McKenzy Alfred v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MCKENZY ALII ALFRED, No. 19-72903

Petitioner,

Agency No.

v. A215-565-401

MERRICK B. GARLAND, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted En Banc September 8, 2022

Pasadena, California

Filed March 30, 2023

Before: Mary H. Murguia, Chief Judge, and Sidney R.

Thomas, M. Margaret McKeown, Jay S. Bybee, Consuelo

M. Callahan, Ryan D. Nelson, Eric D. Miller, Bridget S.

Bade, Daniel P. Collins, Kenneth K. Lee and Lawrence

VanDyke, Circuit Judges.

Opinion by Judge Bybee;

Partial Concurrence and Partial Dissent by Judge Collins;

Concurrence in the Judgment by Judge Callahan;

Dissent by Judge McKeown;

Dissent by Judge VanDyke

2 ALFRED V. GARLAND

SUMMARY *

Immigration

Denying McKenzy Alii Alfred’s petition for review of a

Board of Immigration Appeals’ decision that he was

removable for having been convicted of an aggravated

felony theft offense under 8 U.S.C. § 1101(a)(43)(G), the en

banc court held that second-degree robbery under Wash.

Rev. Code § 9A.56.190 is a categorical match with generic

theft and is therefore a theft offense under § 1101(a)(43)(G).

Alfred was convicted under Wash. Rev. Code

§ 9A.56.190 and served a fifteen-month prison sentence.

The BIA concluded that he was removable for having

committed an aggravated felony under 8 U.S.C. §

1101(a)(43)(G), which describes “a theft offense (including

receipt of stolen property) or burglary offense for which the

term of imprisonment is at least one year.” A panel of this

court granted Alfred’s petition for review based on United

States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), in

which this court held that: (1) because aiding and abetting

liability is implicit in every criminal charge, a state’s aiding

and abetting statute must be folded into the analysis under

the categorical approach, and (2) Washington’s aiding and

abetting statute is broader than its generic equivalent. Based

on Valdivia-Flores, the Alfred panel found that

Washington’s robbery statute is a mismatch to its generic

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ALFRED V. GARLAND 3

equivalent such that the Washington statute was not an

aggravated felony, and therefore, Alfred was not removable.

The en banc court explained that in United States v.

Alvarado-Pineda, 774 F.3d 1198 (9th Cir. 2014), this court

concluded that a conviction for Washington second-degree

robbery, where accompanied by a sentence of at least one

year, qualifies as a theft aggravated felony. Neither Alfred

nor the government questioned that decision; rather, the

parties disagreed over whether and how Washington’s

accomplice liability statute affected Alfred’s robbery

conviction.

A plurality of the en banc court concluded that it was

necessary to consider Washington accomplice liability in

conducting the categorical analysis of Washington robbery.

The plurality explained that, in Valdivia-Flores, the court

relied on Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007),

in which the Supreme Court concluded that generic theft

encompasses aiding and abetting. Noting that Duenas-

Alvarez left open the question of whether accomplice

liability should be considered when—as is the case with

Washington law—a separate statute integrates accomplice

liability, the plurality concluded this is a distinction without

a difference. The plurality explained that nothing confines

the categorial analysis to a single statute of conviction, and

the Supreme Court often looks beyond the statute of

conviction to see how state courts apply a statute. The

plurality further explained that under Washington law, it is

impossible to determine whether a defendant was convicted

as a principal or accomplice without looking at the

underlying facts, but the categorical approach forbids doing

so. Because Alfred’s conviction did not establish that he

acted as a principal, the plurality concluded that it must

consider the possibility he acted as an accomplice.

4 ALFRED V. GARLAND

Therefore, the plurality concluded it must consider

accomplice liability. The plurality noted its dissenting

colleagues agreed on this point, while its concurring

colleagues disagreed.

In Subsection B of Part IV, a majority of the en banc

court held that generic accomplice liability requires a

showing that the putative accomplice intentionally aided or

abetted another in the commission of the crime. However,

because many of the jurisdictions the en banc court surveyed

had interpreted this intent requirement as encompassing both

purposeful and knowing conduct, the en banc court also

concluded that advance knowledge of the crime is sufficient

to support a conviction for generic accomplice liability. In

so concluding, the en banc court considered four categories

of accomplice liability (including those requiring a mens rea

of intent and those requiring a mens rea of knowledge) and

detailed which jurisdictions fell into which category. The en

banc court also found helpful Rosemond v. United States,

572 U.S. 65 (2014), in which the Supreme Court, throughout

its opinion, equated intent with “advance knowledge.”

Further, the en banc court noted that the blurred line between

intent and knowledge is apparent through state law as

well. However, the en banc court noted that its holding does

not mean that all statutes that fall under the generic definition

are to be interpreted the same way, as doing so would ignore

the jurisdictional distinctions described.

In Subsection C of Part IV, the majority joined the

Eleventh Circuit in concluding that Washington and generic

accomplice liability are a categorical match. The en banc

court explained that both Washington and federal generic

accomplice liability require the same standard of proof: the

accomplice must have had advance knowledge of the crime

he facilitated. In Washington, by statute, an accomplice acts

ALFRED V. GARLAND 5

“[w]ith knowledge that [the conduct] will promote or

facilitate the commission of the crime,” Wash. Rev. Code

§ 9A.08.020(3)(a), and Washington courts have held that the

state must prove a defendant acted with knowledge that he

or she was promoting or facilitating the crime eventually

charged. And the Supreme Court has interpreted common

law accomplice liability as requiring evidence that a

defendant “actively participat[ed] in a criminal venture with

full knowledge of the circumstances constituting the charged

offense.” Rosemond, 572 U.S. at 77. The en banc court saw

no significant daylight between these two standards.

In Part V, the majority of the en banc court overruled

Valdivia-Flores and, to the extent it remained good law, also

overruled United States v. Franklin, 904 F.3d 793 (9th Cir.

2018), abrogated on other grounds by Shular v. United

States, 140 S. Ct. 779 (2020), for the same reasons.

Having held that second-degree robbery under Wash.

Rev. Code § 9A.56.190 is a categorical match with generic

theft, the en banc court concluded that Alfred had been

convicted of an aggravated felony and denied his petition for

review.

Concurring in the judgment in part and dissenting in part,

Judge Collins, joined by Judges Callahan and Bade as to

Parts I and II and joined by Judge VanDyke as to Part III,

agreed that a conviction for Washington offense counts as an

aggravated felony and that Alfred was removable. However,

Judge Collins disagreed with most of the reasoning in the

lead opinion.

In Part I, Judge Collins wrote that this court held, in

Alvarado-Pineda, that a Washington conviction for second-

degree burglary, where accompanied by the required

sentence, qualifies as an aggravated felony theft offense.

6 ALFRED V. GARLAND

Judge Collins observed that the lead opinion agreed with

Alvarado-Pineda on this point, and that the parties had not

questioned Alvarado-Pineda. In Judge Collins’ view, that

should be the end of the inquiry. In Part II, Judge Collins

observed that his analysis (applying Alvarado-Pineda

without considering accomplice liability) was contrary to

Valdivia-Flores, but stated that he would overrule Valdivia-

Flores to the extent that it requires a comparison of state and

federal aiding and abetting theories. Judge Collins

concluded that the requirements of aiding and abetting

liability do not qualify as “elements” of the underlying

offense for purposes of the categorical analysis and that the

categorical approach’s “elements-only inquiry” requires the

court to disregard such non-elements. In Part III, Judge

Collins noted that, in concluding that Washington aiding and

abetting law matches its federal analog, the majority made

several statements about the scope of federal aiding and

abetting law under 8 U.S.C. § 2 that are contrary to well-

settled authority.

Concurring in the judgment, Judge Callahan, joined by

Judge Bade, wrote that because the court need not consider

aiding and abetting liability, she concurred in Sections I and

II of Judge Collins’ concurrence in part and dissent in

part. However, because by the vote of the majority of the en

banc panel aiding and abetting liability remained before the

court, Judge Callahan also concurred in subsections B and C

of Section IV and Section V of Judge Bybee’s opinion and

agreed that Washington’s aiding and abetting law is not

overbroad.

Dissenting, Judge McKeown, joined by Chief Judge

Murguia and Judges S.R. Thomas and VanDyke, agreed

with the majority that the court must compare the state

statute to the federal generic definition of the offense. Judge

ALFRED V. GARLAND 7

McKeown also agreed that because Washington’s statutory

scheme incorporates accomplice liability into all crimes, the

court must consider accomplice liability in the categorical

analysis of Washington second-degree robbery.

However, Judge McKeown parted ways with the

majority in two significant respects. First, she differed on

the generic definition of accomplice liability, explaining that

a close read of the relevant sources reveals that generic

accomplice liability requires a mental state of purpose,

which is different than knowledge. Second, Judge

McKeown disagreed on whether Washington’s second-

degree robbery statute is a categorical match with the generic

theft offense, explaining that Washington accomplice

liability requires a mental state of knowledge, which is lower

than purpose. Judge McKeown would grant Alfred’s

petition for review.

Dissenting, Judge VanDyke wrote that while he would

have liked to join Judge Bybee’s decision, he agreed with

Judge Collins and his dissenting colleagues that the analysis

therein incorrectly elides the distinction between the mental

states of knowledge and purpose to find a categorical match

in this case. Judge VanDyke further wrote that while the

approach taken by Judge Collins had a lot to commend it as

an original matter, he also could not join it entirely because

he did not believe Judge Collins’ approach was ultimately

reconcilable with what the Supreme Court actually did in

Duenas-Alvarez.

8 ALFRED V. GARLAND

COUNSEL

Aaron Korthuis (argued), Matt Adams, and Leila Kang,

Northwest Immigrant Rights Project, Seattle, Washington;

Alison Hollinz and Christopher P. Stanislowski, Northwest

Immigrant Rights Project, Tacoma, Seattle; for Petitioner.

Andrew C. MacLachlan (argued), Bryan S. Beier, and Zoe

J. Heller, Senior Litigation Counsel; Jaclyn E. Shea, Trial

Attorney; John W. Blakeley, Assistant Director; Joseph H.

Hunt, Assistant Attorney General; Brian M. Boynton,

Principal Deputy Assistant Attorney General; Office of

Immigration Litigation, Civil Division, United States

Department of Justice, Washington, D.C.; for Respondent.

Kara Hartzler and Vincent Brunkow, Assistant Federal

Public Defenders, Federal Defenders of San Diego Inc., San

Diego, California, for Amicus Curiae Ninth Circuit Federal

Public and Community Defenders.

ALFRED V. GARLAND 9

OPINION

BYBEE, Circuit Judge, announced the judgment of the

court, in which CALLAHAN, R. NELSON, MILLER,

BADE, COLLINS, and LEE, Circuit Judges, concur; and

delivered an opinion, in which R. NELSON, MILLER, and

LEE, Circuit Judges, concur, and in which CALLAHAN and

BADE, Circuit Judges, concur as to Subsections B and C of

Part IV and Part V:

Petitioner McKenzy Alii Alfred is a noncitizen who was

convicted of robbery in Washington. After Alfred finished

a fifteen-month prison sentence, the government initiated

removal proceedings against him. The Board of

Immigration Appeals (“BIA”) found Alfred removable for

having committed an aggravated felony.

Alfred petitioned for review, and the panel granted relief

based on our prior holding in United States v. Valdivia-

Flores, 876 F.3d 1201 (9th Cir. 2017). In that case we held

that Washington’s accomplice liability statute was “implicit

. . . in every criminal charge” and categorically “broader than

its federal analogue.” Id. at 1207, 1208. The government

petitioned for rehearing en banc, arguing that Valdivia-

Flores and the panel decision were incorrect and in direct

conflict with a decision of the Eleventh Circuit, Bourtzakis

v. United States Attorney General, 940 F.3d 616 (11th Cir.

2019). We granted the petition for rehearing en banc; we

now overrule Valdivia-Flores and deny Alfred’s petition for

review.

10 ALFRED V. GARLAND

I. BACKGROUND

A. Factual History

Alfred is a citizen of the Republic of Palau. He lawfully

entered the United States in 2011 as a noncitizen pursuant to

the Compact of Free Association. On February 20, 2018,

Alfred went on a one-man crime spree in which he attempted

to rob a credit union, successfully robbed a coffee stand, and

attempted to steal a car. Police apprehended him shortly

thereafter.

After his indictment, Alfred pleaded guilty to one count

of second-degree robbery and two counts of attempted

second-degree robbery. He was given a fifteen-month

sentence for each count, with the sentences to be served

concurrently.

B. Procedural History

Shortly after Alfred was released from prison, the

Department of Homeland Security (“DHS”) initiated

removal proceedings against him. The Notice to Appear

charged Alfred as removable for having been convicted of

an aggravated felony, a crime of moral turpitude, and an

aggravated felony crime of violence.

Before the immigration judge (“IJ”), Alfred argued that

the statute of conviction for robbery in Washington, Wash.

Rev. Code § 9A.56.190, was overbroad under the categorical

approach. The IJ rejected this argument, relying on United

States v. Alvarado-Pineda, 774 F.3d 1198, 1203 (9th Cir.

2014), in which we held that “a conviction for Washington

second-degree robbery, where accompanied by a sentence of

at least one year, qualifies as an ‘aggravated felony’ under 8

U.S.C. § 1101(a)(43)(G).” As a result, the IJ ordered

Alfred’s removal, for commission of both an aggravated

ALFRED V. GARLAND 11

felony and a crime involving moral turpitude. The Board of

Immigration Appeals affirmed the IJ’s finding that Alfred

had committed an aggravated felony but declined to address

whether Alfred was removable on other grounds.

Alfred petitioned for review. The panel found that our

precedent, namely Valdivia-Flores, compelled it to grant

Alfred’s petition. See Alfred v. Garland, 13 F.4th 980, 987

(9th Cir. 2021) (“[I]n this case, our analysis begins and ends

with Valdivia-Flores.”). Sitting by designation, Judge

Morrison C. England, who authored the majority opinion,

concurred specially. 1 Judge Rawlinson concurred in the

result. 2 In Valdivia-Flores, we made two key holdings: (1)

because aiding and abetting liability is implicit in every

criminal charge, a state’s aiding and abetting statute must be

folded into our analysis under the categorical approach, and

(2) Washington’s aiding and abetting statute is broader than

its generic equivalent. Valdivia-Flores, 876 F.3d at 1207–

09. Based on these holdings, the Alfred panel found that

Washington’s robbery statute is a categorical mismatch to its

1

Judge England, joined by Judge Bybee, criticized the categorical

approach for requiring us to parse statutes to answer irrelevant questions.

In this case, “the record contains not even a hint that [Alfred] might have

pled guilty as an accomplice. In fact, quite the opposite, he very clearly

acted alone. . . . We are engaging in an accomplice liability analysis that

in any other context would be utterly irrelevant.” Alfred, 13 F.4th at 988

(England, J., specially concurring).

2

Judge Rawlinson noted that her concurrence was compelled by

Valdivia-Flores, in which she dissented. Id. at 989 (Rawlinson, J.,

concurring in the result); Valdivia-Flores, 876 F.3d at 1211–14

(Rawlinson, J., dissenting). She too criticized the categorical approach.

Alfred, 13 F.4th at 990 (“I guess when it comes to application of the

Supreme Court’s contrived categorical approach, in the words of my

dearly departed Mama Louise: common sense ain’t all that common.”).

12 ALFRED V. GARLAND

generic equivalent. 13 F.4th at 986–87. Accordingly, the

panel found that second-degree robbery was not an

aggravated felony for removal purposes and that, as a result,

Alfred was not removable.

The government petitioned for rehearing en banc, asking

us to overrule Valdivia-Flores. We granted the government’s

petition. Alfred v. Garland, 35 F.4th 1218 (9th Cir. 2022).

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 8 U.S.C. § 1252, and we

review the BIA’s determinations of law de novo. Vitug v.

Holder, 723 F.3d 1056, 1062 (9th Cir. 2013). “[W]hether an

offense is an aggravated felony for removal purposes is a

question of law.” Chavez-Solis v. Lynch, 803 F.3d 1004,

1006 (9th Cir. 2015) (quoting Chuen Piu Kwong v. Holder,

671 F.3d 872, 876 (9th Cir. 2011)).

III. THE CATEGORICAL APPROACH

Under the Immigration and Nationality Act (“INA”), the

government may order the removal of noncitizens who have

committed crimes classified as “aggravated felonies.” 8

U.S.C. § 1227(a)(2)(A)(iii); see also Moncrieffe v. Holder,

569 U.S. 184, 187 (2013). The INA defines aggravated

felonies with a list of offenses, including “a theft offense

(including receipt of stolen property) or burglary offense for

which the term of imprisonment is at least one year.” 8

U.S.C. § 1101(a)(43)(G).

The INA specifies “conviction, not conduct, as the

trigger for immigration consequences.” Mellouli v. Lynch,

575 U.S. 798, 806 (2015). As a result, the Supreme Court

has instructed us to “employ a categorical approach by

looking to the statute . . . of conviction, rather than to the

specific facts underlying the crime.” Esquivel-Quintana v.

ALFRED V. GARLAND 13

Sessions, 581 U.S. 385, 389 (2017) (quoting Kawashima v.

Holder, 565 U.S. 478, 483 (2012)). The Court has applied

this categorical approach in “several statutory contexts,”

including the Armed Career Criminal Act (ACCA). Borden

v. United States, 141 S. Ct. 1817, 1822 (2021) (plurality

opinion).

The categorical approach asks us to determine “whether

‘the state statute defining the crime of conviction’

categorically fits within the ‘generic’ federal definition of a

corresponding aggravated felony.” Moncrieffe, 569 U.S. at

190 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183,

185–87 (2007)). To do so, we “compare the elements of the

crime of conviction with the elements of the ‘generic’

version of the listed offense—i.e., the offense as commonly

understood.” Mathis v. United States, 579 U.S. 500, 503

(2016). “[I]f the statute sweeps more broadly than the

generic crime, a conviction under that law cannot count as

an [aggravated felony], even if the defendant actually

committed the offense in its generic form.” Descamps v.

United States, 570 U.S. 254, 261 (2013).

In the case before us, the BIA found that Alfred had been

convicted of a generic theft offense under 8 U.S.C. §

1101(a)(43)(G). Therefore, under the categorical approach

we must determine whether the Washington robbery statute

under which Alfred was convicted criminalizes conduct that

falls outside the generic definition of theft.

We answered this question in Alvarado-Pineda. There,

we held that “[a] comparison of the elements of the

[Washington] statute to the elements of generic theft makes

clear that the full range of conduct criminalized by

Washington second-degree robbery falls within the meaning

of generic theft.” Alvarado-Pineda, 774 F.3d at 1203

14 ALFRED V. GARLAND

(internal quotation marks omitted). We “conclude[d] that a

conviction for Washington second-degree robbery, where

accompanied by a sentence of at least one year, qualifies as

an ‘aggravated felony’ under 8 U.S.C. § 1101(a)(43)(G).”

Id. Neither Alfred nor the government has questioned the

correctness of that decision. Rather, following our decision

in Valdivia-Flores, the parties disagree over whether and

how Washington’s accomplice liability statute affects

Alfred’s robbery conviction. We thus turn to those

questions.

IV. ACCOMPLICE LIABILITY

A. Whether Considering Accomplice Liability Is Necessary

1. Analysis

In Valdivia-Flores, we applied the categorical approach

to Washington’s aiding and abetting statute before looking

at the statute of conviction. 876 F.3d at 1207. The

government argues that doing so was incorrect. In taking up

the question of accomplice liability in Valdivia-Flores, we

relied on Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007).

In Duenas-Alvarez, the Supreme Court reviewed our

application of the categorical approach to Cal. Veh. Code §

10851, which criminalizes vehicle theft. 549 U.S. at 187.

That statute punishes not only “[a]ny person who drives or

takes a vehicle not his or her own,” but also “any person who

is a party or an accessory to or an accomplice in the driving

or unauthorized taking or stealing.” Cal. Veh. Code §

10851(a) (emphasis added). We had held that the statute’s

reference to accomplice liability made it overbroad,

reasoning that aiding and abetting theft does not necessarily

require a defendant to commit theft himself. Penuliar v.

Ashcroft, 395 F.3d 1037, 1044–45 (9th Cir. 2005), rev’d by

Duenas-Alvarez, 549 U.S. 183.

ALFRED V. GARLAND 15

The Supreme Court disagreed. First, it observed that “all

States and the Federal Government” had “expressly

abrogated the distinction” between those “who actually

committed the crime in question” and aiders and abettors.

Duenas-Alvarez, 549 U.S. at 189–90 (internal quotation

marks omitted). Thus, the Court concluded that generic theft

encompasses the aiding and abetting of theft. Id. Next, the

Court addressed whether California’s accomplice liability

scheme was “special,” such that it would allow California to

penalize “crime that falls outside the generic definition of

‘theft.’” Id. at 190–94. The Court found no such distinction.

Id. at 194.

Duenas-Alvarez left open the question of whether

accomplice liability should be considered when a separate

statute integrates accomplice liability into the statute of

conviction. Such is the case here. Unlike the vehicle code

at issue in Duenas-Alvarez, Washington’s robbery statute

does not expressly refer to aiding and abetting. See Wash.

Rev. Code § 9A.56.190. Instead, a separate statute, Wash.

Rev. Code § 9A.08.020(3), incorporates accomplice liability

into all Washington crimes.

We hold that this is a distinction without a difference.

The categorical approach is “[r]ooted in Congress’

specification of conviction . . . as the trigger for immigration

consequences.” Mellouli, 575 U.S. at 806. Though the

statute of conviction is inextricably tied to the defendant’s

conviction, nothing confines the categorical analysis to a

single statute. On the contrary, the Supreme Court has

looked to statutes other than the statute of conviction to

understand what a conviction may entail. See, e.g., Mathis,

579 U.S. at 507; Taylor v. United States, 495 U.S. 575, 591–

92 (1990). Moreover, in defining the elements of a

conviction, the Court often looks beyond the statute of

16 ALFRED V. GARLAND

conviction to see how state courts have applied the statute.

See Mathis, 579 U.S. at 507; Johnson v. United States, 559

U.S. 133, 138 (2010); Duenas-Alvarez, 549 U.S. at 190–94.

Although the statute of conviction is the center of our

analysis, we cannot blind ourselves to sources that contribute

to its meaning. We discern no relevant difference between

(1) a statute that defines a crime and expressly punishes

aiding and abetting and (2) a statute that defines a crime and

is subject to another statute that expressly punishes aiding

and abetting all crimes, including the particular crime in

question.

A closer look at Washington law underscores why

consideration of accomplice liability is important here.

Washington, like the United States and all other states, has

eliminated the distinction between principals and

accomplices. By statute, in Washington, “[a] person is guilty

of a crime if it is committed by the conduct of another person

for which he or she is legally accountable.” Wash. Rev.

Code § 9A.08.020(1). Washington defines legal

accountability broadly, encompassing all who are complicit

in the commission of the crime. See Wash. Rev. Code

§ 9A.08.020(2)–(3); see also State v. Silva-Baltazar, 886

P.2d 138, 143 (Wash. 1994) (“The complicity rule in

Washington is that any person who participates in the

commission of the crime is guilty of the crime and is charged

as a principal.”). Accordingly, Washington courts have

declared that “[t]here is no separate crime of being an

accomplice; [instead] accomplice liability is principal

liability.” State v. Handley, 796 P.2d 1266, 1276 (Wash.

1990) (quoting State v. Toomey, 690 P.2d 1175, 1181 (Wash.

Ct. App. 1984)).

Washington’s consolidation of accomplice and principal

liability applies in all stages of prosecution. An information

ALFRED V. GARLAND 17

need not “expressly charge aiding or abetting or refer to

other persons” for a defendant to be found guilty as an

accomplice. State v. Rodriguez, 898 P.2d 871, 873 (Wash.

Ct. App. 1995); see also State v. Lynch, 970 P.2d 769, 772

(Wash. Ct. App. 1999) (“[A]n information that charges an

accused as a principal adequately apprises him of his

potential liability as an accomplice.”). Jurors may find a

defendant guilty of a crime without agreeing whether the

defendant acted as an accomplice or a principal. State v.

Hoffman, 804 P.2d 577, 605 (Wash. 1991) (“[I]t is not

necessary that jurors be unanimous as to the manner of an

accomplice’s and principal’s participation as long as all

agree that they did participate in the crime.”). And, “a

defendant may be found guilty as a principal or as an

accessory even though . . . the principal actor has not been

tried or has been tried and acquitted.” State v. Wilder, 608

P.2d 270, 274 (Wash. Ct. App. 1980) (internal quotation

marks and citations omitted); see also State v. Carothers,

525 P.2d 731, 734 (Wash. 1974) (“[A] verdict may be

sustained upon evidence that the defendant participated in

the commission of the crime charged, as an aider or abetter,

even though he was not expressly accused of aiding and

abetting and even though he was the only person charged in

the information.”), abrogated on other grounds by State v.

Harris, 685 P.2d 584, 587 (Wash. 1984).

The upshot is that under Washington law it is impossible

to determine whether an individual defendant has been

convicted as a principal or an accomplice—or even whether

a defendant acted alone, in concert, or with the aid of

another—without looking to the facts underlying the

conviction. Yet the categorical approach forbids us from

18 ALFRED V. GARLAND

doing so. See Descamps, 570 U.S. at 261.3 Because a

conviction under Wash. Rev. Code § 9A.56.190 does not

necessarily establish that Alfred acted as a principal, we

must consider the possibility he acted as an accomplice. We

therefore conclude that we must consider Washington

accomplice liability in our categorical analysis of

Washington robbery. See Bourtzakis v. U.S. Att’y Gen., 940

F.3d 616, 621–22 (11th Cir. 2019) (arriving at the same

conclusion).

2. Response to the Concurring Opinion

Our dissenting colleagues agree with us on this point.

Dissenting Op. at 87–88. Our concurring colleagues, 4

however, disagree with this conclusion. Although the

concurrence believes that Washington aiding and abetting

law is too different from federal generic aiding and abetting

to be a categorical match, see Concurring Op. at 70–85, it

nevertheless concludes that our categorical analysis should

not address accomplice liability at all, id. at 69. According

to the concurrence, this is because “the issue of aiding and

abetting liability is not subsumed into one of the constituent

elements of the underlying predicate offense,” but rather is

“a theory of liability” that does not affect what a jury must

find to convict a defendant. Id. at 59.

3

The government does not contend that a modified categorical approach

should apply here. See Descamps, 570 U.S. at 261 (explaining how,

under the “modified categorical approach,” courts “may look beyond the

statutory elements to the charging paper and jury instructions used in a

case” (internal quotation marks omitted)).

4

We refer to the opinion of Judge Collins as a concurrence for

simplicity’s sake. We recognize that it disagrees with us on everything

other than the judgment.

ALFRED V. GARLAND 19

We agree with many of the building blocks of the

concurrence’s analysis. We agree, for example, that the

categorical approach compares the elements of the crime in

question with the elements of the generic crime. Concurring

Op. at 56. As the concurrence explains, and we agree, an

element may be comprised of alternative means or methods

for proving a particular element, but “that overarching

element subsumes those alternative means.” Id. We further

agree “that aiding and abetting is merely a means of finding

principal liability, that it does not itself constitute an element

of the underlying offense, and that jurors need not

unanimously agree as to whether a defendant is guilty as a

principal or as an aider and abettor.” Id. at 57.

Where we disagree with the concurrence is its conclusion

that “aiding and abetting liability is not subsumed into one

of the constituent elements of the underlying predicate

offense” and that, therefore, we must “‘disregard[]’ aiding

and abetting liability.” Id. at 58 (emphasis added) (quoting

Mathis, 579 U.S. at 517). That conclusion does not follow

from the concurrence’s premises because it mischaracterizes

what abrogation of the distinction between principals and

accomplices means.

In general, under modern accomplice liability theory,

“aiding and abetting is a different means of committing a

single crime,” it is “not a separate offense itself,” and “the

government ha[s] no obligation to elect between charging a

substantive offense and charging liability on an aiding and

abetting theory.” United States v. Garcia, 400 F.3d 816, 820

(9th Cir. 2005). Accordingly, “aiding and abetting is

embedded in every federal indictment for a substantive

crime.” Id. Although it is still useful for us to refer to a

“principal” or an “accomplice,” in the end they are equally

culpable and may be convicted of the same offense. We

20 ALFRED V. GARLAND

nevertheless continue to traverse the metaphysical line

between the two as a way of distinguishing degrees of

culpability, which properly plays a role in sentencing. See

United States v. Smith, 891 F.2d 703, 714 (9th Cir. 1989)

(“The evidence was sufficient to make him an aider and

abettor . . . . The mildness of his sentence corresponds to the

minor role he had.”); see also United States v. Dominguez-

Caicedo, 40 F.4th 938, 959–62 (9th Cir. 2022); United States

v. Cordova Barajas, 360 F.3d 1037, 1042–43 (9th Cir.

2004); U.S.S.G. §§ 2X2.1 cmt. n.1 (“aiding and abetting the

commission of an offense has the same offense level as the

underlying offense. An adjustment for a mitigating role (§

3B.2) may be applicable”), 3B1.2 & cmts. nn.3–5

(describing participants who are “less culpable,” “among the

least culpable,” and “substantially less culpable.”).

The concurrence’s misstep results from

mischaracterizing Mathis. In Mathis, the Supreme Court

took up the question of how to apply the categorical

approach “when a statute happens to list various means by

which a defendant can satisfy an element.” 579 U.S. at 508.

The ACCA imposes a mandatory minimum sentence for

defendants who have three prior convictions for a “violent

felony.” 18 U.S.C. § 924(c). As relevant to Mathis, the

ACCA defines “violent felony” as any felony that is

“burglary, arson, or extortion.” Id. § 924(c)(2)(B)(ii). The

statute at issue was Iowa’s burglary statute, which, through

another statute, allowed conviction for burglary for unlawful

entry into “any building, structure, [or] land, water, or air

vehicle.” Mathis, 579 U.S. at 507 (quoting Iowa Code §

702.12). The parties and the Court agreed that no other state

permitted a burglary conviction for entering a “vehicle.” Id.

at 512. Thus, “some but not all” the locations listed in the

Iowa burglary statute “satisf[ied] the generic definition of

ALFRED V. GARLAND 21

burglary.” These different locations were not alternative

elements—creating separate crimes—but rather “alternative

ways of satisfying a single locational element.” Id. at 507,

512. But because an Iowa jury “need not agree whether the

burgled location was a building, other structure, or vehicle,”

a burglary conviction in Iowa did not necessarily mean that

a defendant satisfied the locational element for burglary in a

way that fit the generic definition. Id. at 517–18. As a result,

the Court found Iowa’s burglary statute to be categorically

overbroad and that held Mathis’s burglary conviction could

not be used to enhance his sentence under the ACCA. Id. at

515–17, 520.

The concurrence reads Mathis to mean that, because an

alternative means of satisfying an element is not itself an

element, a state’s aiding and abetting scheme has no bearing

on our categorical analysis. See Concurring Op. at 55–60.

We think, to the contrary, because accomplice liability is one

means of satisfying an element necessary to support a

conviction, we must consider it. If, as Alfred claims,

accomplice liability requires a lesser mens rea than principal

liability, then the choice between those alternative means is

significant. A simple example will prove our point. Suppose

Washington law provided that “The state may prove a theft

offense through evidence that the defendant acted purposely

or negligently.” See Model Penal Code § 2.02(2)(a), (d)

(describing those mentes reae). In the same way the Iowa

burglary statute at issue in Mathis provided alternate means

for satisfying the locational element, this statute provides

alternative means for satisfying the mens rea element—

purpose and negligence. Under our hypothetical

Washington statute, a defendant may be convicted of a theft

offense if he acted with either mens rea, and a Washington

jury would not have to decide unanimously whether the

22 ALFRED V. GARLAND

defendant acted purposefully or negligently. In such

circumstances, we would presume that “the state conviction

‘rested upon the least of the acts’ criminalized by the

statute.” Esquivel-Quintana, 581 U.S. at 189 (cleaned up)

(quoting Johnson, 559 U.S. at 137)). But permitting

conviction on the basis of negligence would not match the

elements of generic theft. See infra pp. 21–33; cf. United

States v. Benally, 843 F.3d 350, 354 (9th Cir. 2006) (holding

that a conviction based on a mens rea of gross negligence is

not a “crime of violence” under 18 U.S.C. § 924(c)); cf. also

Borden, 141 S. Ct. at 1825–28 (concluding that reckless

conduct does not qualify as a “violent felony” under the

ACCA); United States v. Garcia-Jimenez, 807 F.3d 1079,

1085 (9th Cir. 2015) (concluding that “a mens rea of extreme

indifferent recklessness is not sufficient to meet the federal

generic definition of aggravated assault”). In our

hypothetical, negligence (as an alternative mens rea) is

subsumed in the intent element, and no one could reasonably

argue that “we must ‘disregard[]’ [the mens rea] in

determining whether there is a categorical match between a

state offense and a federal generic offense.” Concurring Op.

at 58 (quoting Mathis, 579 U.S. at 517).

The concurrence claims that our hypothetical “is not

relevant” because, in its view, aiding and abetting is different

from a crime that lists two possible mentes reae. Concurring

Op. at 62. According to the concurrence, this is because—

unlike an offense that lists multiple means of commission

within the statute— “[w]hen aiding and abetting is invoked

. . . the jury must still find that, as to either or both of the co-

participants, each of the elements of that offense have been

met.” Id. at 58 (emphasis added). This statement is

technically correct, but it only serves to undercut the

concurrence’s position.

ALFRED V. GARLAND 23

We agree with the concurrence that, to convict a

defendant as an accomplice, “the Government . . . ‘must

prove that someone committed,’” Concurring Op. at 58

(emphasis added) (quoting United States v. Mann, 811 F.2d

495, 497 (9th Cir. 1987)), “all the acts constituting the

elements of the substantive crime charged,” Mann, 811 F.2d

at 497. However, the concurrence also appears to believe

that it does not matter whether a conviction necessarily

establishes that the defendant in question committed a

generic offense so long as the conviction establishes that

someone, somewhere did so. See Concurring Op. at 60–61.

Under the concurrence’s theory, a defendant could receive

an enhanced sentence because someone else committed a

generic offense.

The concurrence’s position makes no sense. A

defendant—even an accomplice—is responsible for his own

acts, not the acts of others. See Mann, 811 F.2d at 497 (“It

is not a prerequisite to a conviction for aiding and abetting .

. . that the principal be tried and convicted, or even that the

principal be identified. In fact, an aider and abettor’s

conviction may be upheld even though the principal is

acquitted of the underlying offense.” (citations omitted)).

That is why the categorical approach asks “whether a state

offense necessarily involves the defendant’s” commission of

acts that categorically match a federal standard. Borden v.

United States, 141 S. Ct. 1817, 1822 (2021) (plurality op.)

(emphasis added). A conviction showing that someone else

satisfied the elements of a generic offense does not

necessarily mean that the defendant satisfied those same

elements. By ignoring this basic principle, the concurrence

would tie immigration and sentencing consequences to facts

that a conviction does not necessarily establish, thereby

violating basic principles of the categorical approach. See

24 ALFRED V. GARLAND

Moncrieffe, 569 U.S. at 205 n.11 (the categorical approach

focuses on “what facts are necessarily established by a

conviction for the state offense”); see also Mathis, 579 U.S.

at 505.

In sum, we remain perplexed that the concurrence

concludes that Washington accomplice liability sweeps

more broadly than generic law, see Concurring Op. at 70–

85, but simultaneously insists that accomplice liability is

“not relevant” to our categorical inquiry, id. at 62. To be

sure, we disagree with the concurrence’s conclusion that

Washington accomplice liability is not a categorical match

for generic aiding and abetting. But the concurrence would

have us ignore any overbreadth that accompanies a state’s

accomplice liability scheme, no matter how egregious.

***

We think the question raised in Valdivia-Flores—

whether a defendant can be convicted in Washington of

aiding and abetting based on a lesser mens rea than that

required for principal liability—is not irrelevant and must be

answered. We now turn to that question.

B. Defining Washington and Generic Accomplice Liability

1. Washington accomplice liability

Washington law defines a person as an accomplice if:

(a) With knowledge that it will promote or facilitate the

commission of the crime, he or she:

(i) Solicits, commands, encourages, or requests such

other person to commit it; or

(ii) Aids or agrees to aid such other person in

planning or committing it; or

ALFRED V. GARLAND 25

(b) His or her conduct is expressly declared by law to

establish his or her complicity.

Wash. Rev. Code § 9A.08.020(3).

Washington courts have held that the knowledge

component in the accomplice liability statute refers to

knowledge of the conduct that forms the basis of the charged

offense. State v. Roberts, 14 P.3d 713, 735 (Wash. 2000).

Thus, to convict a defendant as an accomplice under

Washington law, the government must show that the

defendant “acted with knowledge that his or her conduct

would promote or facilitate the crime” charged, rather than

knowledge that the conduct would “aid[] in the commission

of any crime.” State v. Cronin, 14 P.3d 752, 757 (Wash.

2000). This means that accomplice liability “[does] not

extend beyond the crimes of which the accomplice actually

has knowledge.” Id. at 758 (quoting Roberts, 15 P.3d at

735). At the same time, “[s]pecific knowledge of the

elements of the coparticipant’s crime need not be proved to

convict one as an accomplice.” State v. Drewees, 432 P.3d

795, 801 (Wash. 2019) (quoting State v. Rice, 683 P.2d 199

(Wash. 1984)). Instead, the government need only prove

the defendant had “general knowledge of his coparticipant’s

substantive crime.” Roberts, 14 P.3d at 736 (quoting Rice,

683 P.2d at 203). In practical terms, this means that the

government must establish the accomplice knew of the

general crime (i.e., “assault”), but it need not establish

knowledge of the specific degree of the crime (i.e., “first-

degree assault”). Sarausad v. State, 39 P.3d 308, 314–15

(Wash. Ct. App. 2001) (discussing Cronin, 14 P.3d at 758–

59).

26 ALFRED V. GARLAND

2. Generic accomplice liability

To determine the federal generic definition of a crime,

we “ordinarily survey[] a number of sources—including

state statutes, the Model Penal Code, federal law, and

criminal treatises.” United States v. Garcia-Jimenez, 807

F.3d 1079, 1084 (9th Cir. 2015). “Most often, ‘[t]he generic

definition of an offense roughly corresponds to the

definitions of the offense in a majority of the States’ criminal

codes,’” id. (quoting United States v. Garcia-Santana, 774

F.3d 528, 534 (9th Cir. 2014), abrogated on other grounds

by Esquivel-Quintana, 581 U.S. 385), but how courts have

applied these statutes is also relevant, see Duenas-Alvarez,

549 U.S. at 190–91. The generic offense is simply “the

offense as commonly understood.” Mathis, 579 U.S. at 503.

Commentators have noted that “[c]onsiderable

confusion exists as to what the accomplice’s mental state

must be in order to hold him accountable for an offense

committed by another.” 2 Wayne R. LaFave, Substantive

Criminal Law § 13.2(b), at 466 (3d ed. 2018) [hereinafter

LaFave]. The confusion has resulted in “considerable

variation in the language used by courts and legislatures”

regarding the mens rea necessary for accomplice liability.

Id.; see also Jens David Ohlin, Wharton’s Criminal Law

§ 10.9 (16th ed. 2022) [hereinafter Wharton’s Criminal

Law] (“How the general complicity mental standard applies

to specific crimes has generated a rich but sometimes

confusing jurisprudence . . . .”); Alexander F. Sarch,

Condoning the Crime: The Elusive Mens Rea for

Complicity, 47 Loy. U. Chi. L.J. 131, 133 (2015) (observing

“a long history of disagreement about how, precisely, this

mens rea should be understood” and cataloguing various

approaches including “intention or purpose” and

“knowledge”); Baruch Weiss, What Were They Thinking:

ALFRED V. GARLAND 27

The Mental States of the Aider and Abettor and the Causer

Under Federal Law, 70 Fordham L. Rev. 1341, 1351 (2002)

(“[T]he current status of the law on the aider and abettor’s

mental state is far from clear. In fact, it is best described

today as in a state of chaos.”).

We may divide state accomplice liability law into four

general categories. See John F. Decker, The Mental State

Requirement for Accomplice Liability in American Criminal

Law, 60 S. C. L. Rev. 237 (2008) (surveying federal and state

law). These categories are based in both state statutory

language as well as state common law.

Purpose. In the first category are jurisdictions that

require a mens rea of “purpose” or similar term like

“willfulness.” Federal statutory definitions, the Model Penal

Code, and some states fall into this category. See 18 U.S.C.

§ 2(b) (“Whoever willfully causes an act to be done which if

directly performed by him or another would be an offense

against the United States, is punishable as a principal.”

(emphasis added)); Model Penal Code § 2.06(3)(a) (“A

person is an accomplice of another person . . . if[,] with the

purpose of promoting or facilitating the commission of the

offense, he . . . aids . . . such other person in planning or

committing it.” (emphasis added)); N.J. Stat. Ann. § 2C:2-

6(c) (using Model Penal Code language). A number of other

states use the broader term “intent.” See, e.g., Or. Rev. Stat.

§ 161.155 (“A person is criminally liable for the conduct of

another person constituting a crime if . . . [w]ith the intent to

promote or facilitate the crime the person . . . [a]ids or abets

. . . such other person in planning or committing the crime.”

(emphasis added)); Tex. Penal Code § 7.02(a) (“A person is

criminally responsible for an offense committed by the

conduct of another if . . . acting with intent to promote or

assist the commission of the offense, he solicits, encourages,

28 ALFRED V. GARLAND

directs, aids, or attempts to aid the other person to commit

the offense[.]” (emphasis added)). Roughly half the states

use one of these terms. LaFave, supra, § 13.2(b), at 466–67

nn.70 & 72 (listing states).

Knowledge. In the second category are states like

Washington that require a mens rea of knowledge. See

Wash. Rev. Code § 9A.08.020(3); Ind. Code Ann. § 35-41-

2-4 (“A person who knowingly or intentionally aids, induces,

or causes another person to commit an offense commits that

offense . . . .” (emphasis added)); W. Va. Code Ann. § 61-2-

14e (“If any person in any way knowingly aid or abet any

other person in the commission of any offense . . . such

person so aiding and abetting shall be guilty as a principal

. . . .” (emphasis added)); Wyo. Stat. Ann. § 6-1-201 (“A

person who knowingly aids or abets in the commission of a

felony . . . may be indicted, informed against, tried and

convicted as if he were a principal . . . .” (emphasis added)).

Few states use statutory language that requires only

knowledge. See Decker, supra, at 250–51 (placing four

states in this category).

Derivative Mens Rea. Third, roughly fifteen states

require the accomplice to act with the same mens rea as that

required to prove the principal offense. Decker, supra, at

275–310 (surveying states); see, e.g., N.Y. Penal Law §

20.00 (“When one person engages in conduct which

constitutes an offense, another person is criminally liable for

such conduct when, acting with the mental culpability

required for the commission thereof, he . . . intentionally aids

such person to engage in such conduct.” (emphasis added));

Utah Code Ann. § 76-2-202 (“Every person, acting with the

mental state required for the commission of an offense who

. . . intentionally aids another person to engage in conduct

which constitutes an offense shall be criminally liable as a

ALFRED V. GARLAND 29

party for such conduct.” (emphasis added)). This has been

called the “derivative approach.” Sarch, supra, at 133. If a

principal may be convicted for a crime based on criminally

negligent conduct, so too may an accomplice. Weiss, supra,

at 1376. At the same time, evidence of the accomplice’s

purposeful intent is necessary to support a conviction for a

crime that requires the principal to act purposefully. Id.

Natural and Probable Consequences. The fourth

category comprises states that have expanded accomplice

liability through use of the natural and probable

consequences doctrine, derived from tort law. See People v.

Prettyman, 926 P.2d 1013, 1037–38 (Cal. 1996) (Brown, J.,

concurring in the judgment) (summarizing history). This

doctrine “holds a person accountable not just for the crimes

the person intended to aid and abet but also for any offense

that is a reasonably foreseeable consequence of the criminal

scheme.” Decker, supra, at 249; see also Ariz. Rev. Stat. §

13-303(A)(3) (“The person is an accomplice of such other

person in the commission of an offense including any

offense that is a natural and probable or reasonably

foreseeable consequence of the offense for which the person

was an accomplice.”). A specific mens rea is still necessary

for the initial offense, but not for the offenses that

foreseeably follow. See State v. Linscott, 520 A.2d 1067,

1070 (Me. 1987) (“So long as the accomplice intended to

promote the primary crime, and the commission of the

secondary crime was a foreseeable consequence of the

accomplice’s participation in the primary crime, no further

evidence of the accomplice’s subjective state of mind as to

the secondary crime is required.”). As a result, this category

overlaps with the other three; states in this category require

a purposeful, knowing, or derivative mens rea for the initial

crime, but make the accomplice liable for foreseeable crimes

30 ALFRED V. GARLAND

committed by the principal. See, e.g., Minn. Stat. Ann. §

609.05(1)–(2) (purposeful); Iowa Code § 703.2 (knowing);

Ariz. Rev. Stat. § 13-303(A)(2)–(3) (derivative). Over a

dozen states use some variation of this rule. See LaFave,

supra, § 13.3(b), at 494–95 nn.28–29; Decker, supra, at

312–52.

Although these categories embrace different language, it

is difficult to tell whether the categories actually are

inconsistent with each other or simply represent different

approaches to defining a single concept of accomplice

liability. See LaFave, supra, § 13.2(b), at 467 (suggesting

that the variations in language “may represent different ways

of stating the same mental state requirement”). From this, it

is equally difficult to discern a clear generic standard.

However, we can say that a majority of jurisdictions use

statutory language that requires a showing of purpose or

something similar to convict a defendant as an accomplice.

This majority includes all the states in the first category, and,

at least for specific intent crimes, the states in the third

category. States in the fourth category are included

inasmuch as they incorporate an intentional or a derivative

mens rea requirement for the initial offense.

A majority of state statutes require some kind of

purposeful conduct to establish accomplice liability for at

least some crimes, but jurisdictions have defined that intent

differently. See Wharton’s Criminal Law, supra, at § 10:9

(“The intent requirement for accomplice liability is

sometimes ambiguous in the sense that intent can mean

‘purposely’ and at other times ‘knowingly.’”). Thus, to

define generic accomplice liability, we must look at how

courts have applied statutory intent requirements. In the

context of this case, our task is to determine the relationship

between jurisdictions that require proof of “purpose,”

ALFRED V. GARLAND 31

“willfulness,” or “intent,” and those that, like Washington,

require proof of “knowledge.” We find that, in this context,

these terms are largely synonymous.

The question has some history in the Supreme Court. In

United States v. Bailey, 444 U.S. 394 (1980), the Court took

up a general discussion of mens rea. The Court began with

the declaration that “[f]ew areas of criminal law pose more

difficulty than the proper definition of the mens rea required

for any particular crime.” Id. at 403. The Court observed

that the Model Penal Code had sought to replace “the

ambiguous and elastic term ‘intent’ . . . with a hierarchy of

culpable states of mind.” Id. at 404. “[I]n descending order

of culpability,” they are “purpose, knowledge, recklessness,

and negligence.” Id. (footnote omitted). The Court

described the first two, “purpose” and “knowledge,” as “the

most significant, and most esoteric,” and said that “[i]n the

case of most crimes, ‘the limited distinction between

knowledge and purpose has not been considered

important.’” Id. (quoting United States v. United States

Gypsum Co., 438 U.S. 422, 445 (1978)). But, the Court

acknowledged, “[i]n certain narrow classes of crimes,”

including inchoate crimes, “culpability has been thought to

merit special attention.” Id. at 405; see also Borden, 141 S.

Ct. at 1822–23 & n.3 (listing “accessory liability (aiding and

abetting)” as among the crimes, including inchoate crimes,

requiring “special attention”; expressing no view on “those

offenses, nor the relationship more generally between

purpose and knowledge” (internal quotation marks and

citations omitted)). The Court offered this distinction:

A person who causes a particular result is said

to act purposefully if he consciously desires

that result, whatever the likelihood of that

32 ALFRED V. GARLAND

result happening from his conduct, while he

is said to act knowingly if he is aware that the

result is practically certain to follow from his

conduct, whatever his desire may be as to that

result.

Bailey, 444 U.S. at 404 (internal quotation marks and

citations omitted) (emphasis added). Then the Court

commented: “In a general sense, ‘purpose’ corresponds

loosely with the common-law concept of specific intent,

while ‘knowledge’ corresponds loosely with the concept of

general intent.” Id. at 405.

If Bailey’s general observation were the last word, we

would be compelled to agree that Washington’s requirement

of “knowledge” is a lesser mens rea than “intent” or

“purpose.” See Dissenting Op. at 88–91. But if the

“ambigu[ity]” and “elastic[ity]” that inheres in “the limited

distinction between knowledge and purpose” has not

acquired clarity in the forty years since the Court identified

the conundrum in Bailey, 444 U.S. at 404 (internal quotation

marks omitted), we at least have some additional clarity with

respect to accomplice liability.

We find the Court’s general discussion of accomplice

liability in Rosemond v. United States, 572 U.S. 65 (2014),

helpful. Rosemond involved the federal aiding and abetting

statute, 18 U.S.C. § 2, which provides that a person may be

“punishable as a principal” if he “willfully causes an act to

be done which if directly performed by him or another would

be an offense against the United States.” Id. § 2(b). The

Court observed that § 2 is derived from common-law

standards that punish a person for aiding or abetting if he

took “an affirmative act in furtherance of that offense . . .

with the intent of facilitating the offense’s commission.”

ALFRED V. GARLAND 33

Rosemond, 572 U.S. at 71. Putting that intent in practical

terms, the Court stated that the “intent requirement [is]

satisfied when a person actively participates in a criminal

venture with full knowledge of the circumstances

constituting the charged offense.” Id. at 77; see Central

Bank of Denver, N.A. v. First Interstate Bank of Denver,

N.A., 511 U.S. 164, 181 (1994) (“[T]hose who provide

knowing aid to persons committing federal crimes, with the

intent to facilitate the crime, are themselves committing a

crime.”); U.S. Gypsum Co., 438 U.S. at 445 (recognizing

that, regardless of whether a defendant acted purposefully or

knowingly, it may be said that she intended the result of her

actions); Pereira v. United States, 347 U.S. 1, 12 (1954)

(holding that “knowledge” of the scheme satisfied the intent

requirement for accomplice liability). Throughout its

opinion, the Court equated intent with “advance

knowledge,” meaning “knowledge at a time the accomplice

can do something with it—most notably, opt to walk away.”

Rosemond, 572 U.S. at 78 (footnote omitted). Accordingly,

“[w]hat matters for purposes of gauging intent . . . is that the

defendant has chosen, with full knowledge, to participate in

the illegal scheme—not that, if all had been left to him, he

would have planned the identical crime.” Id. at 79. In

dissent, Justice Alito observed:

[S]ome of our cases suggest that an aider and

abettor must act purposefully or with intent. .

. . [Other] cases . . . appear to hold that the

requisite mens rea is simply knowledge. The

Court refers interchangeably to both of these

tests and thus leaves our case law in the same,

somewhat conflicted state that previously

existed. But because the difference between

34 ALFRED V. GARLAND

acting purposefully . . . and acting knowingly

is slight, this is not a matter of great concern.

Id. at 84–85 (Alito, J., dissenting).

The blurred line between intent and knowledge is

apparent throughout state law as well. Many states with

accomplice liability statutes that require a showing of intent

nevertheless allow a conviction based on circumstantial

evidence of the putative accomplice’s knowledge of the

crime. See generally LaFave, supra § 13.2(b), at 468 (noting

authority “to the effect that one may become an accomplice

by giving encouragement or assistance with knowledge that

it will promote or facilitate a crime”). For example, Missouri

defines an accomplice as one who “aids or agrees to aid”

another “with the purpose of promoting the commission of

an offense.” Mo. Rev. Stat. § 562.041. Nevertheless, a

conviction may be supported by “[a]ny evidence, either

direct or circumstantial, that shows affirmative

participation,” including the accomplice’s conduct and

knowledge of the offense. State v. Barker, 442 S.W.3d 165,

169 (Mo. App. W.D. 2014) (internal quotation marks

omitted); see also State v. Williams, 409 S.W.3d 460, 468

(Mo. App. W.D. 2013) (“Circumstances that may support

the inference of an accomplice’s affirmative participation

include . . . knowledge.” (internal quotation marks omitted)).

Likewise, in Michigan, accomplice liability attaches if the

defendant “intended the commission of the crime or had

knowledge that the principal intended [the crime’s]

commission at the time that [the defendant] gave aid and

encouragement.” People v. Robinson, 715 N.W.2d 44, 48

(Mich. 2006) (internal quotation marks omitted and

emphasis added); see also Mich. Comp. Laws § 767.39

(attaching criminal liability to “[e]very person concerned in

ALFRED V. GARLAND 35

the commission of an offense,” without providing a mens

rea). And Wisconsin, which requires that an accomplice act

“intentionally,” Wis. Stat. Ann. § 939.05(2)(b), defines that

intent in terms of knowledge. See Wis. JI-Criminal, No. 405

(“A person intentionally aids or abets the commission of a

crime when, acting with knowledge or belief that another

person is committing or intends to commit a crime, he

knowingly . . . renders aid to the person who commits the

crime.”); see also State v. Hibbard, No. 2020AP1157-CR,

2022 WL 4363364, at *3 (Wis. Ct. App. Sept. 21, 2022)

(approving the instruction). These states are not outliers;

many others have mingled knowledge and intent in the

accomplice liability context. 5

We hold that generic accomplice liability requires a

showing that the putative accomplice intentionally aided or

abetted another in the commission of the crime. However,

because many jurisdictions have interpreted this intent

requirement as encompassing both purposeful and knowing

5

See, e.g., People v. Peters, 586 N.E. 2d 180, 190 (Ill. Ct. App. 1991)

(“Intent may be gleaned from knowledge.”); Specht v. State, 838 N.E.2d

1081, 1087 (Ind. Ct. App. 2005) (“Because [the defendant] was

prosecuted on an accomplice liability theory, the State was required to

prove that [the defendant] knowingly or intentionally aided, induced, or

caused [the principal] to commit the offenses.”); State v. Gonzalez, 12

P.3d 382, 384 (Idaho Ct. App. 2000) (“The definition of aiding and

abetting may encompass the activity of one who intentionally assists or

encourages or knowingly participates by any such means in bringing

about the commission of a crime.” (emphasis added)); State v. Smith, 901

N.W.2d 657, 663 (Minn. Ct. App. 2017) (explaining that providing aid

with knowledge of the principal’s criminal intent is sufficient to satisfy

knowledge and intent requirements for accomplice liability).

36 ALFRED V. GARLAND

conduct, 6 we also conclude that advance knowledge of the

crime is sufficient to support a conviction for generic

accomplice liability.

This holding does not mean that all statutes that fall

under the generic definition of accomplice liability are to be

interpreted in the same way. Doing so would ignore the

jurisdictional distinctions that we have so carefully

described. See supra pp. 27–30. Instead, we observe that

aiding and abetting has been defined in so many different

ways that its generic form must be broad enough to

encompass jurisdictions that require purposeful conduct, as

well as those that require accomplices to act with knowledge

that their conduct will promote or facilitate commission of

the crime. See Wash. Rev. Code § 9A.08.020(3).

Our broad interpretation of a generic accomplice liability

does not erase the distinctions between states’ approaches to

accomplice liability. Duenas-Alvarez illustrates this point.

There, the Court held that California’s natural and probable

consequences doctrine adequately reflected generic law so

as not to be overbroad. See Duenas-Alvarez, 549 U.S. at

193–94. But this holding did not impose the natural and

probable consequences doctrine on the states that did not

already use it. Nor did it render every accomplice liability

statute that did not use a natural and probable consequences

doctrine overbroad. Rather, Duenas-Alvarez envisions a

generic definition of accomplice liability that encompasses

jurisdictions that use a natural and probable consequences

6

The dissent quibbles with our characterization of the law in some of the

states we have surveyed. Dissenting Op. at 91–92. But the dissent does

not dispute the only point that matters: these states permit conviction as

an accomplice for knowing conduct.

ALFRED V. GARLAND 37

doctrine, as well as those that do not. See id. at 190–91, 193–

94.

C. Comparing Washington and Generic Accomplice

Liability

Having concluded that the intent element of generic

accomplice liability may be satisfied by showing advance

knowledge of the crime, it remains for us to determine

whether Washington’s mens rea requirement diverges

significantly from this standard. There are at least two ways

to compare Washington law to the generic standard. First,

we can simply compare the text of Washington’s aiding and

abetting standard to the generic standard to see if “greater

breadth is evident from its text.” Lopez-Aguilar v. Barr, 984

F.3d 1143, 1147 (9th Cir. 2020) (quoting United States v.

Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc),

abrogated on other grounds by United States v. Stitt, 139 S.

Ct. 399 (2018)). Second, we can review Washington’s case

law to see whether there is a “a realistic probability, not a

theoretical possibility, that the State would apply its statute

to conduct that falls outside the generic definition of a

crime.” Duenas-Alvarez, 549 U.S. at 193; see also United

States v. Taylor, 142 S. Ct. 2015, 2024–25 (2022)

(interpreting the “realistic probability” requirement

narrowly). In this case, we will consider both because we do

not think either approach, considered alone, fully captures

Washington’s state of the law. See Alvarado-Pineda, 774

F.3d at 1202 (looking to Washington statutes and cases).

We have been aided in our inquiry by the Eleventh

Circuit’s analysis of this same question in Bourtzakis v.

United States Attorney General, 940 F.3d 616 (11th Cir.

2019). In that case, the Eleventh Circuit had to determine

whether a conviction of drug trafficking under Wash. Rev.

38 ALFRED V. GARLAND

Code § 69.50.401(a) constitutes an aggravated felony for

purposes of the INA. Id. at 618. After determining that

Washington’s accomplice liability scheme required it to take

up the question of generic accomplice liability, the Eleventh

Circuit looked to whether Washington aiding and abetting

was broader than federal law. Although the Eleventh Circuit

acknowledged a “difference in language,” it nevertheless

found that “the mens-rea requirements for accomplice

liability under the Washington statute and the federal Act do

not diverge.” Id. at 622. 7

Reviewing Supreme Court precedent, including

Rosemond, the Eleventh Circuit determined that “the

requirement that an accomplice to a federal crime ‘intend[]

to facilitate that offense’s commission is satisfied by proof

that the accomplice actively participated in the crime and

knew the nature of the crime he was facilitating.’” Id. at 623

(quoting Rosemond, 572 U.S. at 76–77 (majority op.)).

Turning to Washington precedent, the Eleventh Circuit

discussed Washington’s rule that, “‘to be an accomplice, an

individual must have acted with knowledge that he or she

was promoting or facilitating the crime for which that

individual was eventually charged’—not just ‘any crime.’”

Id. (quoting Cronin, 14 P.3d at 757–58) (cleaned up).

Comparing the two standards, the Eleventh Circuit

concluded that “the mens-rea requirements for accomplice

liability under Washington and federal law mirror one

another” because, under both, “a person is liable as an

7

Bourtzakis compared the Washington statute to federal statutory law

rather than its federal generic equivalent. See 940 F.3d at 622–25.

However, because 18 U.S.C. § 2(a) adequately reflects federal generic

accomplice liability law, this distinction is immaterial.

ALFRED V. GARLAND 39

accomplice if he actively participates in a crime and knows

the nature of the crime he is facilitating.” Id. at 623.

We agree with the Eleventh Circuit’s reasoning in

Bourtzakis. Both Washington and federal generic

accomplice liability law require prosecutors to meet the

same standard of proof: they must show the accomplice had

advance knowledge of the crime he facilitated. In

Washington, the statute provides that an accomplice acts

“[w]ith knowledge that [the conduct] will promote or

facilitate the commission of the crime.” Wash. Rev. Code §

9A.08.020(3)(a). Washington courts have reaffirmed the

statutory requirement, holding that the state must prove a

defendant “acted with knowledge that he or she was

promoting or facilitating the crime for which that individual

was eventually charged.” Cronin, 14 P.3d at 758. And the

Supreme Court has interpreted common law accomplice

liability as requiring evidence that a defendant “actively

participat[ed] in a criminal venture with full knowledge of

the circumstances constituting the charged offense.”

Rosemond, 572 U.S. at 77. We see no significant daylight

between these two standards.

Citing Rosemond, Alfred posits that the standards are

distinct because generic federal law requires the accomplice

have “full awareness,” id. at 76–77, whereas Washington

law requires only “general knowledge,” Roberts, 14 P.3d at

736. The dissent advances a similar argument, contrasting

Rosemond’s requirement that the accomplice be aware of the

“entire crime” with Washington law providing that the state

need not prove an accomplice was aware of “every element”

of the crime. Dissenting Op. at 92–93 (first quoting

Rosemond, 572 U.S. at 76, then quoting Roberts, 14 P.3d at

736). To answer these arguments, we must first explain the

facts of Rosemond in greater detail.

40 ALFRED V. GARLAND

Rosemond tasked the Supreme Court with determining

“what the Government must show when it accuses a

defendant of aiding or abetting” a violation of 18 U.S.C. §

924(c). 572 U.S. at 67. Section 924(c) prohibits “us[ing] or

carr[ying] a firearm during and in relation to any crime of

violence or drug trafficking crime.” It is an unusual statute

because it penalizes the use of a firearm during the

commission of another crime. Section 924(c) defines a

“combination crime” that “punishes the temporal and

relational conjunction of two separate acts”—use of a

firearm and commission of a violent or drug trafficking

offense—“on the ground that together they pose an extreme

risk of harm.” Rosemond, 572 U.S. at 75. Rosemond was

convicted of violating § 924(c), but he could also have been

charged with aiding and abetting a marijuana sale even if a

gun had not been used. The Court held that, to be convicted

under § 924(c) as an accomplice, Rosemond must have

“advance knowledge” of the firearm, and not just the

marijuana deal, such that he may “make the relevant legal

(and indeed moral) choice.” Id. at 78.

Alfred and the dissent contrast the Court’s holding in

Rosemond with several Washington cases, the most

persuasive of which is State v. Davis, 682 P.2d 883 (Wash.

1984). There, the Washington Supreme Court held that, to

convict an individual of first-degree armed robbery with a

deadly weapon, the prosecution was “not required to prove

that the accomplice had knowledge that the principal was

armed.” Id. at 884; see also State v. McChristian, 241 P.3d

468, 472 (Wash. Ct. App. 2010) (holding that, to be

convicted of first-degree assault with a deadly weapon, an

accomplice need not have knowledge that the principal

would use a deadly weapon). Alfred argues that this runs

contrary to Rosemond, which requires such prior knowledge

ALFRED V. GARLAND 41

for a § 924(c) conviction. Alfred’s argument fails for three

independent reasons.

First, neither Davis nor any other Washington case he

cites involved a combination crime like § 924(c). Section

924(c) is a “freestanding offense” that requires proof of two

distinct acts. Rosemond, 572 U.S. at 75. In contrast, first-

degree armed robbery is an enhanced version of a base

offense—simple robbery. See Wash. Rev. Code

§§ 9A.56.190, 9A.56.200. We do not know what

Washington courts would do if presented with a combination

crime like § 924(c). However, Washington precedent

indicates Washington courts would likely require the same

double-barreled knowledge standard that Rosemond applied

to § 924(c). Washington law provides that an accomplice

must act with “the purpose to promote or facilitate the

particular conduct that forms the basis for the charge.”

Sarausad, 39 P.3d at 314 (internal quotation marks and

emphasis omitted). A combination crime “contain[s] two

distinct conduct elements.” United States v. Rodriguez-

Moreno, 526 U.S. 275, 280 (1999); see also Dean v. United

States, 556 U.S. 568, 576 (2009) (referring to § 924(c) as

punishing “unlawful conduct twice over”). Thus, under

Washington law an accomplice cannot act with the purpose

to promote a combination crime without having knowledge

of both distinct conduct elements—the same standard used

in Rosemond. At the same time, nothing in Davis suggests

that Washington courts would interpret combination crimes

in the same way they interpret enhanced offenses. 8

8

The concurrence calls the distinction between combination crimes and

enhanced offenses “illusory and ultimately incoherent.” Concurring Op.

at 83. We disagree. As the concurrence observes, unlike an aggravated

42 ALFRED V. GARLAND

Accordingly, Davis does not stand for the proposition that

Washington accomplice liability extends beyond that

expressed in Rosemond.

Second, Rosemond’s discussion of § 924(c) does not

purport to define generic accomplice liability law. Rather, it

reflects the challenge of applying federal accomplice

liability law to a combination crime. Though much of

Rosemond builds on general principles, see id. at 70–71, 76–

77, its application of those principles to § 924(c) is novel.

Consequently, some of our sister circuits have declined to

apply Rosemond’s two-headed advance knowledge

requirement outside the context of § 924(c). See, e.g.,

United States v. Simpson, 44 F.4th 1093, 1098–99 (8th Cir.

2022); United States v. Chavez, 951 F.3d 349, 361–62 (6th

Cir. 2020); United States v. Baker, 912 F.3d 297, 313–14

(5th Cir. 2019); Stuckey v. United States, 878 F.3d 62, 71–

72 (2d Cir. 2017). And, more importantly, many states have

explicitly rejected Rosemond’s interpretation of § 924(c) as

incompatible with state law. See, e.g., Hicks v. State, 759

S.E.2d 509, 514–15 & n.3 (Ga. 2014); People v. Sandoval,

488 P.3d 441, 445–46 (Colo. Ct. App. 2018); State v. Ward,

473 S.W.3d 686, 693 (Mo. Ct. App. 2015); see also State v.

Edwards, No. 45764-4-II, 2016 WL 900668, at *9 n.12

(Wash. Ct. App. Mar. 1, 2016). Contrary to the

concurrence’s assertions otherwise, see Concurring Op. at

83–84, we express no opinion on whether the “full

version of an offense, § 924(c) may be “charged and punished in addition

to the predicate offense.” Concurring Op. at 83 (citing 18 U.S.C. §

924(c)(1)(D)(ii)). Section 924(c) is an “entirely new crime” that is

distinct from both the predicate violent or drug offense and the use or

carriage of a firearm. Castillo v. United States, 530 U.S. 120, 125 (2000).

Thus, “the underlying crime of violence [or drug trafficking offense] is

not the basic crime . . . at issue.” Id. at 126.

ALFRED V. GARLAND 43

knowledge” requirement in Rosemond applies to crimes that

are not combination crimes. Rather, we hold that generic

aiding and abetting does not require “full knowledge”

because the requirement arose in the context of an atypical

statute and numerous jurisdictions have refused to apply it

elsewhere.

Third, and relatedly, Alfred has failed to demonstrate

that Washington’s accomplice liability scheme does not

reflect generic law. Washington’s accomplice liability

scheme is not unique. The Washington Supreme Court’s

decision in Davis, for example, is not an outlier: many states

allow conviction of an accomplice to armed robbery without

proof that the accomplice knew another person would

brandish a firearm. See, e.g., State v. Pond, 108 A.3d 1083,

1099 (Conn. 2015); Jones v. State, 648 So.2d 1210, 1211

(Fla. Dist. Ct. App. 1995); People v. Overten, 34 Cal. Rptr.

2d 232, 234 (Cal. Ct. App. 1994). And as we have explained,

Washington is not the only state that allows conviction of an

accomplice for knowing conduct. See, e.g., Ind. Code § 35-

41-2-4. Accordingly, we cannot identify anything “special”

about Washington’s accomplice liability law, such that it

would render Washington law overbroad. See Duenas-

Alvarez, 549 U.S. at 191.

Struggling with our discussion of Washington law, the

dissent cites State v. Dreewes, 432 P.3d 795 (Wash. 2019),

for the proposition that an accomplice in Washington can be

convicted of assault with a deadly weapon despite lacking

knowledge of the principal’s intent to commit assault.

Dissenting Op. at 94–95. But Dreewes held no such thing.

Instead, the Washington Supreme Court found that a jury

could reasonably infer that the defendant, Jennifer Dreewes,

knew that her compatriots would commit assault with a

deadly weapon. Dreewes had “offered the coparticipants

44 ALFRED V. GARLAND

$300 to go to the identified residence, retrieve her items, give

the pink-haired girl two black eyes, and abduct her and bring

her to Dreewes’s property.” Dreewes, 432 P.3d at 801.

Moreover, Dreewes “encouraged her coparticipants to arm

themselves and informed them that four to five adults were

at the residence.” Id. at 802. The Washington Supreme

Court held that this conduct supported a reasonable inference

that despite not “know[ing] the names of all potential

victims,” Dreewes knew her actions would “promot[e] or

facilitat[e] the crime eventually charged.” Id. (internal

quotation marks omitted and emphasis added). Such

knowing conduct is sufficient to establish generic intent. See

Rosemond, 572 U.S. at 77. 9

The dissent’s discussion of Drewees leads to its core

complaint—the dissent accuses us of “collapsing the

purpose and knowledge mental states.” Dissenting Op. at

96. We have done no such thing. We recognize that

knowledge and purpose are distinct. See Wash. Rev. Code

§ 9A.08.010(1)(a)–(b). We also do not dispute that some

states have explicitly held that knowledge cannot support a

9

In an effort to show that knowing conduct in Washington does not equal

intent, the dissent cites State v. A.L.Y., No. 56645-8-I, 2006 WL 2723983

(Wash. Ct. App. Sept. 25, 2006). Dissenting Op. at 95. But A.L.Y., an

unpublished intermediate court decision, merely shows the overlap

between knowing and purposeful conduct. After his compatriot shoved

and threatened a group of younger boys, A.L.Y. “told the boys that the

only way to settle the situation was with money,” and then accepted the

money that the boys handed over. A.L.Y., 2006 WL 2723983, at *3–4

(internal quotation marks omitted). On appeal, A.L.Y. argued that his

subsequent desire to “return the money” disproved any intent to deprive

his victims of their property. Id. at *3. The Washington Court of

Appeals rejected this argument, finding that the facts showed A.L.Y.

actively participated in the robbery. Id. at *4. Such conduct denotes

purpose as well as knowledge.

ALFRED V. GARLAND 45

conviction as an accomplice without additional proof of

intent. See, e.g, Priddy v. Commonwealth, 629 S.W. 3d 14,

19 (Ky. 2021). Nevertheless, our task is to determine

whether Alfred was convicted under a statute that “sweeps

more broadly than the generic crime.” Descamps, 570 U.S.

at 261. We have demonstrated that this is not the case;

conduct that one knows would promote or facilitate the

commission of the crime, like purposeful conduct,

establishes intent to aid and abet under generic law. See

Rosemond, 572 U.S. at 77 (“[F]or purposes of aiding and

abetting law, a person who actively participates in a criminal

scheme knowing its extent and character intends that

scheme’s commission.”).

Lastly, the concurrence argues that Washington departs

from federal generic law because Washington allows

conviction of an individual who “incidentally facilitate[d] a

criminal venture rather than actively participate[d] in it.”

Concurring Op. at 77 (quoting Rosemond, 572 U.S. at 77

n.8). But the concurrence points to no case in which

Washington permitted a conviction for “incident[al]

facilitat[ion].” Id. On the contrary, numerous cases indicate

that Washington requires accomplices to actively participate

in the underlying crime. See, e.g., State v. Luna, 862 P.2d

620, 623 (Wash. Ct. App. 1993) (“A defendant is not guilty

as an accomplice unless he has associated with and

participated in the venture as something he wished to happen

and which he sought by his acts to make succeed.” (emphasis

added)); State v. Clemmons, No. 40847-3-II, 2012 WL

2366895, at *6 (Wash. Ct. App. June 22, 2012) (finding that

a woman charged with rendering criminal assistance could

not have known a man had committed murder because the

government did not prove the woman knew that the man had

“actively participated in the murders as an accomplice”

46 ALFRED V. GARLAND

(emphasis added)); State v. Gobena, No. 63174-8, 2010 WL

1541478 (Wash. Ct. App. Apr. 19, 2010) (upholding

conviction as an accomplice “[b]ecause the State presented

ample evidence establishing that [the defendant] was not

only present at the crime scene but also actively assisting the

principal” (emphasis added)). Indeed, in an opinion issued

after Rosemond, the Washington Supreme Court could find

“no Washington case upholding . . . liability . . . where the

accused did not actively participate in the immediate

physical impetus of harm.” State v. Bauer, 329 P.3d 67, 73

(Wash. 2014) (emphasis added). Thus, even if the

concurrence is correct and “the knowledge and intent

standards amount to the same thing” only in the “subset of

aiding and abetting cases involving active participation in

the actual criminal conduct,” Concurring Op. at 76, all

Washington cases would fall into such a subset.10

V. EFFECT ON PRECEDENT

In Valdivia-Flores, we concluded that Washington had

“codifie[d] the distinction between intent and knowledge

and ma[de] plain that knowledge is a less demanding mens

rea requirement.” 876 F.3d at 1207. We did not consider

10

Because Washington courts do not convict accomplices for incidental

facilitation of a crime, we need not decide the threshold question the

concurrence raises and that Rosemond left open: whether knowledge of

a crime establishes intent to aid and abet when the defendant’s

participation in a crime was incidental. See Rosemond, 572 U.S. at 77

n.8. That said, we note that the line between incidental facilitation and

active participation is a blurry one and that “courts have never thought

relevant the importance of the aid rendered.” Rosemond, 572 U.S. at 75.

Aiding and abetting “comprehends all assistance rendered by words,

acts, encouragement, support, or presence.” Id. at 73 (quoting Reves v.

Ernst & Young, 507 U.S. 170, 178 (1993)); see also United States v.

Delgado, 972 F.3d 63, 74–78 (2d Cir. 2020).

ALFRED V. GARLAND 47

Rosemond, nor did we conduct any survey of generic

accomplice liability law. After reviewing those sources, we

have now explained why we disagree with Validivia-

Flores’s core premise that there is a material difference

between intent and knowledge in this context. Rosemond’s

discussion of the intent requirement to prove federal aiding

and abetting law emphasized the “advance knowledge” of

the putative accomplice, 572 U.S. at 78, and is consistent

with Washington’s required proof that the defendant “acted

with knowledge that his or her conduct would promote or

facilitate the crime [charged],” Cronin, 14 P.3d at 757. We

thus overrule Valdivia-Flores.

To the extent that it remains good law, we overrule

United States v. Franklin for the same reasons. 904 F.3d 793

(9th Cir. 2018), abrogated on other grounds by Shular v.

United States, 140 S. Ct. 779 (2020). Although Franklin

reaffirmed Valdivia-Flores, albeit on broader grounds, it

also failed to consider Rosemond. See Franklin, 904 F.3d at

799 (“if we also look outside federal law to define generic

aiding and abetting liability for purposes of the ACCA, we

reach the same result as under Valdivia-Flores’s narrower,

federal-law-centered, approach”). Franklin concluded that

Washington was an outlier because it allowed conviction of

an accomplice who merely knew “that a crime is being

committed or is about to be committed.” Franklin, 904 F.3d

at 799 (internal quotation marks omitted) (emphasis added).

As we have pointed out repeatedly, this is an incorrect

characterization of Washington law. See Cronin, 14 P.3d at

758.11

11

The concurrence claims that we have threatened the validity of United

States v. Dinkane, 17 F.3d 1192 (9th Cir. 1994). Concurring Op. at 82.

48 ALFRED V. GARLAND

VI. CONCLUSION

We hold that second-degree robbery under Wash. Rev.

Code § 9A.56.190 is a categorical match with generic theft.

Accordingly, we conclude that Alfred has committed an

aggravated felony and deny his petition for review.

PETITION DENIED.

We have not. The concurrence has confused federal law with federal

generic law. The categorical approach compares state law with generic

law, not federal statutory law. See Taylor, 495 U.S. at 598–99. In

defining a generic federal offense, federal statutory law is but one piece

of the puzzle. See Garcia-Jimenez, 807 F.3d at 1084 (“A court applying

categorical analysis ordinarily surveys a number of sources—including

state statutes, the Model Penal Code, federal law, and criminal law

treatises—to establish the federal generic definition of a crime.”).

Although the concurrence observes that “we have long recognized” that

an aider and abettor must have knowledge of “each essential element of

the crime,” Concurring Op. at 81 (quotation omitted and emphasis

added), many other courts have not. See, e.g., State v. Ivy, 350 N.W. 2d

622, 628 (Wis. 1984); Cook v. State, 86 S.W.3d 916, 923–24 (Ark.

2002); State v. Kimble, No. 06 MA 190, 2008 WL 852074, at *8 (Ohio

Ct. App. Mar. 17, 2008). By defining generic law broadly enough to

encompass aiding and abetting schemes that differ from our precedent

construing a particular federal statute, we do not overrule that precedent.

Instead, we merely recognize that our view of aiding and abetting in

Dinkane does not define generic law for purposes of the categorical

analysis.

ALFRED V. GARLAND 49

COLLINS, Circuit Judge, with whom CALLAHAN and

BADE, Circuit Judges, join as to Parts I and II, and with

whom VANDYKE, Circuit Judge, joins as to Part III,

concurring in the judgment in part and dissenting in part:

The question in this case is whether an alien’s conviction

for second-degree robbery in violation of Washington

Revised Code §§ 9A.56.190 and 9A.56.210, and for which

the sentence of imprisonment was more than one year,

counts as an “aggravated felony” rendering the alien

removable under § 237(a) of the Immigration and

Nationality Act (“INA”). I agree with the votes of a majority

of the court that the answer to that question is yes. And

because Petitioner McKenzy Alii Alfred was convicted of

second-degree robbery under those Washington statutes in

2018 and was sentenced to 15 months in prison on that

charge, he was convicted of an “aggravated felony” and was

properly found to be removable on that basis. 1 But I disagree

with, and therefore dissent from, most of the reasoning in the

lead opinion. I concur only in the judgment.

I

Section 237(a) of the INA provides that “[a]ny alien . . .

in and admitted to the United States shall, upon the order of

the Attorney General, be removed if the alien is within one

or more” of certain enumerated “classes of deportable

1

Alfred was also simultaneously convicted of two additional counts of

attempted robbery in violation of Washington Revised Code

§§ 9A.28.020, 9A.56.190, and 9A.56.210, and he received identical

concurrent sentences of 15 months on those counts as well. Because

Alfred is removable if any one of these three convictions counts as an

aggravated felony, I focus my analysis on his robbery conviction rather

than his attempted robbery convictions.

50 ALFRED V. GARLAND

aliens.” See 8 U.S.C. § 1227(a). Among these classes of

deportable aliens are those who have committed any of the

various “[c]riminal offenses” described in § 237(a)(2). Id.

§ 1227(a)(2) (heading). In particular, § 237(a)(2)(A)(iii)

provides that “[a]ny alien who is convicted of an aggravated

felony at any time after admission” is “deportable.” Id.

§ 1227(a)(2)(A)(iii). Section 101(a)(43) of the INA, in turn,

contains a very lengthy definition of the term “aggravated

felony” that includes 21 main alternative categories of

criminal offenses. See id. § 1101(a)(43). Under the final

sentences of § 101(a)(43), any offense falling within one of

these 21 categories counts as an “aggravated felony”

regardless of “whether in violation of Federal or State law”

and “regardless of whether the conviction was entered

before, on, or after” September 30, 1996. See 8 U.S.C.

§ 1101(a)(43); see also Pub L. No. 104-208, Div. C,

§ 321(b), 110 Stat. 3009, 3009-628 (Sept. 30, 1996).

The relevant category at issue here is set forth in

§ 101(a)(43)(G), which defines as an aggravated felony “a

theft offense (including receipt of stolen property) . . . for

which the term of imprisonment [is] at least one year.” See

8 U.S.C. § 1101(a)(43)(G). 2 Determining whether the “term

of imprisonment” is “at least one year” is easy enough—one

needs only to look at the relevant documents showing the

sentence and judgment in the criminal case. See Alberto-

Gonzalez v. INS, 215 F.3d 906, 910 (9th Cir. 2000) (holding

that “the phrase ‘for which the term of imprisonment [is at

least] one year’” in § 101(a)(43)(G) “refer[s] to the actual

sentence imposed by the trial judge”). Given that the

sentence for Alfred’s robbery conviction was 15 months, this

2

The statutory text contains an obvious scrivener’s error in that it

erroneously omits the verb “is.”

ALFRED V. GARLAND 51

requirement of § 101(a)(43)(G) is plainly satisfied here. The

only remaining question is whether that robbery conviction

counts as one for a “theft offense.”

Because removability under the INA turns on whether

Alfred has been “convicted,” 8 U.S.C. § 1227(a)(2)(A)(iii)

(emphasis added), of a “theft offense,” id. § 1101(a)(43)(G)

(emphasis added), the statutory language plainly

“predicate[s] deportation ‘on convictions, not conduct,’”

Mellouli v. Lynch, 575 U.S. 798, 805 (2015) (citation

omitted). As a result, our task is not to “examin[e] whether

an individual’s actions meet a federal standard . . . , but only

whether the individual ‘has... been convicted of an offense’

that does so.” Pereida v. Wilkinson, 141 S. Ct. 754, 762

(2021) (citation omitted). Accordingly, the INA calls for a

“categorical approach,” which requires the court to

determine “whether ‘the state statute defining the crime of

conviction’ categorically fits within the ‘generic’ federal

definition of a corresponding aggravated felony.”

Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (citation

omitted).

The INA, however, does not define the crucial phrase

“theft offense.” Accordingly, we must “interpret that phrase

using the normal tools of statutory interpretation.” Esquivel-

Quintana v. Sessions, 581 U.S. 385, 391 (2017). Given that

“‘[e]lements’ are the ‘constituent parts’ of a crime’s legal

definition,” Mathis v. United States, 579 U.S. 500, 504

(2016) (citation omitted); see also Torres v. Lynch, 578 U.S.

452, 457 (2016) (“The substantive elements primarily define

the behavior that the statute calls a ‘violation’ of federal law”

(simplified)), the INA’s use of the phrase “theft offense”

must be understood as referring to the elements of the

generic concept of “theft,” i.e., “the offense [of theft] as

commonly understood,” Descamps v. United States, 570

52 ALFRED V. GARLAND

U.S. 254, 257 (2013). Our task, then, under the categorical

approach, “focus[es] solely on whether the elements of the

crime of conviction sufficiently match the elements of

generic [theft], while ignoring the particular facts of the

case.” Mathis, 579 U.S. at 504 (emphasis added); see also

Descamps, 570 U.S. at 257 (stating that the categorical

approach requires courts to “compare the elements of the

statute forming the basis of the defendant’s conviction with

the elements of the ‘generic’ crime”).

Applying this comparison-of-elements approach to

second-degree robbery under Washington law makes this an

easy case. We undertook exactly that inquiry in United

States v. Alvarado-Pineda, 774 F.3d 1198 (9th Cir. 2014),

where we held that “a conviction for Washington second-

degree robbery, where accompanied by a sentence of at least

one year, qualifies as an ‘aggravated felony’” under

§ 101(a)(43)(G). Id. at 1203. Specifically, we held that the

federal generic understanding of “theft” has four elements,

namely, “(1) the taking of (2) property (3) without consent

(4) with the intent ‘to deprive the owner of rights and

benefits of ownership.’” Id. at 1202 (citation omitted).

Reviewing the applicable Washington law, we held that the

elements of second-degree robbery under Washington

Revised Code §§ 9A.56.190 and 9A.56.210 are “(1) taking

(2) personal property (3) from another person or from

another’s immediate presence (4) against his or her will

(5) by force or threatened force (6) with the specific intent to

steal.” Id. at 1202–03 (citation omitted). 3 Having thus set

3

Under § 9A.56.210, one commits second-degree robbery “if he or she

commits robbery” as that term is defined in § 9A.56.190. First-degree

robbery, by contrast, requires proof of additional elements that increase

ALFRED V. GARLAND 53

forth the relevant elements that define both offenses, we

found a categorical match inasmuch as all of the elements of

federal generic theft are necessarily met if the elements of

the more serious offense of Washington second-degree

robbery are satisfied:

A comparison of the elements of the statute

to the elements of generic theft makes clear

that the “full range of conduct” criminalized

by Washington second-degree robbery falls

within the meaning of generic theft in that

both require (1) the taking of (2) personal

property (3) without consent and (4) with the

specific intent to steal. One leading treatise

states that “[r]obbery consists of all [the]

elements of larceny . . . plus two additional

requirements”: that the property be taken

from the victim’s presence, and that the

taking be accomplished by means of force or

fear.

Id. at 1203 (alterations in original) (citation omitted).

The lead opinion agrees with Alvarado-Pineda on this

point, and it also notes that “[n]either Alfred nor the

government has questioned the correctness of that decision.”

See Opin. at 14. In my view, that should be the end of the

inquiry. As defined by its generic elements, the federal

generic concept of a “theft offense” under § 101(a)(43)(G)

unquestionably embraces the crime of Washington second-

the seriousness of the offense, such as the use of a “firearm” or the

infliction of “bodily injury.” See WASH. REV. CODE

§ 9A.56.200(1)(a)(ii), (iii).

54 ALFRED V. GARLAND

degree robbery, as that offense is defined by the elements set

forth in § 9A.56.190. Because Alfred’s sentence exceeded

one year, that “theft offense” was an “aggravated felony.”

See 8 U.S.C. § 1101(a)(43)(G). Alfred therefore was

“convicted of an aggravated felony,” and he was properly

found to be removable. Id. § 1227(a)(2)(A)(iii). On that

basis, the petition for review should be denied.

II

I hasten to add that the straightforward analysis I have

set forth above is contrary to our prior decision in United

States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017).

There, we held that, in “determin[ing] whether an offense

qualifies as an ‘aggravated felony’” under the INA, the

categorical approach requires us to go beyond simply

comparing the elements of the generic federal offense and

the particular state offense. Id. at 1206. We reasoned that,

because “aiding and abetting liability” is “implicit” in “every

criminal charge,” the categorical approach requires us also

to determine whether the “definition of aiding and abetting

liability” under the relevant state’s law “is essentially the

same as the federal definition so that they do, in fact, match

categorically.” Id. at 1207 (emphasis added). Consequently,

under Valdivia-Flores, a mismatch in aiding and abetting

theories under state and federal law could be enough to find

that the categorical approach has not been satisfied, even

though the relevant state offense’s elements are a categorical

match to the elements of the particular federal generic

“aggravated felony.” For multiple reasons, I respectfully

disagree with Valdivia-Flores on this point, and I would

overrule that aspect of the decision.

ALFRED V. GARLAND 55

A

Nothing in the language of the INA supports Valdivia-

Flores’s view that, in determining whether a particular state

offense qualifies as an aggravated felony, courts must

undertake a comparative analysis of state and federal

concepts of aiding and abetting liability. On the contrary,

consideration of the statutory text leads to the opposite

conclusion.

As I have explained, the text of the INA requires the

court to determine whether the alien has been “convicted of

an aggravated felony,” 8 U.S.C. § 1227(a)(2)(A)(iii), with

the relevant felony here being a “theft offense,” id.

§ 1101(a)(43)(G). Because crimes are defined by their

elements, see Mathis, 579 U.S. at 504, the INA’s references

to a particular “felony” or “offense” must be understood as

referring only to the elements of the relevant generic federal

crime or the relevant state offense. See supra at 51–52. And

that is exactly what the Supreme Court has stated, time and

again. See, e.g., Mathis, 579 U.S. at 504 (explaining that the

categorical approach “focus[es] solely on whether the

elements of the crime of conviction sufficiently match the

elements” of the relevant generic offense (emphasis added));

id. at 510 (“We consider only the elements of the offense,

without inquiring into the specific conduct of this particular

offender.” (simplified) (emphasis added)). Indeed, the Court

in Mathis aptly noted that this “simple point” has become a

“mantra” in its categorical-approach decisions, including

those “in immigration cases.” Id. at 510 & n.2.

Mathis further underscored this “elements-only”

approach by drawing a sharp distinction between the

“elements” of a prior offense and “‘alternative means’ of

commission” of an offense. Id. at 514 (citation omitted).

56 ALFRED V. GARLAND

The “elements” of a prior offense tell us “what a jury

‘necessarily found’ to convict a defendant (or what he

necessarily admitted),” because each of those elements must

be unanimously found by the jury beyond a reasonable

doubt. Id. at 515 (emphasis added) (citation omitted); see

also Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020); In

re Winship, 397 U.S. 358, 364 (1970). By contrast, an

alternative “means” of committing an offense is a “non-

elemental fact” that “is by definition not necessary to support

a conviction.” Mathis, 579 U.S. at 515 (simplified). Thus,

for example, Mathis noted that Iowa’s burglary law required

the “burgled location” to be a qualifying “premises,” but it

did not require the jury to agree which of the various types

of “premises” the particular location was (e.g., a “building,

other structure, or vehicle”). Id. at 517–18. In that example,

the alternative ways of satisfying the “premises” element

were therefore “means” and not “elements.” Id. Having

drawn this clear distinction between elements and means,

Mathis squarely held that the categorical approach

“disregards the means by which the defendant committed his

crime, and looks only to that offense’s elements.” Id. at 517.

Of course, where, as in Mathis, the listed means (i.e.,

building, structure, or vehicle) are alternative methods of

proving a particular element (i.e., premises), that

overarching element subsumes those alternative means, and

in that sense those means will still be relevant in ascertaining

the sweep of that element in undertaking the categorical

approach’s elements-only comparison. Thus, in Mathis, the

inclusion of “vehicles” in the Iowa burglary statute’s

premises element meant that that element did not

categorically match the corresponding element of the federal

generic offense, which “requires unlawful entry into a

building or other structure.” Id. at 507 (citation and internal

ALFRED V. GARLAND 57

quotation marks omitted). But the requisite categorical

analysis under Mathis remains strictly an “elements-only

inquiry.” Id. at 510.

Mathis’s reasoning refutes Valdivia-Flores’s view that

the categorical approach requires us to undertake a

comparison of state and federal aiding and abetting theories.

It is well settled, as a matter of both federal law and

Washington law, that aiding and abetting is merely a means

of finding principal liability, that it does not itself constitute

an element of the underlying offense, and that jurors need

not unanimously agree as to whether a defendant is guilty as

a principal or as an aider and abettor. See United States v.

Garcia, 400 F.3d 816, 818–20 (9th Cir. 2005) (holding that,

because “[a]iding and abetting is simply one means of

committing a single crime,” it “does not matter whether

some jurors found that [the defendant] performed these acts

himself, and others that he intended to help someone else

who did”); State v. Hoffman, 804 P.2d 577, 605 (Wash.

1991) (holding that Washington law does not require “that

jurors be unanimous as to the manner of an accomplice’s and

a principal’s participation as long as all agree that they did

participate in the crime”). 4 When aiding and abetting is

4

See also Young v. United States, 22 F.4th 1115, 1122 (9th Cir. 2022)

(“[A]iding and abetting is not a separate offense; it is simply one means

of committing the underlying crime.” (citation omitted)); United States

v. Sutcliffe, 505 F.3d 944, 959 (9th Cir. 2007) (“[A]iding and abetting is

not a separate and distinct offense from the underlying substantive crime,

but is a different theory of liability for the same offense.” (citation

omitted)); United States v. Ferguson, 676 F.3d 260, 279 (2d Cir. 2011)

(noting that the court had previously “suggested that a jury is unanimous

even if some jurors convicted on a theory of principal liability and others

on aiding and abetting” and extending that principle to other alternative

theories of principal liability).

58 ALFRED V. GARLAND

invoked, it does not displace the elements of the underlying

offense, and the jury must still find that, as to either or both

of the co-participants, each of the elements of that offense

have been met. See, e.g., United States v. Mann, 811 F.2d

495, 497 (9th Cir. 1987) (noting that, even when the

Government relies on an aiding and abetting theory, it “must

prove that someone committed the underlying crime”); see

also United States v. Sutcliffe, 505 F.3d 944, 959 (9th Cir.

2007) (“[A] defendant can only be convicted for aiding and

abetting where some underlying crime has been

committed.”); State v. Carothers, 525 P.2d 731, 736 (Wash.

1974) (noting that, when aiding and abetting is invoked,

“[t]he elements of the crime remain the same”), overruled on

other grounds by State v. Harris, 685 P.2d 584, 587 (Wash.

1984); State v. Slater, 476 P.2d 719, 721 (Wash. Ct. App.

1970) (holding that, when the prosecution relies on aiding

and abetting, it is still “required to prove that a crime had

actually been committed”); see generally WAYNE R.

LAFAVE, SUBSTANTIVE CRIMINAL LAW § 13.3(c) (3d ed.

2022 update) (stating that “the guilt of the principal must be

established at the trial of the accomplice as a part of the proof

on the charge against the accomplice”). These

considerations underscore that the requirements of aiding

and abetting liability do not qualify as “elements” of the

underlying offense for purposes of the categorical analysis.

See Mathis, 579 U.S. at 517–18 (stating that, if under the

applicable substantive law, the “jury need not agree” on a

particular point, that point is not an “element” for purposes

of the categorical approach). It follows that, under Mathis,

we must “disregard[]” aiding and abetting liability in

determining whether there is a categorical match between a

state offense and a federal generic offense. Id. at 517.

ALFRED V. GARLAND 59

Moreover, unlike in Mathis, the issue of aiding and

abetting liability is not subsumed into one of the constituent

elements of the underlying predicate offense. In Mathis, the

particular range of means at issue (i.e., building, structure, or

vehicle) involved alternative options for satisfying the

premises element of the Iowa burglary statute. As a result,

they were still relevant to the categorical approach’s

elements-only analysis, because they necessarily informed

the understanding of the substantive breadth of that premises

element. See supra at 55–57. The same cannot be said of

aiding and abetting liability. When aiding and abetting has

been invoked as a theory of liability with respect to a

particular defendant, it requires the prosecution to show that

(1) the underlying offense was committed—i.e., each

element of the offense is satisfied as to one or both of the co-

participants; and (2) the particular defendant is liable for that

offense under the relevant jurisdiction’s aiding and abetting

principles. 5 See supra at 57–58. Because the categorical

approach focuses only on the elements of the charged

offense (viz., component (1) listed above), it disregards

aiding and abetting liability (viz., component (2) listed

above). As Mathis explained, “Congress well knows” how

to require consideration of “non-elemental facts,” namely,

by using “different language” from a mere reference to a

type of offense. 579 U.S. at 511. Here, there is no such

distinct language in the INA that could be construed as

referring to any relevant “non-elemental facts,” such as

whether the defendant’s liability as a principal rests on

aiding and abetting. Congress is presumed to know the law,

5

The lead opinion is therefore wrong in contending that, under my view,

the invocation of aiding and abetting liability “does not affect what a jury

must find to convict a defendant.” See Opin. at 18.

60 ALFRED V. GARLAND

see Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1072

(2020), and it therefore was well aware that every

jurisdiction uses some form of aiding and abetting liability

as an alternative means of principal liability for any given

offense. But Congress nonetheless used no language

suggesting that it intended the INA’s applicability to turn on

whether a conviction was or was not based on aiding and

abetting, much less that it turns on what particular version of

aiding and abetting liability a jurisdiction employs.

The plurality 6 nonetheless seems to think that, when

aiding and abetting liability is invoked, the requirements of

that doctrine (or at least the mental state requirement)

effectively serve as “elements” for purposes of the

categorical approach and therefore must be considered.

According to the plurality, “because accomplice liability is

one means of satisfying an element necessary to support a

conviction, we must consider it.” Opin. at 21. The

plurality’s premise appears to be that, because the elements

of the underlying offense might be proved only as to the

third-party perpetrator and not as to the defendant, the

requirements of the aiding and abetting doctrine that renders

the defendant liable for the perpetrator’s offense effectively

serve as the “elements” of the defendant’s offense. Although

there may be certain contexts in which the plurality’s

analogy makes sense, 7 it remains inapplicable to the

6

Although the lead dissent agrees with the plurality’s bottom-line

conclusion “that, under the categorical approach,” the court “must

consider accomplice liability in our categorical analysis,” it does not join

or endorse the plurality’s reasoning on that score. See Dissent at 87–88.

7

For example, in a simple case in which the prosecution proceeds solely

on the theory that the defendant was an aider and abettor to a crime

ALFRED V. GARLAND 61

categorical approach called for by the INA, which focuses

only on whether the particular crime that is listed on the

defendant’s judgment of conviction qualifies as a “theft”

offense. As I have explained, that inquiry calls only for a

comparison of the elements of that theft offense to the

elements of federal generic theft. See supra at 51–56. The

simple language Congress used—i.e., whether the defendant

has been “convicted,” 8 U.S.C. § 1227(a)(2)(A)(iii), of a

“theft offense,” id. § 1101(a)(43)(G)—ignores the subject of

aiding and abetting and instructs us to ask whether the

particular “offense” of conviction listed on the defendant’s

conviction documents—here, second-degree robbery under

Washington Revised Code §§ 9A.56.190 and 9A.56.210—is

a “theft” offense. Because offenses are defined by their

elements, that would naturally be understood as an

instruction to examine the elements of second-degree

robbery and to compare them to the elements of generic

theft. Congress did not ask us to go beyond examining the

particular offense of conviction and to determine whether

(due to the availability of aiding and abetting liability) the

underlying conduct that led to the defendant’s conviction

may not itself have constituted “theft.” See Descamps, 570

U.S. at 263 (“[T]he categorical approach’s central feature

[is] a focus on the elements, rather than the facts, of a

crime.”).

In nonetheless insisting that an elements-based approach

embraces aiding and abetting, the plurality reasons that the

committed by another person, the elements of the defendant’s offense,

for purposes of the constitutional right to a jury finding as to each

element of the offense, will extend to the elements of aiding and abetting

liability. See Solis v. Garcia, 219 F.3d 922, 926–27 (9th Cir. 2000)

(citing Winship, 397 U.S. at 364).

62 ALFRED V. GARLAND

general availability of the alternative of aiding and abetting

liability is equivalent to the availability of alternative means

for proving a given element within the definition of a

particular offense. Thus, in the plurality’s view, (1) the

ability to invoke aiding and abetting (with its allegedly lesser

mens rea) is no different from (2) a hypothetical statute in

which the prosecution may prove the underlying theft

offense itself through either of two alternative mental states.

See Opin. at 21–22. Treating these two circumstances

differently, the plurality concludes, “makes no sense.” See

Opin. at 23. But this is just another way of saying that

Congress should have drawn a line that gives controlling

weight to the defendant’s underlying conduct, rather than to

what the particular offense of conviction happens to be.

Congress chose the latter line, and so the focus is limited to

a comparison of the elements of the particular offense of

conviction. Options for proving one of the constituent

elements within the definition of a particular offense must be

considered in that elements-only analysis, but the general

availability of aiding and abetting liability is not relevant.

Noting that the elements-only approach allows a court to

determine “what facts are necessarily established by a

conviction for the state offense,” Moncrieffe, 569 U.S. at 205

n.11 (emphasis added), the plurality worries that, absent an

additional inquiry into state aiding and abetting law, a court

would be unable to draw any conclusions as to what the

individual defendant’s underlying conduct necessarily was.

See Opin. at 23–24. According to the plurality, the

defendant’s conviction of a “theft offense” might just mean

that someone else whom the defendant aided committed a

theft offense and not that the defendant’s conduct actually

amounted to theft. See Opin. at 23. Once again, the plurality

erroneously assumes that the statute’s focus is on defining

ALFRED V. GARLAND 63

and delimiting the defendant’s personal underlying conduct.

But that is not what the statute says. As I have repeatedly

explained, it merely asks whether the defendant has been

“convicted,” 8 U.S.C. § 1227(a)(2)(A)(iii), of a “theft

offense,” id. § 1101(a)(43)(G). That simple language

merely instructs the court to ascertain whether the particular

offense that is listed on the alien’s conviction documents

counts as a “theft offense” under the familiar elements-only

approach. It does not call for the court to “traverse the

metaphysical line between” principals and accomplices “as

a way of distinguishing degrees of culpability.” See Opin. at

19–20.

Accordingly, in determining whether a given state

criminal statute qualifies as a “theft offense” within the

meaning of the INA, all that matters is whether the elements

of the state offense are a categorical match for federal

generic “theft.” Principles of aiding and abetting liability do

not constitute elements of that underlying offense and are

therefore irrelevant.

B

Valdivia-Flores nonetheless appeared to assume,

without discussion, that a categorical-match inquiry into

aiding and abetting theories was required by Gonzalez v.

Duenas-Alvarez, 549 U.S. 183, 189 (2007). See Valdivia-

Flores, 876 F.3d at 1207. The plurality’s opinion makes this

claim explicitly (as does Judge VanDyke in his dissent). See

Opin. at 14–18; see also VanDyke Dissent at 97–102. But

Duenas-Alvarez did no such thing.

In Duenas-Alvarez, the Supreme Court addressed

whether we had been correct in “holding that ‘aiding and

abetting’ a theft is not itself a crime that falls within the

generic definition of theft” for purposes of INA

64 ALFRED V. GARLAND

§ 101(a)(43)(G). See 549 U.S. at 188–89. The Court

concluded that we had erred and that the “generic definition

of theft” under § 101(a)(43)(G) does include “one who aids

or abets a theft” either “during [or] before the crime.” Id. at

189–90. 8 As the Court explained, because the laws of the

federal Government and of all 50 States treat aiders and

abettors as equivalent to principals, the INA’s reference to a

generic “theft offense” necessarily “covers such ‘aiders and

abettors’ as well as principals.” Id. at 190. In other words,

the “criminal activities” of such “aiders and abettors of a

generic theft” must be understood as “themselves fall[ing]

within the scope of the term ‘theft’ in the federal statute.”

Id. Nothing in the analysis set forth earlier is inconsistent

with Duenas-Alvarez’s holding that the generic federal

“theft offense” includes a theft offense that may have rested

on an aiding and abetting theory. On the contrary, by

“disregard[ing]” such “non-elemental” considerations as

aiding and abetting liability, the categorical approach’s

“elements-only inquiry” ensures that the term “theft

offense” will cover any aiders and abettors who have been

convicted of a qualifying “theft offense” under the elements

test. Mathis, 579 U.S. at 510, 515, 517.

The plurality, however, concludes that a categorical-

match comparison of aiding and abetting theories is required

as a result of the Supreme Court’s analysis of Duenas-

Alvarez’s alternative argument challenging the particulars of

California’s approach to aiding and abetting. See Opin. at

14–15. That is wrong. In the cited discussion, the Court

8

As the Court recognized, the same cannot be said of “accessories after

the fact,” who are not similarly uniformly treated as equivalent to a

principal offender. See Duenas-Alvarez, 549 U.S. at 189–90. That

distinction is not relevant here.

ALFRED V. GARLAND 65

addressed Duenas-Alvarez’s contention that, even

conceding that the phrase “theft offense” must ordinarily be

understood as including aiders and abettors of theft,

“California’s version of the doctrine” of aiding and abetting

was so “unlike that of most other States”—so “special,” in

the Court’s phrasing—that “it criminalizes conduct that most

other States would not consider ‘theft.’” Duenas-Alvarez,

549 U.S. at 191. Taking Duenas-Alvarez’s argument at face

value, the Court proceeded to reject it on the straightforward

ground that its predicate assumption was wrong: Duenas-

Alvarez, the Court held, had simply failed to “show that

California’s law is somehow special.” Id. Nothing in the

Court’s holding or analysis on this point suggests that it was

even undertaking—much less mandating—a categorical-

match analysis between federal generic aiding and abetting

principles and California aiding and abetting principles. The

Court conspicuously did not undertake to identify, as the

plurality does, the elements of “generic accomplice liability”

and to then compare them to the elements of the relevant

State’s aiding and abetting liability. See Opin. at 24–46. It

simply rejected, as unsupported, Duenas-Alvarez’s

underlying premise that California was some sort of extreme

outlier on aiding and abetting doctrine. See Duenas-Alvarez,

549 U.S. at 193 (noting that, even if California’s aiding and

abetting caselaw arguably contained some “expansive

concept[s],” those concepts did not “extend significantly

beyond the concept as set forth in the cases of other States”).

Moreover, because the Court rejected that premise, the Court

never addressed what would have followed if Duenas-

Alvarez had been correct in his analysis of California law.

66 ALFRED V. GARLAND

Put simply, Duenas-Alvarez cannot bear the weight the

plurality places on it. 9

C

There are additional considerations that further confirm

that the categorical approach does not require us to

undertake a comparative analysis of federal and state aiding

and abetting principles.

First, the practical implications of Valdivia-Flores’s

approach are so nonsensical that we should not attribute

them to Congress unless the statutory language requires that

result (which it does not). In Valdivia-Flores, we found a

categorical mismatch between Washington aiding and

abetting liability and generic federal aiding and abetting

liability, and we noted that one potential consequence of

finding that mismatch was that “no Washington state

conviction can serve as an aggravated felony at all.” 876

F.3d at 1209 (emphasis added). We nonetheless rejected the

Government’s “pragmatic argument” that it “cannot have

been Congress’s intent” to thus exempt all Washington

felons from this aspect of immigration law, because we

concluded that, as an “inferior court,” we were bound to

accept that consequence of the categorical approach. Id. at

1208–09. However, for the reasons I have explained,

nothing in Supreme Court precedent requires us to undertake

9

Judge VanDyke concludes that Duenas-Alvarez must be understood as

mandating a categorical-approach comparison of aiding and abetting

theories, because the Court in that case did not sua sponte raise the

threshold question of whether any such comparison was required but

instead decided the case on the narrower ground that Duenas-Alvarez’s

argument failed on its own terms. In my view, we can infer nothing from

the fact that the Court did not reach that broader issue—except that it

thereby remains open for us to reach it.

ALFRED V. GARLAND 67

a categorical-match analysis of aiding and abetting theories

as an aspect of the categorical approach. And I find it

altogether impossible to believe that, by simply instructing

us to determine whether aliens have convictions for such

offenses as “illicit trafficking in a controlled substance,”

“illicit trafficking in firearms,” a “theft offense,” a “burglary

offense,” “murder,” “forgery,” and “perjury,” 8 U.S.C.

§ 1101(a)(43)(A), (B), (C), (G), (R), (S), Congress was

supposedly thereby instructing us to assess the adequacy of

each State’s aiding and abetting theories and then, if we

found them inadequate, to grant state-wide exemptions from

those provisions of the INA to all criminal aliens in the

relevant States. Surely if Congress had meant to establish

such a general regime of wholesale state-by-state exemption

from the criminal alien provisions of the INA, it would have

used language more clearly indicative of such an

extraordinary result. See AMG Cap. Mgmt., LLC v. FTC,

141 S. Ct. 1341, 1349 (2021) (“Congress does not hide

elephants in mouseholes.” (simplified)).

Second, Valdivia-Flores’s approach would produce a

very peculiar anomaly within the INA itself. Most of INA

§ 101(a)(43)’s alternative “aggravated felony” definitions

turn on a whole-offense comparison of elements of the sort

described above with respect to the “theft offense” here. But

there are some in which an offense can be designated as an

“aggravated felony” based on the presence of a single

element. For example, one enumerated category of

“aggravated felony” is a “crime of violence,” which is

defined as “an offense that has as an element the use,

attempted use, or threatened use of physical force against the

person or property of another.” 18 U.S.C. § 16(a) (emphasis

added) (cross-referenced in INA § 101(a)(43)(F)). Because,

in such a case, the inquiry turns only on whether the state

68 ALFRED V. GARLAND

offense contains that one particular element, no other feature

of the state offense (including its applicable theory of aiding

and abetting liability) is relevant. See Amaya v. Garland, 15

F.4th 976, 985–86 (9th Cir. 2021) (holding that Valdivia

Flores’s comparison of aiding and abetting theories does not

apply when the element-of-physical-force clause of the

definition of “crime of violence” is invoked (citing United

States v. Door, 917 F.3d 1146 (9th Cir. 2019)). The result

would be that we would not be required to undertake a

categorical-match comparison of aiding and abetting

theories in determining whether an alien is deportable for

having committed a “crime of violence,” but (under

Valdivia-Flores) we would have to undertake such a

comparison in the case of convictions involving “illicit

trafficking in a controlled substance,” “illicit trafficking in

firearms,” a “theft offense,” a “burglary offense,” “murder,”

“forgery,” and “perjury.” 8 U.S.C. § 1101(a)(43)(A), (B),

(C), (G), (R), (S). It is extremely unlikely that Congress

intended such a peculiar disparity in approach when it

created its list of aggravated felonies in INA § 101(a)(43).

Third, there is no reason why Valdivia-Flores’s (and the

plurality’s) expansion of the categorical approach to include

alternative theories of principal liability would be limited to

aiding and abetting. Next up, we will presumably have to

consider whether a given State’s version of Pinkerton

liability 10 matches federal generic Pinkerton liability and

10

Under Pinkerton v. United States, 328 U.S. 640 (1946), a defendant

may “be held liable for a substantive offense committed by a co-

conspirator as long as the offense occurred within the course of the

conspiracy, was within the scope of the agreement, and could reasonably

have been foreseen as a necessary or natural consequence of the unlawful

agreement.” See United States v. Alvarez-Valenzuela, 231 F.3d 1198,

ALFRED V. GARLAND 69

whether a state’s version of causing-a-violation liability11

matches a federal generic version. Once again, it seems hard

to believe that, merely by instructing us to determine

whether Alfred’s judgment of conviction was for a “theft

offense,” Congress was thereby requiring us to undertake

such a comparative analysis of every alternative general

theory for criminal liability in a given jurisdiction. The more

sensible conclusion is that the INA ignores all such

background principles of principal liability and only asks us

to check whether, in light of its elements, the particular

offense listed on a given judgment qualifies as a “theft

offense.”

* * *

For all of these reasons, I would overrule Valdivia-

Flores to the extent that it requires a comparison of state and

federal aiding and abetting theories. The categorical

approach’s “elements-only inquiry” requires us to disregard

such non-elements and to instead compare only the elements

of the state offense and the federal generic offense. Because

it is undisputed that Alvarado-Pineda correctly found such a

1202 (9th Cir. 2000). As we have noted, “aiding-and-abetting liability

differs from Pinkerton liability,” and Pinkerton may allow for conviction

as a principal when aiding and abetting would not. See United States v.

Bingham, 653 F.3d 983, 997 (9th Cir. 2011).

11

As we explained in United States v. Armstrong, 909 F.2d 1238 (9th

Cir. 1990), the proof requirements for establishing liability under the

theory that the defendant “cause[d] an act to be done which if directly

performed by him or another would be an offense against the United

States,” see 18 U.S.C. § 2(b), are not identical to those for traditional

aiding and abetting under 18 U.S.C. § 2(a). See 909 F.2d at 1241

(holding that, “[d]espite this difference, however, courts have implied

both subsections of § 2 in a federal indictment, whether or not they have

been specifically charged”).

70 ALFRED V. GARLAND

categorical match between the elements of Washington

second-degree robbery and the elements of federal generic

theft, Alfred was convicted of a “theft offense.” Because his

sentence for that offense exceeded one year, his conviction

constitutes an “aggravated felony” and he was properly

found to be deportable and removable. His petition for

review must therefore be denied.

III

What I have said thus far is sufficient to dispose of the

case, and I therefore am not required to address whether

Washington aiding and abetting law is a categorical match

for federal generic aiding and abetting law. While I

therefore ultimately decline to address that specific issue, I

nonetheless feel compelled to note that, on the way to its

conclusion that Washington aiding and abetting law matches

federal generic aiding and abetting law, the majority makes

several statements about the scope of federal aiding and

abetting law under 18 U.S.C. § 2 that are contrary to well-

settled authority.

A

Before addressing the majority’s serious misstatements

about federal aiding and abetting under § 2, I cannot help

making a few preliminary observations about the peculiar

way in which the majority approaches its task of defining

generic aiding and abetting liability for purposes of applying

the categorical approach.

The majority’s articulation of federal generic aiding and

abetting liability largely ignores the conduct requirements

and instead focuses on the mental state requirement. As to

that issue, the majority notes that the States follow at least

four different approaches—some require “purpose”; others

ALFRED V. GARLAND 71

require only “knowledge”; others use the same mens rea as

for the underlying offense; and others employ the so-called

“natural and probable consequences doctrine.” See Opin. at

27–30. Noting that “a majority of jurisdictions use statutory

language that requires a showing of purpose or something

similar,” the majority “hold[s] that generic accomplice

liability requires a showing that the putative accomplice

intentionally aided or abetted another in the commission of

the crime.” See Opin. at 30, 35 (emphasis added). But

because the majority deems the terms “intent,” “purpose,”

and “knowledge” to be “largely synonymous” in the

“context” of aiding and abetting, the majority “also

conclude[s] that advance knowledge of the crime is

sufficient to support a conviction for generic accomplice

liability.” See Opin. at 30–31, 35–36. And, that means,

according to the majority, that the generic form of aiding and

abetting is “broad” and “encompass[es] jurisdictions that

require purposeful conduct, as well as those that require

accomplices to act with knowledge that their conduct will

promote or facilitate commission of the crime.” See Opin.

at 36. Moreover, based on the Supreme Court’s decision in

Duenas-Alvarez, the majority concludes that the “generic

definition of accomplice liability” also “encompasses

jurisdictions that use a natural and probable consequences

doctrine.” See Opin. at 36-37. And, of course, the derivative

mens rea approach will generally require at least knowledge

(which, as the majority notes, roughly corresponds to “the

concept of general intent” that is ordinarily the minimum

mens rea required for most offenses). See Opin. at 32. As a

result, all of the States’ disparate approaches to mens rea are

embraced within the majority’s expansive concept of

“generic accomplice liability.”

72 ALFRED V. GARLAND

Thus, in contrast to the typical categorical approach to

defining a given generic offense—in which a specific set of

minimum elements would be articulated—the majority

ultimately does not come up with a single formula for

generic aiding and abetting. Instead, the majority concocts

a multiple-alternatives approach that includes every variety

of the mens rea requirement that is currently in use. Given

that, by the end of section IV(B) of its opinion, the majority

has already defined generic aiding and abetting so broadly

and so eclectically that it includes all of the approaches

followed by all 50 States, I am not quite sure why it takes so

many additional pages to find a categorical match with

Washington law.

Ironically, the end result of the majority’s expansive

approach to defining generic aiding and abetting liability is

arguably the same as mine. That is, if (as the majority posits)

“generic aiding and abetting” is so broadly defined that

every alternative approach qualifies as a match, then the

ultimate outcome is the same as it would be if (as I have

argued) the entire step of comparing aiding and abetting

theories is simply omitted altogether. While I am gratified

with that bottom line result, the majority’s analysis

nonetheless is predicated on a seriously flawed intermediate

premise. Specifically, as I explain in the next section, the

majority is quite wrong in stating that, in the context of

aiding and abetting liability, purpose and knowledge are

“largely synonymous.”

B

In finding a categorical match between Washington and

federal generic aiding and abetting law, the majority makes

two key errors that directly bear on the scope of federal

aiding and abetting liability under 18 U.S.C. § 2. First, the

ALFRED V. GARLAND 73

majority contends that the construction of § 2 aiding and

abetting in Rosemond v. United States, 572 U.S. 65 (2014),

supports the majority’s erasure of the distinction between

intent and knowledge in the context of aiding and abetting

generally. Second, the majority also dramatically narrows

the applicability of Rosemond’s holding that, to qualify as

aiding and abetting under § 2, the defendant’s “inten[t] to

facilitate th[e] offense’s commission” “must go to the

specific and entire crime charged.” Id. at 76. The majority

seriously errs on both counts. And because we are sitting en

banc, the majority’s errors have now overturned settled law

in ways that may have a significant impact across the entire

federal criminal justice system in our circuit.

1

To set the majority’s errors in context, I begin with some

important background concerning the scope of aiding and

abetting liability under § 2.

One of the central problems of aiding and abetting law is

how to define the line between genuinely culpable assistance

in the commission of a particular offense and more

peripheral or attenuated conduct that might be said merely to

indirectly facilitate an offense. This concern is reflected in

the many hypotheticals mentioned on this subject in the

internal debates of the American Law Institute (“ALI”) that

preceded its adoption of the Model Penal Code. Would

aiding and abetting liability extend, for example, to a “utility

[that] provides telephone or telegraph services, knowing it is

used for bookmaking” or to a “vendor [who] sells with

knowledge that the subject of the sale will be used in the

commission of a crime”? As reflected in the ALI’s

discussions, there are at least two ways to address this crucial

line-drawing problem. One approach, which was ultimately

74 ALFRED V. GARLAND

adopted in the Model Penal Code, is to cabin aiding and

abetting liability by requiring proof that the defendant acted

with a highly culpable mental state. Thus, that Code allows

one who “aids” in the commission of an offense to be liable

as a principal only if he or she does so “with the purpose of

promoting or facilitating the commission of the offense.”

See MODEL PENAL CODE § 2.06(3)(a)(ii) (ALI 1985)

(emphasis added). A second approach, which was reflected

in an earlier draft of the Code, combined a less demanding

mental state of knowledge with more “rigorously drafted”

“conduct requirements.” See id. cmt. 6(c) (emphasis added).

Under this approach, it would suffice to show that the aider

and abettor “knowingly facilitated” the commission of a

crime, but the requisite facilitation had to be “substantial” or

to have involved “provid[ing] the means or opportunity for

the commission of the crime.” Id. (emphasis added).

The federal aiding and abetting statute, 18 U.S.C. § 2,

has long been construed as following the first approach—

that is, it combines a demanding mental state requirement

with a more broadly defined facilitation requirement. As the

Supreme Court explained in Rosemond, the aider and abettor

must be shown to have “intend[ed] to facilitate [the]

offense’s commission” in the sense that it is “‘something that

he wishes to bring about.’” 572 U.S. at 76–77 (quoting Nye

& Nissen v. United States, 336 U.S. 613, 619 (1949) (in turn

quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.

1938) (L. Hand, J.))). Moreover, it is not sufficient that the

defendant intended “to advance some different or lesser

offense”; “[i]nstead, the intent must go to the specific and

entire crime charged.” Id. at 76 (emphasis added). But this

demanding mental state requirement is paired with a fairly

expansive “affirmative-act requirement.” Id. at 74. To

establish the requisite facilitation of the offense, the

ALFRED V. GARLAND 75

Government only needs to show that the defendant’s actions

“facilitated one component” of the offense and the

“importance of the aid rendered” is not “relevant.” Id. at 74–

75. Indeed, the Court explained, “a person’s involvement in

the crime could be not merely partial but minimal too.” Id.

at 73. Given the “minimal” nature of the affirmative-act

requirement under federal aiding and abetting law, the

demanding scienter requirement plays an “important” role in

ensuring that the Government is not able to “sweep within

the drag-net of conspiracy [and abetting] all those who have

been associated in any degree whatever with the main

offenders.” United States v. Falcone, 109 F.2d 579, 581 (2d

Cir. 1940) (L. Hand, J.).

2

The majority’s decision today, however, wrongly

weakens § 2’s demanding mental state requirement in two

key respects.

a

First, the majority erroneously contends that, under

Rosemond’s description of § 2 aiding and abetting liability,

intent and knowledge are “largely synonymous,” and that, as

a result, there is “no significant daylight” between

Washington’s knowledge standard for aiding and abetting

liability and § 2’s intent standard as construed in Rosemond.

See Opin. at 31, 39; see also Opin. at 32–34, 39. 12 The

12

The majority confusingly refers to the causing-a-violation theory of

principal liability contained in § 2(b), see Opin. at 32, whereas

Rosemond construed and applied the more traditional aiding and abetting

liability embodied in § 2(a). See Rosemond, 572 U.S. at 68; see also

supra at 68–69 & n.11. The majority’s equating of knowledge and

76 ALFRED V. GARLAND

majority claims that its across-the-board equivalence

between knowledge and intent in the context of aiding and

abetting follows from Rosemond’s holding that “a person

who actively participates in a criminal scheme knowing its

extent and character intends that scheme’s commission.”

572 U.S. at 77 (emphasis added). The majority’s reasoning

fails, because it ignores the load-bearing significance of the

above-italicized language from Rosemond.

As I have explained, see supra at 74–75, Rosemond

unambiguously endorses “Judge Learned Hand’s”

“canonical formulation of th[e] needed state of mind” for

criminal aiding and abetting liability, under which it must be

shown that the defendant had the intent to “bring about” the

crime and “by his action to make it succeed.” Id. at 76

(citation omitted). However, in surveying the relevant

caselaw, the Court observed that in cases involving a

defendant who “actively participates in a criminal

adventure,” the defendant’s “full knowledge of the

circumstances constituting the charged offense” will suffice

to “satisf[y]” the “intent requirement.” Id. at 77 (emphasis

added). That makes sense, because if the defendant is

personally and actively involved in the actual carrying out of

the crime with full and “advance” knowledge of what is

contemplated, that defendant unquestionably intends for that

crime to be accomplished. Id. at 78. Rosemond thus

observed that, in this subset of aiding and abetting cases

involving active participation in the actual criminal conduct,

purpose would be even harder to square with § 2(b), because we have

held that § 2(b) requires proof that the defendant “ha[d] the specific

intent of bringing about the forbidden act.” United States v. Markee, 425

F.2d 1043, 1046 (9th Cir. 1970) (citation and internal quotation marks

omitted).

ALFRED V. GARLAND 77

the knowledge and intent standards amount to the same

thing: “for purposes of aiding and abetting law, a person who

actively participates in a criminal scheme knowing its extent

and character intends that scheme’s commission.” Id. at 77

(emphasis added).

But the Court immediately added a footnote cautioning

that this conclusion rested dispositively on the premise that

the defendant’s affirmative act of assistance extended

beyond the minimal conduct that is ordinarily sufficient for

aiding and abetting purposes and instead involved active

participation in the crime:

We did not deal in these cases, nor do we

here, with defendants who incidentally

facilitate a criminal venture rather than

actively participate in it. A hypothetical case

is the owner of a gun store who sells a firearm

to a criminal, knowing but not caring how the

gun will be used. We express no view about

what sort of facts, if any, would suffice to

show that such a third party has the intent

necessary to be convicted of aiding and

abetting.

Id. at 77 n.8. Rosemond thus equates knowledge and intent

for purposes of aiding and abetting law only in cases

involving active participation in the crime. The majority is

therefore wrong in contending that Rosemond equates them

across the board. 13

13

The Eleventh Circuit committed the same error in similarly—and

wrongly—concluding that Rosemond equates knowledge and intent

78 ALFRED V. GARLAND

In addition to finding no support in Rosemond, the

majority’s wholesale collapsing of knowledge and intent for

aiding and abetting purposes is plainly incorrect. The

majority’s premise that knowledge and intent are equivalent

for aiding and abetting purposes would have come as a

surprise to the drafters of the Model Penal Code, who

debated over the critical differences between those standards

in aiding and abetting law. As explained earlier, those

drafters explicitly recognized that, if knowledge were to be

adopted as the standard rather than intent, “the conduct

requirements” would have to be “more rigorously drafted”

in order to avoid giving a novel and unwarranted sweep to

aiding and abetting principles. See MODEL PENAL CODE

§ 2.06, cmt. 6(c) (emphasis added). That recognition

coheres with Rosemond’s observation that, in cases of active

participation in the crime (which is a situation in which the

“conduct requirement[]” has been more “rigorously”

articulated), there is no practical difference between

knowledge and intent. But the same cannot be said for cases

relying on the full breadth of the conduct requirement under

federal law, under which “a person’s involvement in the

crime could be not merely partial but minimal too.”

Rosemond, 572 U.S. at 73.

In Falcone, Judge Learned Hand similarly recognized

the inappropriateness of combining a less demanding mental

state of knowledge with a broad understanding of what

conduct counts as aiding and abetting. Surveying the circuit

split that had developed over the knowledge-intent issue in

cases involving criminal prosecutions against persons who

supplied materials to illegal distilleries, Judge Hand

across the board for purposes of aiding and abetting liability. Bourtzakis

v. United States Att’y Gen., 940 F.3d 616, 622–25 (11th Cir. 2019).

ALFRED V. GARLAND 79

explained as follows why the Second Circuit had come down

on the side of requiring intent:

[I]n prosecutions for conspiracy or abetting,

[the defendant’s] attitude towards the

forbidden undertaking must be more positive.

It is not enough that he does not forego a

normally lawful activity, of the fruits of which

he knows that others will make an unlawful

use; he must in some sense promote their

venture himself, make it his own, have a stake

in its outcome. The distinction is especially

important today when so many prosecutors

seek to sweep within the drag-net of

conspiracy all those who have been

associated in any degree whatever with the

main offenders. That there are opportunities

of great oppression in such a doctrine is very

plain, and it is only by circumscribing the

scope of such all comprehensive indictments

that they can be avoided. We may agree that

morally the defendants at bar should have

refused to sell to illicit distillers; but, both

morally and legally, to do so was toto coelo

different from joining with them in running

the stills.

109 F.2d at 581 (emphasis added).

The majority asserts that its across-the-board equating of

aiding and abetting liability ultimately makes no practical

difference here, because Washington law supposedly pairs

its lower knowledge requirement for aiding and abetting

with an active-participation conduct requirement. See Opin.

80 ALFRED V. GARLAND

at 45–46. That proposition seems doubtful as a matter of

Washington law, 14 but more importantly, it does nothing to

assuage the concerns raised by the majority’s broader

equating of knowledge and intent in the context of aiding and

abetting. As noted earlier, the majority’s discussion of

generic aiding and abetting entirely ignores the conduct

requirement of aiding and abetting, but it nonetheless flatly

says—based in part on Rosemond—that knowledge and

intent are “largely synonymous.” See Opin. at 31. And in

footnote 10 of its opinion, the majority makes clear that the

“blurry” line between “incidental facilitation and active

participation” makes no difference to its conclusion. See

Opin. at 46 n.10. For the reasons I have explained,

Rosemond does not support the majority’s across-the-board

equating of intent and knowledge in the context of aiding and

abetting.

14

The majority’s construction of Washington law is hard to square with

the fact that the Washington aiding and abetting statute adopts a

knowledge requirement across the board, but without any corresponding

language limiting the assistive conduct to cases of active participation.

Indeed, Washington otherwise copied the relevant Model Penal Code

language about assistive conduct and simply swapped knowledge rather

than intent as the across-the-board mental state standard. (Washington,

however, did not adopt the Model Penal Code’s option for relying on

omitting to perform a duty to prevent an offense. Compare MODEL

PENAL CODE § 2.06(3)(a)(iii) with WASH. REV. CODE

§ 9A.08.020(3)(a).) The resulting facial disparity between Washington

law and Rosemond’s description of aiding and abetting liability is clear.

See Lopez-Aguilar v. Barr, 948 F.3d 1143, 1147 (9th Cir. 2020)

(“[T]here is not a categorical match if a state statute expressly defines a

crime more broadly than the generic offense.”).

ALFRED V. GARLAND 81

b

Second, the majority wrongly limits a critical aspect of

Rosemond’s description of aiding and abetting liability

under § 2.

Although Washington law requires that the defendant act

“with knowledge that he or she was promoting or facilitating

the crime for which that individual was eventually charged,”

State v. Cronin, 14 P.3d 752, 758 (Wash. 2000) (emphasis in

original), it does not require that the defendant’s knowledge

extend to the “entire crime charged,” Rosemond, 572 U.S. at

76 (emphasis added). Thus, under Washington law, a

defendant who knowingly abets a robbery may be convicted

of armed robbery, even if he or she was unaware that the

robber would be armed. See State v. Davis, 682 P.2d 883,

884–85 (Wash. 1984). By contrast, in Rosemond, the Court

held that, under § 2, the defendant could not be convicted of

aiding and abetting the use of a gun during a drug trafficking

crime in violation of 18 U.S.C. § 924(c) unless it was shown

that he “intended the commission” of “an armed drug sale.”

572 U.S. at 78 (emphasis added).

The conflict between Davis and Rosemond on this point

is so patent that the majority was only able to eliminate it by

dramatically limiting the scope of Rosemond’s holding.

According to the majority, Rosemond’s requirement of

advance knowledge of the entire crime (such as the fact that

it was to be an armed offense) applies only to a narrow class

of “combination” crimes that are closely analogous to

§ 924(c). See Opin. at 40–42. Section 924(c) qualifies as

such a “combination” crime, in the majority’s view, because

it “is a ‘freestanding offense’ that requires proof of two

distinct acts,” whereas, “[i]n contrast, first-degree armed

robbery is an enhanced version of a base offense—simple

82 ALFRED V. GARLAND

robbery.” See Opin. at 41. Because Rosemond’s “entire

crime” rule does not apply to the mine run of cases, the

majority reasons, there is no disparity between Washington

and federal aiding and abetting law on this point. All of this

is wrong.

As an initial matter, the majority ignores the fact that,

even before Rosemond, we have long recognized and applied

the same rule that, “[t]o be convicted as an aider and abettor,

the defendant must have knowingly and intentionally aided

and abetted the principals in each essential element of the

crime.” United States v. Dinkane, 17 F.3d 1192, 1196 (9th

Cir. 1994) (emphasis added); see also United States v. Short,

493 F.2d 1170, 1172 (9th Cir. 1974) (explaining that this rule

follows from general common law principles). In Dinkane,

we applied this same entire-crime-charged rule (later

endorsed in Rosemond) to hold that, “[i]n order to convict a

defendant for armed bank robbery under an aiding and

abetting theory,” the government must “show beyond a

reasonable doubt,” inter alia, “that the defendant knew that

the principal had and intended to use a dangerous weapon

during the robbery.” 17 F.3d at 1195 (emphasis added).

That, of course, is the exact opposite of Washington aiding

and abetting law under Davis. The majority’s effort to limit

Rosemond’s “entire crime charged” rule to “combination

crimes” is thus directly contrary to Dinkane. 15

15

The majority’s only response is to assert that that “Dinkane does not

define generic law for purposes of the categorical analysis.” See Opin.

at 47 n.11. But as I have just explained, Dinkane’s rule was derived from

general common law principles, just as Rosemond’s was. And Dinkane

gives the lie to the majority’s assertion that Rosemond’s application of

those general principles was somehow “novel.” See Opin. at 42.

ALFRED V. GARLAND 83

Moreover, the majority’s posited distinction between a

“combination crime” and an “enhanced version of a base

offense” is illusory and ultimately incoherent. Section

924(c) makes it a criminal offense, inter alia, to use or carry

a firearm “during and in relation to any crime of violence or

drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A). As a

result, all of the elements of the predicate crime of violence

or drug trafficking crime must be proved, together with the

additional element that a firearm was used “during and in

relation to that predicate offense.” Id.; see also United States

v. Mendoza, 25 F.4th 730, 741–42 (9th Cir. 2022). In that

respect, a § 924(c) offense that is based on using a gun

during a bank robbery is analytically indistinguishable from

an armed bank robbery charge: both offenses require proof

of all of the elements of the predicate/base offense of bank

robbery plus an additional respective element relating to the

use of a firearm. See 18 U.S.C. §§ 924(c)(1)(A), 2113(a),

(d). In Blockburger terms, a bank robbery offense is every

bit as much of a lesser-included offense of a bank-robbery-

based § 924(c) charge as it is of an armed bank robbery

charge. See Blockburger v. United States, 284 U.S. 299, 304

(1932) (holding that the test for whether two offenses are

distinct for double jeopardy purposes is “whether each

provision requires proof of a fact which the other does not”).

The only difference is that Congress has explicitly allowed a

§ 924(c) count to be separately charged and punished in

addition to the predicate offense. See 18 U.S.C.

§ 924(c)(1)(D)(ii); see also United States v. Davis, 306 F.3d

398, 417–18 (6th Cir. 2002).

Given that, in terms of the constituent elements of the

offenses, a “combination crime” and an “enhanced version

of a base offense” have exactly the same relationship to the

underlying predicate/base offense, there is no principled

84 ALFRED V. GARLAND

basis for saying that Rosemond’s “entire crime” rule applies

to one but not the other. 572 U.S. at 76. Moreover, nothing

in Rosemond suggests that the Court was articulating a

special mental state rule that applies, as the majority would

have it, only in the context of a peculiar subset of

“combination crimes.” On the contrary, in holding that the

intent required for aiding and abetting “must go to the

specific and entire crime charged,” the Rosemond Court

described that holding as a “general rule” that was based on

longstanding common law principles. See id. at 76 & n.7.

Indeed, Rosemond cited with approval two cases that (like

Dinkane) held that, as the Court put it, “the unarmed driver

of a getaway car had the requisite intent to aid and abet

armed bank robbery if he ‘knew’ that his confederates would

use weapons in carrying out the crime.” Id. at 77 (emphasis

added) (citing United States v. Akiti, 701 F.3d 883, 887 (8th

Cir. 2012); United States v. Easter, 66 F.3d 1018, 1024 (9th

Cir. 1995)). 16

16

Moreover, although Rosemond does refer to a § 924(c) charge as a

“combination crime,” it made that observation only in discussing the

defendant’s arguments concerning the affirmative-act component of

aiding and abetting liability and not the mental state component. See 572

U.S. at 75. Rosemond had argued that the use of a firearm “is § 924(c)’s

most essential feature” and that, as a result, he could not be convicted of

aiding and abetting a § 924(c) offense unless “the requisite act” of

assistance . . . was directed at the use of the firearm.” Id. (emphasis added).

The Court rejected this effort to make the use of a gun the only relevant

offense conduct for the underlying § 924(c) charge. Because a § 924(c)

violation is a “combination crime” about using guns during drug

trafficking, the Court explained, it would be wrong to say that Ҥ 924(c) is

somehow more about using guns than selling narcotics.” Id. And because

the affirmative-act requirement of aiding and abetting is satisfied by even

minimal assistance to “one component” of the offense, Rosemond could

ALFRED V. GARLAND 85

* * *

At best, the majority’s en banc misreading of Rosemond

casts a serious cloud over the previously settled scope of

federal aiding and abetting under § 2. At worst, it arguably

overturns decades of settled law on that subject. I

respectfully dissent from that aspect of the majority’s

opinion.

IV

For the foregoing reasons, I concur in the majority’s

judgment that the petition should be denied, but I dissent

from essentially all of its reasoning.

be found to have committed the requisite act by conduct “facilitating either

the drug transaction or the firearm use (or of course both).” Id. at 74–75.

Nothing about this reasoning even remotely supports the majority’s

holding that the entire-crime mental state element of aiding and abetting

does not apply to the enhanced version of a base offense.

86 ALFRED V. GARLAND

CALLAHAN, Circuit Judge, with whom Bade, Circuit

Judge, joins, concurring in the judgment:

I vote to deny the petition. Because we need not consider

aiding and abetting liability, I concur in Sections I and II of

Judge Collins’ concurrence in part and dissent in part.

However, because by the vote of a majority of the en banc

panel aiding and abetting liability remains before us, I also

concur in subsections B and C of Section IV and Section V

of Judge Bybee’s opinion and agree that Washington’s

aiding and abetting law is not overbroad.

McKEOWN, Circuit Judge, with whom MURGUIA, Chief

Judge, and S.R. THOMAS and VANDYKE, Circuit Judges,

join, dissenting:

In yet another case, we are called on to conduct what

sounds like a simple analysis—“whether ‘[Washington’s]

statute defining the crime of conviction’ categorically fits

within the ‘generic’ federal definition of a corresponding

aggravated felony.” Moncrieffe v. Holder, 569 U.S. 184,

190 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S.

183, 186 (2007)). But that proposition is easier stated than

applied. Consequently, we have said that “perhaps no other

area of the law has demanded more of our resources.”

United States v. Aguila-Montes de Oca, 655 F.3d 915, 917

(9th Cir. 2011) (en banc) (opinion of Bybee, J.), abrogated

on other grounds by Descamps v. United States, 570 U.S.

254 (2013). Because “[t]he categorical approach requires us

to perform absurd legal gymnastics,” Lopez-Aguilar v. Barr,

948 F.3d 1143, 1149 (9th Cir. 2020) (Graber, J., concurring),

it is no surprise that scholars have asked whether this is a

ALFRED V. GARLAND 87

“categorical approach or categorical chaos.” 1 Other circuits

have observed that the categorical approach “push[es] us

into a catechism of inquiry that renders these approaches

ludicrous.” United States v. Williams, 898 F.3d 323, 337 (3d

Cir. 2018) (Roth, J., concurring). Because courts are

required to parse numerous state statutes in applying

immigration and criminal law, often leading to inconsistent

conclusions, it is no wonder “the categorical approach has

developed a reputation for crushing common sense.” United

States v. Escalante, 933 F.3d 395, 406 (5th Cir. 2019).

Notwithstanding such obvious frailties, the categorical

approach forces us into the straitjacket of slicing and dicing

the statutes, often producing “arbitrary and inequitable

results.” Mathis v. United States, 579 U.S. 500, 521 (2016)

(Kennedy, J., concurring). But since we must do so, it is

only fair to adhere to state law as state law is written, not as

we wish it to be, and to land on a generic definition that

comports with the Model Penal Code, the majority of state

statutes, and leading treatises. Because the majority takes a

path that diverges from these principles, I respectfully

dissent.

I agree with the majority that, under the categorical

approach, we must compare the state statute to the federal

generic definition of the offense. I also agree that because

Washington’s statutory scheme incorporates accomplice

1

Timothy M. Mulvaney, Note, Categorical Approach or Categorical

Chaos? A Critical Analysis of the Inconsistencies in Determining

Whether Felony DWI is a Crime of Violence for Purposes of Deportation

Under 18 U.S.C. § 16, 48 Vill. L. Rev. 697 (2003); see also Sheldon A.

Evans, Punishing Criminals for Their Conduct: A Return to Reason for

the Armed Career Criminal Act, 70 Okla. L. Rev. 623, 645 (2018)

(describing the categorical approach as “contrived” and “not based in

reality”).

88 ALFRED V. GARLAND

liability into all crimes, we must consider accomplice

liability in our categorical analysis of Washington second-

degree robbery. But I part ways with the majority in two

significant respects. First, we differ on the generic definition

of accomplice liability. A close read of the relevant sources

reveals that generic accomplice liability requires a mental

state of purpose, which is different than knowledge. Second,

we disagree on whether Washington’s second-degree

robbery statute is a categorical match with the generic theft

offense. Washington accomplice liability requires a mental

state of knowled

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