Petition for Writ of Certiorari — Carlos Emanuel Kinard, Petitioner v. United States

No. _______

IN THE

Supreme Court of the United States

CARLOS EMANUEL KINARD.,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

G. ALAN DUBOIS

FEDERAL PUBLIC DEFENDER

EASTERN DISTRICT OF NORTH CAROLINA

ERIC JOSEPH BRIGNAC

CHIEF APPELLATE ATTORNEY

Counsel of Record

EASTERN DISTRICT OF NORTH CAROLINA

150 Fayetteville St.

Suite 450

Raleigh, N.C. 27601

(919) 856-4236

eric_brignac@fd.org

Counsel for Petitioner

i

QUESTION PRESENTED

The federal VICAR assault statute criminalizes committing an assault “in

violation of the laws of any State or the United States” for purposes of joining or

advancing in a racketeering enterprise. 18 U.S.C. § 1959(a)(3).

18 U.S.C. § 924(c) criminalizes use or possession of a firearm in relation to a

“crime of violence.”

This petition presents the question: If the state or federal crime incorporated

into an 18 U.S.C. § 1959(a)(3) conviction categorially does not meet the 18 U.S.C.

§ 924(c) definition of a “crime of violence,” can the VICAR conviction itself

nonetheless meet the “crime of violence” definition? 1

This question is effectively the same question presented in the petition for

certiorari pending before this Court in Thomas v. United States, No. 23-1168.

1

ii

LIST OF ALL DIRECTLY RELATED PROCEEDINGS

United States Court of Appeals for the Fourth Circuit:

United States v. Kinard, No. 94-5800

In re: Kinard, No. 06-322

United States v. Kinard, No. 09-7742

In re: Kinard, No. 19-426

United States v. Kinard, No. 21-7118

United States District Court for the Western District of North Carolina:

United States v. Kinard, No. 3:93-CR-215-GCM-6

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

LIST OF ALL DIRECTLY RELATED PROCEEDINGS ............................................. ii

TABLE OF AUTHORITIES ......................................................................................... iv

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

STATUTORY PROVISIONS INVOLVED .................................................................... 2

STATEMENT ................................................................................................................. 3

REASONS FOR GRANTING THE PETITION ............................................................ 5

A. The Fourth Circuit holds that to determine whether an assaultbased VICAR conviction categorically involves the "use" of force, courts

do not look at the mens rea of the incorporated assault crime but

instead at the purposeful mens rea from a different element of the

VICAR statute .................................................................................................. 6

B. Thomas reveals an entrenched Circuit split ................................................ 8

C. The Fourth Circuit is wrong ...................................................................... 10

D. This Court may wish to hold this petition for appropriate action in

light of the pending petition in Thomas ......................................................... 12

iii

CONCLUSION............................................................................................................. 12

APPENDIX:

Opinion of the U.S. Court of Appeals for the Fourth Circuit .............................. 1a

Order denying petition for rehearing en banc ..................................................... 19a

iv

TABLE OF AUTHORITIES

CASES

Allen v. United States,

2023 WL 4145321 (6th Cir. 2023) ............................................................................ 10

Alvarado-Linares v. United States,

44 F.4th 1334 (11th Cir. 2022) ................................................................................... 9

Bordon v. United States,

593 U.S. 420 (2021) .................................................................................................... 8, 11

Davis v. United States,

139 S. Ct. 2319 (2019) ................................................................................................ 4, 7

In re: Kinard

4th Cir. Case. No. 19-426 (unreported) ..................................................................... 1, 4

Leocal v. Ashcroft,

543 U.S. 1 (2004) ........................................................................................................ 4

Manners v. United States,

947 F.3d 377 (6th Cir. 2020)..................................................................................... 10

Nicolson v. United States,

78 F.4th 870 (6th Cir. 2023) ..................................................................................... 10

Tisdale v. United States,

2022 WL 17496049 (6th Cir. 2022) ............................................................................ 9

United States v. Laurent,

33 F.4th 63 (2d Cir. 2022)........................................................................................... 9

United States v. Manley,

52 F.4th 143 (4th Cir. 2024) ........................................................................................ 7

United States v. Morris,

61 F.4th 311 (2d Cir. 2023)......................................................................................... 9

United States v. Pastore,

36 F.4th 423 (2d Cir. 2022)......................................................................................... 9

v

United States v. Simmons,

917 F.3d 312 (4th Cir. 2019)........................................................................................ 8

United States v. Thomas,

87 F.4th 267 (4th Cir. 2023) ...................................................................................... 4, 8, 10

United States v. Toki,

23 F.4th 1277 (10th Cir. 2022) ................................................................................... 9

United States v. White,

7 F.4th 90 (2d Cir. 2021)............................................................................................. 9

STATUTES

N.C. Gen. Stat. § 14-33 .................................................................................................. 7

18 U.S.C. § 924(c)(1) ...................................................................................................... 6

18 U.S.C. § 924(c)(3) ...................................................................................................... 6

18 U.S.C. § 924(c)(3) (1993) ........................................................................................... 6

18 U.S.C. § 924(c)(3)(A) ................................................................................................. 4-5, 7, 10

18 U.S.C. § 924(c)(3)(B) ................................................................................................ 5, 7

18 U.S.C. § 1959(a) ....................................................................................................... 5, 7

28 U.S.C. § 1254(1) ........................................................................................................ 2

28 U.S.C. § 2253(a) ........................................................................................................ 2

28 U.S.C. § 2253(c)(1)(B) ............................................................................................... 2

28 U.S.C. § 2255 ............................................................................................................. 1

28 U.S.C. § 2255(h)(2) .................................................................................................... 1

OTHER AUTHORITIES

Petition for Certiorari, Thomas v. United States,

Sup. Ct. Doc. No. 23-1168 .......................................................................................... 4, 12

Sup. Ct. R. 10(a) ............................................................................................................. 5

IN THE

Supreme Court of the United States

CARLOS EMANUEL KINARD

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Carlos Kinard respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The Fourth Circuit’s published opinion is reported at 93 F.4th 213 and is

produced in the appendix to this petition. The Fourth Circuit denied a timely

petition for rehearing which is produced in the appendix to this petition.

JURISDICTION

The Fourth Circuit granted Mr. Kinard permission to file a second or

successive Section 2255 motion under 28 U.S.C. § 2255(h)(2). See In Re: Kinard, 4th

Cir. No. 19-426. The district court had jurisdiction over that motion under 28 U.S.C.

§ 2255. The district court denied the motion on November 2, 2021 and did not grant

a Certificate of Appealability.

2

Mr. Kinard appealed, and the Fourth Circuit granted a Certificate of

Appealability “on the issue of whether assault under 18 U.S.C. § 1959(a)(3) or under

N.C. Gen. Stat. § 14-33(c)(1) is a crime of violence under 18 U.S.C. § 924(c)(3)(A).”

The Fourth Circuit had jurisdiction under 28 U.S.C. §§ 2253(a), (c)(1)(B) over the

appeal of a Section 2255 motion for which a Certificate of Appealability had been

granted.

The Fourth Circuit issued its opinion affirming the district court on February

20, 2024. The Fourth Circuit denied a timely petition for rehearing on April 19,

2024. This petition is being timely filed on July 8, 2024. This Court’s jurisdiction

rests on 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

. . . [A]ny person who, during and in relation to any crime of violence . . . for which

the person may be prosecuted in a court of the United States, uses or carries a

firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in

addition to the punishment provided for such crime of violence . . .

(i)be sentenced to a term of imprisonment of not less than 5 years;

(ii)if the firearm is brandished, be sentenced to a term of imprisonment of not

less than 7 years; and

(iii)if the firearm is discharged, be sentenced to a term of imprisonment of not

less than 10 years.

18 U.S.C. § 924(c)(1)(A).

For purposes of this subsection the term “crime of violence” means an offense that is

a felony and 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. § 924(c)(3).

3

Whoever, as consideration for the receipt of, or as consideration for a promise or

agreement to pay, anything of pecuniary value from an enterprise engaged in

racketeering activity, or for the purpose of gaining entrance to or maintaining or

increasing position in an enterprise engaged in racketeering activity, murders,

kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in

serious bodily injury upon, or threatens to commit a crime of violence against any

individual in violation of the laws of any State or the United States, or attempts or

conspires so to do, shall be punished—

(3) for assault with a dangerous weapon or assault resulting in serious bodily

injury, by imprisonment for not more than twenty years or a fine under this

title, or both;

18 U.S.C. § 1959(a)(3).

STATEMENT

In 1993, a grand jury sitting in the Western District of North Carolina

indicted Mr. Kinard and eight co-defendants on thirty-seven counts related to a

drug and racketeering conspiracy. Count 33 charged Mr. Kinard with using a

firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c). The crime

of violence at issue was Violent Crime in Aid of Racketeering (“VICAR”) in violation

of 18 U.S.C. § 1959(a)(3). The crime underlying that VICAR was North Carolina

Assault with a Dangerous or Deadly Weapon in violation of N.C. Gen. Stat. § 14-33.

The jury found Mr. Kinard guilty on twelve counts. The district court

sentenced him to life imprisonment on 7 counts, all to be served concurrently. It

sentenced him to 20 years on two counts, concurrent to the life sentences of the

other counts. It sentenced him to 20 years consecutive to every other count on Count

33 and 20 years consecutive to every other sentence on Count 34. Under a later

sentence reduction motion, the district court “reduced [Mr. Kinard’s] sentences for

4

three of the drug trafficking offenses (Counts One, Eleven, and Twelve) to 240

months’ imprisonment,” but it left the other sentences undisturbed.

In 2021, Mr. Kinard, having been granted authorization by the Fourth

Circuit, filed a pro-se second or successive motion to vacate his conviction under 28

U.S.C. § 2255. See In Re: Kinard, 4th Cir. No. 19-426 at D.E. 12. He moved the

district court to vacate his Count 33 conviction for violating Section 924(c).

Specifically, he argued that Davis v. United States, 139 S. Ct. 2319 (2019),

narrowed the Section 924(c) definition of a crime of violence, so his predicate offense

of VICAR supported by North Carolina Assault no longer met that definition.

The district court denied Mr. Kinard’s motion, holding that Mr. Kinard’s

VICAR conviction still met the post-Davis Section 924(c) crime of violence definition

because it categorically involved the use of force. See 18 U.S.C. § 924(c)(3)(A). Mr.

Kinard appealed, arguing that North Carolina Assault in violation of N.C. Gen.

Stat. § 14-33 can be committed via reckless conduct, so it does not involve the “use”

of force. See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004).

The Fourth Circuit, bound by its recent decision in United States v. Thomas,

87 F.4th 267 (4th Cir. 2023), held that VICAR’s “purpose” element requires an

intentional mens rea, so the mens rea of the incorporated crime is irrelevant. 2 The

Fourth Circuit then denied a timely petition for rehearing.

This petition follows.

A petition for certiorari in Thomas is currently pending before this Court. See

Thomas v. United States, No. 23-1168.

2

5

REASONS FOR GRANTING THE PETITION

The Fourth Circuit “has entered a decision in conflict with the decision of

another United States court of appeals on the same important matter” Sup. Ct. R.

10(a).

VICAR criminalizes committing an incorporated state or federal crime for

purposes of joining or advancing in a racketeering enterprise. 18 U.S.C. § 1959(a). It

is thus an unusual statute because it incorporates, as an element, the elements of

another crime.

If a defendant uses a firearm in connection with a VICAR offense, the United

States sometimes charges the defendant under 18 U.S.C. § 924(c), alleging that the

VICAR offense is a Section 924(c) predicate “crime of violence.” Prior to this Court’s

decision in Davis, VICAR offenses met the “crime of violence” definition under the

Section 924(c) residual clause, 18 U.S.C. § 924(c)(3)(B). Because, however, Davis

struck down the residual clause as void for vagueness, courts now need to consider

whether VICAR offenses meet the “crime of violence” definition under the elements

clause 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.” Id. § 924(c)(3)(A).

And the Circuit courts are irrevocably split on how to do that.

The Second, Tenth, and Eleventh Circuits hold that courts must look to the

elements of the incorporated state or federal crime. If those elements categorically

meet the Section 924(c) crime of violence definition, then so does the VICAR offense.

If they do not, then the VICAR offense does not. It is that simple.

6

In contrast, the Fourth Circuits holds that courts must examine the other

VICAR elements and make the crime of violence assessment based on those

elements.

The Sixth Circuit seems internally inconsistent, sometimes adopting the

Fourth Circuit’s approach and sometimes adopting the Second, Tenth, and Eleventh

Circuits’ approach.

This Court’s review is necessary to resolve this split.

A. The Fourth Circuit holds that to determine whether an assault-based VICAR

conviction categorically involves the “use” of force, courts do not look at the

mens rea of the incorporated assault crime but instead at the purposeful

mens rea from a different element of the VICAR statute.

Section 924(c) prohibits “us[ing] or carr[ying] a firearm” “in relation to a

crime of violence.” 18 U.S.C. § 924(c)(1). 3 The statute defines a “crime of violence”

as a felony offense that

(A) has as an element the use, attempted use, or threatened use of

physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force

against the person or property of another may be used in the course of

committing the offense.

Id. § 924(c)(3).

In 1993, Mr. Kinard’s Count 33 VICAR conviction was categorically a crime

of violence because it met the “residual clause” of the crime of violence definition as

a crime “that by its nature involves a substantial risk that physical force . . . may

The 1993 version of the statute applies to Mr. Kinard’s 1993 conviction, but

Congress has not materially amended the crime of violence definition since that

time, so he cites the current version of the statute in this petition. Compare 18

U.S.C. § 924(c)(3) (1993) with 18 U.S.C. § 924(c)(3).

3

7

be used.” 18 U.S.C. § 924(c)(3)(B). But in 2019, Davis struck down the Section 924(c)

residual clause as unconstitutionally vague. 139 S. Ct. at 2336.

Thus, Mr. Kinard’s Count 33 VICAR conviction remains a crime of violence if

and only if it meets the Section 924(c)(3)(A) force clause as an offense that

categorically “has as an element the use, attempted use, or threatened use of force

against the person or property of another.” 18 U.S.C. § 924(c)(3)(A).

To assess assault-based VICAR categorically, we must of course start with

the elements of the crime. To prove assault-based VICAR, the government must

show five things:

(1) that there [is] an “enterprise,” as defined in § 1959(b)(2); (2) that

the enterprise [is] engaged in “racketeering activity,” as defined in 18

U.S.C. § 1961; (3) that the defendant [] committed an assault “with a

dangerous weapon” or “resulting in serious bodily injury”; (4) that the

assault have violated state or federal law; and (5) that the assault

[was] committed for a designated pecuniary purpose or “for the

purpose of gaining entrance to or maintaining or increasing position in

[the] enterprise” [(the purpose element)].

United States v. Manley, 52 F.4th 143, 147 (4th Cir. 2024) (quoting 18 U.S.C.

§ 1959(a)). In Mr. Kinard’s particular case, the jury found that “the state or federal

law” that he violated under the Fourth Element was North Carolina Assault with a

Dangerous or Deadly Weapon in violation of N.C. Gen. Stat. § 14-33.

Before the Fourth Circuit’s decision in United States v. Thomas, assessing

Mr. Kinard’s VICAR conviction would have been easy. Because “[b]efore Thomas,

this Court’s ‘crime of violence’ analysis of predicate VICAR offenses started and

ended with an evaluation of the fourth requirement, namely, whether the

8

incorporated state or federal offense satisfied the requirements of the § 924(c) force

clause.” Pet. App. at 8a (Keenan, J. concurring).

“Had [the Fourth Circuit] followed that approach in this case, [it] would have

concluded that the incorporated offense of assault with a deadly weapon under

North Carolina law, N.C. Gen. Stat. § 14-33(c)(1), which can be committed with

‘culpable negligence,’ does not satisfy the mens rea requirement for a ‘crime of

violence’ under the § 924(c) force clause” which requires the purposeful application

of force. Pet. App. at 9a (Keenan, J. concurring) (citing United States v. Simmons,

917 F.3d 312, 321 (4th Cir. 2019), and Borden v. United States, 593 U.S. 420, 444

(2021) (plurality opinion)).

But Thomas changed everything. It held that “the final element of a

substantive VICAR assault offense, namely, the purpose element, [can] establish

the mens rea necessary for a predicate VICAR assault offense to qualify as a ‘crime

of violence’ under § 924(c).” Pet. App. at 9a (Keenan, J. concurring) (citing Thomas,

87 F.4th at 273-74). This holding “resolve[d] [Mr. Kinard’s] appeal.” Pet. App. at 6a.

B. Thomas reveals an entrenched Circuit split.

As Judge Keenan explained, no other Circuit court has adopted Thomas’s

approach. Pet App. at 9a (Keenan, J. concurring).

The Eleventh Circuit holds that in “the facts and circumstances of [a] case”

where a VICAR indictment alleges and the jury instructions mention a specific

incorporated state crime, then the categorical approach requires future courts to use

the elements of that state crime to determine if it is a crime of violence. Alvarado-

9

Linares v. United States, 44 F.4th 1334, 1342-1343 (11th Cir. 2022). The Eleventh

Circuit expressly rejected the government’s argument that it “should look only to

the generic federal definition of ‘murder’ as that term is used in the statute.” Id. at

1342. And no mention is made of VICAR’s purpose element.

The Second Circuit holds that a “substantive VICAR offense hinges on the

underlying predicate offense, . . . so [the courts] look to that predicate offense to”

find the elements for the categorial analysis. United States v. Pastore, 36 F.4th 423,

429 (2d Cir. 2022) (internal quotation omitted); see also United States v. Morris, 61

F.4th 311, 318-19 (2d Cir. 2023) (same); United States v. Laurent, 33 F.4th 63, 85

(2d Cir. 2022) (same); United States v. White, 7 F.4th 90, 104 (2d Cir. 2021) (same).

Same with the Tenth Circuit in United States v. Toki, 23 F.4th 1277, 1280

(10th Cir. 2022). There the court held that the petitioners’ VICAR convictions were

not Section 924(c) crimes of violence. Id. It reached that conclusion by categorically

examining the “Utah and Arizona statutes criminalizing assault with a dangerous

weapon” with no mention of the VICAR purpose element. Id.

The Sixth Circuit appears internally conflicted. In Tisdale v. United States, it

refused to grant a Certificate of Appealability on the VICAR mens rea issue because

in that particular case, “[a]ccording to the instructions given to the jurors, assault

with a dangerous weapon in aid of racketeering requires that the defendant acted

intentionally, not recklessly.” 2022 WL 17496049, at *2 (6th Cir. 2022) (emphasis

added). Tisdale focused on the incorporated crime’s mens rea, not the mens rea of

VICAR’s purpose element. In Allen v. United States, the Sixth Circuit used the

10

modified categorical approach to examine the Tennessee state offense incorporated

into the Defendant’s VICAR conviction to determine the proper elements to

examine. 2023 WL 4145321 at *2 (6th Cir. 2023) (unpublished).

But in Manners v. United States, 947 F.3d 377, 378-79 (6th Cir. 2020), and

Nicholson v. United States, 78 F.4th 870, 876-80 (6th Cir. 2023), the Sixth Circuit

categorically analyzes VICAR convictions seemingly without regard to the

incorporated crimes.

The Circuit split is longstanding and intractable. This Court must resolve it.

C. The Fourth Circuit is wrong.

Thomas holds that VICAR’s “purposefulness requirement applies to every

offense in § 1959(a)” Thomas, 87 F.4th at 274. And then expands that requirement

to replace the mens rea of the incorporated crime at issue. Id. This expansion

misreads VICAR.

Section 924(c)’s crime of violence definition includes crimes that have “as an

element, the use, attempted use, or threatened use of physical force against the

person or property of another.” 18 U.S.C. § 924(c)(3)(A) (emphasis added). In

Borden, this Court held that the “against the person or property of another”

language requires intentionality not simply in the decision to use force, but also in

the decision to direct it towards another. Pet. App. at 11a (Keenan, J. concurring)

(citing Borden).

Thomas’s fatal flaw post-Borden is that “the mens rea required under the

force clause thus differs from the mens rea required under the purpose element in

11

that the latter does not require a showing that the defendant knowingly directed

force at a target.” Pet. App. at 12a (Keenan, J. concurring) (emphasis in original). So

courts cannot use it to meet the Section 924(c) definition post-Borden. As Judge

Keenan’s example explains:

[C]onsider a defendant riding in a car late at night who sees a

rival gang member’s empty car parked on a deserted street in the

defendant’s gang’s territory. The defendant fires a “warning shot” out

his car’s window. As he passes the empty car, the defendant sees that

the bullet has hit and injured a rival gang member, whom the

defendant had not seen standing nearby. When the defendant returns

to his gang’s headquarters, he brags to his superiors that he shot the

rival gang member.

In that scenario, the defendant purposefully fired the gun, but

he did not purposefully hit the individual he had not seen. Instead, in

firing the gun and injuring a person, the defendant “pa[id] insufficient

attention to the potential application of force” and “consciously

disregard[ed] a substantial and unjustifiable risk.” Borden, 593 U.S. at

427, 432. In other words, the defendant in this example recklessly

applied force to an individual, rather than directing force at a target.

Nevertheless, under our precedent, the defendant likely

committed the assault “for the purpose of gaining entrance to or

maintaining or increasing position in [the] enterprise,” as required to

satisfy the purpose element of a substantive VICAR offense. In my

view, as illustrated by the above scenario, proof of a “gang-related

motive” under the purpose element does not, of itself, establish that

the defendant consciously directed any force “against” a target, as

required to qualify that offense as a § 924(c) “crime of violence.”

Borden, 593 U.S. at 430–31.

Pet. App. at 13a-14a (Keenan, J. concurring) (some internal citations omitted)

(emphasis in original).

Thus, in addition to resolving a circuit split, this Court’s review can serve to

overturn an incorrect precedent.

12

D. This Court may wish to hold this petition for appropriate action in light of

the pending petition in Thomas.

As noted above, the panel opinion in this case relies entirely on the Fourth

Circuit’s Thomas decision. A petition for certiorari in Thomas is currently pending

before this Court in case No. 23-1168. Thus, in the interest of judicial efficiency, this

Court may wish to hold this petition for consideration concurrently with or after it

considers the petition in Thomas or take whatever other action this Court believes

is appropriate.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be

granted.

Respectfully submitted,

G. ALAN DUBOIS

FEDERAL PUBLIC DEFENDER

EASTERN DISTRICT OF NORTH CAROLINA

/s/Eric J. Brignac

ERIC JOSEPH BRIGNAC

CHIEF APPELLATE ATTORNEY

Counsel of Record

EASTERN DISTRICT OF NORTH CAROLINA

150 Fayetteville St.

Suite 450

Raleigh, N.C. 27601

(919) 856-4236

eric_brignac@fd.org

JULY 8, 2024

Counsel for Petitioner