w]ere [Smith] convicted of a
RICO conspiracy involving the same overt acts today, the
maximum sentence he could receive by statute would be 20
years, not life.” Id.
Smith argues that his CCE-murder convictions also
qualify as covered offenses eligible for resentencing under the
First Step Act. Not so.
Whether an offense is “covered” under the First Step Act
“depends only on whether the defendant was convicted of an
offense with a statutory penalty range that the Fair Sentencing
Act altered.” White, 984 F.3d at 86. Before 2010, the CCE-
murder statute authorized prison terms from twenty years to
life, or the death penalty. See 21 U.S.C. § 848(e)(1)(A) (2006).
“After 2010, these statutory penalties remain exactly the
30
same.” Terry, 593 U.S. at 493; see 21 U.S.C. § 848(e)(1)(A)
(2018). The relevant sections of the Fair Sentencing Act
simply do not concern or reference CCE murder. See Fair
Sentencing Act, §§ 2–3, 124 Stat. at 2372.
Indeed, every circuit court to consider the question has
held that CCE murder is not a “covered” offense under the First
Step Act. See United States v. Roane, 51 F.4th 541, 546–551
(4th Cir. 2022) (“[T]he statutory penalties associated with
[defendants’] § 848(e)(1)(A) convictions remain the same both
before and after the Fair Sentencing Act—a 20-year minimum
sentence up to life imprisonment or death for drug-related
murder.”); see also United States v. Fletcher, 997 F.3d 95, 97
(2d Cir. 2021); United States v. Junius, 86 F.4th 1027, 1030–
1031 (3d Cir. 2023); United States v. Snow, 967 F.3d 563, 564–
565 (6th Cir. 2020).
Smith nonetheless argues that CCE murder is covered
because it requires that the murder defendant “engag[ed] in or
work[ed] in furtherance of a continuing criminal enterprise,” or
else “engage[d]” in certain predicate offenses. 21 U.S.C.
§ 848(e)(1)(A). Smith argues that the Fair Sentencing Act did
change the statutory penalties for the relevant predicate in his
case—the “continuing criminal enterprise” charged against a
co-defendant, J.A. 78–79—because that specific continuing
criminal enterprise was itself based in part on the drug
distribution conspiracy charge that all parties agree is a covered
offense under the Fair Sentencing Act. Smith, 2022 WL
10449599, at *8; Smith Opening Br. 41–46.
That argument fails under its own premises. Even if the
predicate continuing criminal enterprise mattered, Smith is
incorrect that the Fair Sentencing Act modified the statutory
penalties associated with engaging in a continuing criminal
enterprise.
31
A person engages in a continuing criminal enterprise by
(1) violating any of the felony drug offenses contained in
Chapter 13 of Title 21, if (2) that violation “is a part of a
continuing series of violations” from which the defendant
“obtains substantial income or resources” and (3) the
defendant’s violations are “undertaken * * * in concert with
five or more other persons” as to whom the defendant plays a
management role. 21 U.S.C. § 848(c). Engaging in such a
“continuing criminal enterprise” is punishable by twenty years
to life. Id. § 848(a). As with CCE murder, the penalty for
engaging in a continuing criminal enterprise was in no way
changed by the Fair Sentencing Act.
Smith is right that one of the felony drug offenses used to
establish the existence of a continuing criminal enterprise in
this case happens to have been the conspiracy to distribute at
least 50 grams of crack cocaine, an offense that was altered by
the Fair Sentencing Act. Fair Sentencing Act § 2, 124 Stat. at
2372. But even as modified by the Fair Sentencing Act,
conspiracy to distribute 50 grams of crack cocaine is still a
predicate felony for CCE murder. See 21 U.S.C.
§ 841(b)(1)(B)(iii); id. §§ 846, 848(e)(1)(A). And a continuing
criminal enterprise charge may be based on any drug violation
that is a felony, regardless of the punishment for that violation.
See id. § 848(c)(1). So the fact that the penalties for one of the
predicates of the continuing criminal enterprise charged in this
case was itself a covered offense does not matter because the
exact offense charged could still serve as a valid CCE predicate
today. The Fair Sentencing Act changed nothing about that.
In any event, Smith was not independently charged with
engaging in a continuing criminal enterprise. To convict Smith
of CCE murder, the jury was required to find only that Smith
“intentionally killed” (or “counseled, commanded, induced,
procured, or caused” the intentional killing of) the victim,
32
intended to do so, and did so “while engaged in or working in
furtherance of a continuing criminal enterprise.” J.A. 221.
While Smith needed to be “engag[ed] in or working in
furtherance of” the enterprise, 21 U.S.C. § 848(e)(1)(A), the
jury was specifically instructed that it could find that such an
enterprise existed even if the “person or persons” operating it
were “not necessarily the defendant[].” J.A. 221; compare 21
U.S.C. § 848(a), (c) (A person may be liable for “a continuing
criminal enterprise” if he “occupies a position of organizer, a
supervisory position, or any other position of management” in
it.), with id. § 848(e)(1)(A) (“Any person engaging in or
working in furtherance of a continuing criminal enterprise” or
who commits other drug offenses and who “intentionally kills
or counsels, commands, induces, procures, or causes the
intentional killing of an individual” may be liable for CCE
murder.) (emphasis added). 6
6
Proving that the murder took place in furtherance of a
continuing criminal enterprise is just one path by which the
Government may prove CCE murder. 21 U.S.C. 848(e)(1)(A). An
equally viable option—not taken in this case—would have dispensed
with any need to show the existence of a “continuing criminal
enterprise” at all, so long as the defendant committed the murder
while “engaging in an offense punishable under section
841(b)(1)(A) * * * [or] section 960(b)(1)” of Title 21. Id. The
penalties for those offenses were, in fact, changed by the Fair
Sentencing Act, such that certain drug crimes that might have validly
served as CCE murder predicates before the Fair Sentencing Act
would no longer do so today. See Fair Sentencing Act § 2, 124 Stat.
at 2372; Snow, 967 F.3d at 564–565. Other courts have held that
CCE murder is still not a “covered offense” even when the charged
predicate drug offense could no longer serve as a valid predicate
today, because the penalties for CCE murder remain unchanged.
Snow, 967 F.3d at 564–565; Roane, 51 F.4th at 546–551. However,
33
Accordingly, nothing about Smith’s CCE-murder charge
or even the predicate continuing criminal enterprise depended
on proving distribution of any particular amount of crack
cocaine. To that same point, in defining the CCE predicate for
Smith’s CCE murder charge, the jury was explicitly instructed
that “the government need not prove that the continuing
criminal enterprise was responsible for the distribution of any
particular or minimum amount of crack as required for” the
independently charged CCE murder offense. J.A. 221
(emphases added).
In short, no statutory penalties were changed for either (1)
Smith’s CCE murder charge, or (2) the predicate continuing
criminal conspiracy charge, and the same conviction could be
obtained today based on the same conduct. For that reason,
even under Smith’s own argument, his murder conviction is not
eligible for First Step Act relief.
2
Smith next argues that, because the district court found
that two of Smith’s convictions were covered offenses, it had
authority to impose a new sentence for all convictions because
they were part of a single “sentencing package.” Cf. United
States v. Townsend, 178 F.3d 558, 567 (D.C. Cir. 1999)
(“[W]hen a defendant is found guilty on a multicount
indictment, there is a strong likelihood that the district court
will craft a disposition in which the sentences on the various
counts form part of an overall plan, and that if some counts are
we need not decide that question here because the relevant predicate
for Smith was the existence of a continuing criminal conspiracy
which could still be charged today based on the same underlying
drug felonies. See J.A. 95 (indictment); J.A. 221 (jury instructions).
34
vacated, the judge should be free to review the efficacy of what
remains in light of the original plan[.]”).
Courts have reached different conclusions about whether
the First Step Act vests district courts with this authority.
Compare United States v. Hudson, 967 F.3d 605, 610–611 (7th
Cir. 2020) (holding that the First Step Act confers “discretion
to reduce a single, aggregate sentence that includes covered
and non-covered offenses”), and United States v. Richardson,
96 F.4th 659, 666–667 (4th Cir. 2024) (same), with United
States v. Gladney, 44 F.4th 1253, 1262 (10th Cir. 2022) (“[T]he
First Step Act prohibits a district court from reducing the
sentence on a non-covered offense[.]”).
We need not decide whether the First Step Act authorizes
resentencing for covered and non-covered convictions alike
when a single sentencing package is imposed. That is because
Smith’s covered drug distribution conspiracy and RICO
conspiracy convictions were not part of a “single package”
with his remaining convictions. Smith was sentenced to life
without parole on his D.C. convictions under a wholly different
legal scheme from that governing his federal convictions and
sentences. Smith, 2022 WL 10449599, at *4; Presentence
Investigation Report (“PSR”) ¶¶ 273–287. Smith’s crime-of-
violence convictions, meanwhile, were statutorily required to
run consecutively to his sentences on all other convictions. See
18 U.S.C. § 924(c)(1)(D). At the time Smith’s sentence was
imposed, the then-mandatory Sentencing Guidelines required
the district court to impose a life sentence for his CCE-murder
convictions. PSR ¶¶ 206–288. Given all of that, Smith’s
sentences for drug distribution conspiracy and RICO
conspiracy were not packaged with his other sentences, and the
district court correctly concluded that it lacked the statutory
authority to reduce Smith’s sentence on any convictions except
for his two covered offenses.
35
3
Finally, Smith argues that the district court erred in
declining to exercise its discretion to resentence him on his
covered offenses. Because the district court addressed Smith’s
arguments and logically explained its decision, its ruling falls
within its wide range of discretion.
To start, the First Step Act is explicit that “[n]othing in [it]
* * * shall be construed to require a court to reduce any
sentence pursuant to [the Act].” 21 U.S.C. § 841 note
(Application of Fair Sentencing Act). That provision “confers
particular discretion” on district courts, in addition to the
already wide discretion ordinarily given sentencing judges.
Concepcion, 597 U.S. at 501. Though “district courts bear the
standard obligation to explain their decisions and demonstrate
that they considered the parties’ arguments[,] * * * the First
Step Act leaves much to the judge’s own professional
judgment.” Id. at 502 (formatting modified). Accordingly,
absent legal error, our review is not “overly searching.” Id at
485, 501.
Here, the district court addressed Smith’s arguments for
resentencing at length in a well-reasoned written opinion.
Smith, 2022 WL 10449599, at *13–15. The court explained
that it would not resentence Smith on his covered convictions
for four reasons: “(1) [the] seriousness of [Smith’s] offense
conduct; (2) [Smith’s] terrible behavioral record while
incarcerated; (3) [the] irrelevance of the sentences on [the First-
Step-Act-eligible] Counts 1 and 3 to the sentence [Smith] is
actually serving [given his several concurrent life sentences];
and (4) [the] strong practice against the issuance of advisory
opinions * * * .” Id. at *15; see id. at *14 (discussing Smith’s
record in prison). This detailed statement of reasons easily
satisfies our deferential review.
36
Smith argues that the district court abused its discretion
because the life sentence imposed for his drug distribution
conspiracy charge exceeds the maximum sentence that could
be imposed for the same offense today under current law.
Smith Opening Br. 37–39. In support of this argument, he cites
a 2021 Fourth Circuit decision holding that “district courts
abuse their discretion in letting stand a sentence of
imprisonment that exceeds the statutory maximum established
by the Fair Sentencing Act.” United States v. Collington, 995
F.3d 347, 356 (4th Cir. 2021).
The Fourth Circuit has since disavowed that holding as
“untenable” given the narrow role for appellate review
prescribed by the Supreme Court in Concepcion v. United
States, 597 U.S. 481 (2022). See United States v. Reed, 58
F.4th 816, 822 (4th Cir. 2023) (Under Concepcion’s narrow
standard for appellate intervention, “Collington’s holding that
a district court abuses its discretion by not reducing a sentence
to the statutory maximum established by the Fair Sentencing
Act is untenable.”). That is unsurprising because Collington’s
per se rule requiring the reduction of all sentences for statutory
penalties modified by the Fair Sentencing Act is at war with
that Act’s explicit statement that it should not “be construed to
require a court to reduce any sentence pursuant to [the Act].”
See 21 U.S.C. § 841 note (Application of the Fair Sentencing
Act). Accordingly, the fact that Smith’s sentence for drug
distribution conspiracy exceeds what could be imposed under
current law does not by itself mean that the district court
reversibly erred in declining to reduce it.
Smith also takes issue with the district court’s statements
about the “irrelevance of the sentences on [Smith’s covered
convictions] * * * to the sentence [Smith] is actually serving,”
and the “strong practice against the issuance of advisory
opinions.” Smith, 2022 WL 10449599, at *15. We agree with
37
Smith that nothing precluded the district court from reducing
Smith’s sentence on his two covered offenses even absent any
immediate likelihood that the change would result in an earlier
release from custody. But it was not off limits for the district
court to consider, in exercising its discretion, that a sentence
reduction on Smith’s covered offenses would do him little
good given his other convictions and sentences. In any event,
the district court also based its decision at least in part on the
seriousness of Smith’s offense conduct and his behavioral
record while incarcerated—findings Smith does not challenge
on appeal.
Smith argues that the district court’s emphasis on the
“advisory” nature of any opinion was especially egregious
because the First Step Act bars courts from entertaining
resentencing motions “if a previous motion * * * to reduce the
sentence was, after the date of enactment of th[e] Act, denied
after a complete review of the motion on the merits.” 21 U.S.C.
§ 841 note (Application of the Fair Sentencing Act). Smith
worries that, even if future legal developments make a reduced
sentence on his covered offenses relevant to his custodial term,
he will be barred from seeking relief on his covered offenses.
Yet it may help, not hurt, Smith that the district court
denied relief at least in part because it believed addressing such
relief would involve an advisory opinion. Smith, 2022 WL
10449599, at *15. Should Smith’s other convictions and
sentences change such that First Step Act relief might actually
help him, Smith can argue that his first motion did not receive
“complete review * * * on the merits” and that the bar on
successive motions should therefore not apply. 21 U.S.C. §
841 note (Application of Fair Sentencing Act). We need not
resolve here the merits of such an argument because, even if
the advisory-opinion statement were a misstep, the district
court acted well within its discretion in denying resentencing
38
as to Smith’s covered offenses for all the other reasons it
offered.
V
Because Smith’s CCE-murder convictions involved the
intentional use of force against others, they qualify as crimes
of violence under Section 924(c)’s elements clause. We
accordingly affirm denial of Smith’s Section 2255 petition.
We also affirm the district court’s denial of resentencing under
the First Step Act because Smith was not eligible for
resentencing as to most counts, and the district court
reasonably explained its denial of resentencing as to the
eligible counts.
With the agreement of all parties, we remand to the district
court for the limited purpose of entering a revised judgment
and conviction order that reflects this court’s prior vacatur of
Smith’s felony-murder and attempted-armed-robbery
convictions, which were vacated on direct appeal. See Sumler,
136 F.3d at 189 n.1 (D.C. Cir. 1998); Gov’t Br. 3 n.1.
So ordered.