Petition for Writ of Certiorari — Antoine Lamont Johnson, Petitioner v. United States

Supreme Court briefApr 24, 2026

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In the Supreme Court of the United States

ANTOINE LAMONT JOHNSON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ of Certiorari to the United States Court

Of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

JAY L. LICHTMAN*

State Bar # 73399

137 N. Larchmont Blvd., # 538

Los Angeles, California 90004

Telephone: (213) 568-0984

Email: jaylawla@aol.com

*Counsel of Record for Petitioner

Antoine Lamont Johnson

QUESTIONS PRESENTED

1. Under a categorical approach, does the least culpable conduct needed to

prove a co-conspirator's liability for a principal's substantive violent crime

pursuant to Pinkerton v. United States, 328 U.S. 640 (1946) necessarily

satisfy the requisite "crime of violence" predicate of 18 U.S.C.

§ 924(c)(3)(A) following this Court's decision in United States v. Taylor,

596 U.S. 845 (2022)?

2. Must the "use of physical force" required to establish a predicate "crime of

violence" under 18 U.S.C. § 924(c)(3)(A) be personal to the defendant

convicted of using a firearm during that crime of violence under § 924(c),

following this Court's decision in Borden v. United States, 593 U.S. 420

(2021)?

PARTIES TO THE PROCEEDING

Pursuant to this Court's Rule 14.1(b)(i), petitioner submits that there are no

parties to the proceeding other than those named in the caption of the case and as

indicated below.

Petitioner Antoine Lamont Johnson was the habeas petitioner in the district

court and the petitioner-appellant below. Respondent United States of America

was the respondent in the district court and respondent-appellee below.

Michael Williams was a habeas petitioner in the district court and was joined

as a co-appellant in the appeal and his case was decided in a separate unpublished

disposition. If Mr. Williams files a petition for certiorari before this Court, Mr.

Johnson joins in the arguments therein.

STATEMENT OF RELATED PROCEEDINGS

The following proceedings are directly related to the instant case:

• United States v. Antoine Lamont Johnson, No. CR 05-920-RSWL,

U.S. District Court for the Central District of California, Judgment entered

on August 13, 2010.

• United States v. Antoine Lamont Johnson, U.S. Court of Appeals for the

Ninth Circuit, United States v. Johnson, 767 F.3d 815 (9th Cir. 2014),

entered on September 14, 2014.

• United States v. Antoine Lamont Johnson, No. CV 16-3419-RSWL, U.S.

District Court for the Central District of California, Judgment entered on

April 23, 2019.

• United States v. Antoine Lamont Johnson, U.S. Court of Appeals for the

Ninth Circuit, 139 F.4th 830 (9th Cir. 2025), entered on June 3, 2025.

iii

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING

STATEMENT OF RELATED PROCEEDINGS

iii

TABLE OF AUTHORITIES

PETITION FOR WRIT OF CERTIORARI AND INTRODUCTION

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS AND STATUTES

STATEMENT OF CASE

Procedural Background

II.

Factual Background

REASONS FOR GRANTING THE WRIT

CERTIORARI IS NEEDED TO REMEDY THE RECURRING INCONSISTENT

APPLICATION OF THIS COURT'S PRECEDENT, PRESENTED BY THE WIDESPREAD

PRACTICE OF AFFIRMING CONVICTIONS UNDER 18 U.S.C. § 924(c) THROUGH

PROOF OF THE STATUTE'S "CRIME OF VIOLENCE" PREDICATE BY VICARIOUS

LIABILITY UNDER PINKERTON CONSPIRACY

A. The Questions Presented Are Important, and Recurring, with Widespread

Federal Application and Impact

B. Contrary to the Ninth Circuit's Opinion, This Court's Analysis Indicates that

the Use of Physical Force Against Another Under Section 924(c)(3)(A)

Must Be The Personal Conduct of the Defendant Whose Section 924(c)

Conviction Is Predicated on that Crime of Violence

1. This Court Held in Borden That An Offense Which Requires A

Defendant's Mens Rea of Recklessness Is Not A Crime of Violence . 21

2. In Davis, This Court, In Explaining The Applicability of the Categorical

Approach, Focused on the Defendant's Conduct

3. Post-Borden Cases Finding Statutes Not Crimes of Violence

4. The Ninth Circuit's Erroneous Holding Is Contrary to this

Court's Precedents

5. Proof of the § 924(c) Predicate by Pinkerton Liability Violates

Due Process And Lessens The Prosecutor's Burden of Proof

CONCLUSION

Appendix A: Order Denying Petition for Rehearing

United States v. Johnson, 9th Cir. Case No. 19-55717

(January 26, 2026)

App. 1

Appendix B: Published Opinion

United States v. Johnson, 139 F.4th 830 (9th Cir. 2025)

(June 3, 2025)

App. 2

Appendix C: District Court Order Denying Petitioner's Motion,

Pursuant to 28 U.S.C. § 2255

United States v. Johnson, District Court Case

No. CV 16-3419-RSWL

(April 23, 2019)

App. 11

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Barrett v. United States,

607 U.S. 128 (2026)

8, 9

Borden v. United States,

593 U.S. 420 (2021)

passim

Brown v. United States,

942 F.3d 1069 (11th Cir. 2019)

Contrera v. United States,

2023 U.S. Dist. LEXIS 244314, 2023 WL 11981053 (E.D.N.Y.

Apr. 17, 2023)

Delligatti v. United States,

604 U.S. 423 (2025)

Gutierrez v. Garland,

106 F.4th 866 (9th Cir. 2024)

Hedgpeth v. Pulido,

555 U .S. 57 (2008)

Janis v. United States,

73 F.4th 628 (8th Cir. 2023)

Johnson v. United States,

559 U.S. 133 (2010)

19, 31, 32

Leocal v. Ashcroft,

543 U.S. 1 (2004)

3, 23, 32

Pinkerton v. United States,

328 U.S. 640 (1946)

passim

Rosemond v. United States,

572 U.S. 65 (2014)

Rutledge v. United States,

517 U.S. 292 (1996)

Salinas v. United States,

522 U.S. 52 (1997)

United States v. Ahemeid,

_ F.Supp. 3d _ 2026 LX 92905, 2026 WL 318211 (E.D.N.Y. Feb.

2, 2026)

26, 27

United States v. Allen,

425 F.3d 1231 (9th Cir. 2005)

United States v. Alvarez-Valenzuela,

231 F.3d 1198 (9th Cir. 2000)

United States v. Bailey,

444 U.S. 394 (1980)

United States v. Carter,

7 F.4th 1039 (11th Cir. 2021)

United States v. Davis,

588 U.S. 445 (2019)

passim

United States v. Delgado,

149 F.4th 244 (2nd Cir. 2025)

United States v. Dinkins,

928 F.3d 349 (4th Cir. 2019)

United States v. Eckford,

77 F.4th 1228 (9th Cir. 2023)

United States v. Gadson,

763 F.3d 1189 (9th Cir. 2014)

United States v. Garner,

28 F.4th 678 (5th Cir. 2022)

United States v. Gillespie,

27 F.4th 934 (4th Cir. 2022)

18, 22

vii

United States v. Gomez,

165 F.4th 1199 (9th Cir. 2026)

3, 12, 17, 25, 26

United States v. Hammons,

862 F.3d 1052 (10th Cir. 2017)

United States v. Hansen,

434 F.3d 92 (1st Cir. 2006)

United States v. Hansen,

256 F.Supp. 2d 65 (D. Mass. 2003)

22, 29

United States v. Henry,

984 F.3d 1343 (9th Cir. 2021)

4, 28-31

United States v. Hernandez-Roman,

981 F.3d 138 (1st Cir. 2020)

18, 31

United States v. Johnson,

767 F.3d 815 (9th Cir. 2014)

United States v. Keast,

152 F.4th 1039 (9th Cir. 2025)

4, 18

United States v. Linehan,

56 F.4th 693 (9th Cir. 2022)

4, 18

United States v. Luong,

627 F.3d 1306 (9th Cir. 2010)

United States v. Mangione,

2026 U.S. Dist. LEXIS 18890, 2026 LX 24069, 2026 WL 251490

(S.D.N.Y. Jan. 30, 2026)

United States v. Montgomery,

150 F.3d 983 (9th Cir. 1998)

United States v. Reed,

48 F.4th 1082 (9th Cir. 2022)

2, 17

United States v. Sjodin,

139 F.4th 1188 (10th Cir. 2025)

viii

United States v. Taylor,

596 U.S. 845 (2022)

passim

United States v. Walton,

2021 U.S. App. LEXIS 24328, 2021 WL 3615426 (9th Cir.

Aug. 16, 2021)

30, 32

United States v. Winslow,

962 F.2d 845 (9th Cir. 1992)

United States v. Woods,

14 F.4th 544 (6th Cir. 2021)

Federal Statutes

18 U.S.C. § 924

passim

18 U.S.C. § 1111

18 U.S.C. § 1951

28 U.S.C. § 1254

28 U.S.C. § 2255

8, 11, 12

28 U.S.C. § 2261

Rules

Fed. R. App. P. 28

California Statutes

Penal Code § 215

Penal Code § 245

Constitution

Amend. V

Miscellaneous Authorities

Model Penal Code § 2.02

Model Penal Code § 2.06

IN THE SUPREME COURT OF THE UNITED STATES

ANTOINE LAMONT JOHNSON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ of Certiorari to the United States Court

Of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Antoine Lamont Johnson respectfully prays that a Writ of

Certiorari issue to review the decision of the United States Court of Appeals for the

Ninth Circuit, affirming the judgment of the United States District Court for the

Central District of California, denying Petitioner's motion pursuant to 28 U.S.C.

§ 2255 challenging his underlying convictions for Conspiracy to Commit Hobbs

Act Robbery, Hobbs Act Robbery, and Brandishing a Firearm in Relation to a

Crime of Violence. As set forth in his accompanying motion, Petitioner requests

leave to proceed in forma pauperis, as he is indigent and counsel was appointed to

represent him in each federal court below.

INTRODUCTION

In United States v. Davis, 588 U. S. 445 (2019) this Court held that the

residual clause in 18 U.S.C. § 924(c)(3)(b) (a felony "by its nature involves a

substantial risk" physical force may be used) is unconstitutional. Following Davis

the "crime of violence" predicate for a § 924(c) offense can only be supplied if,

categorically, the predicate crime always involves "the use, attempted use, or

threatened use of physical force against the person or property of another."

§ 924(c)(3)(a) (elements clause). Borden v. United States, 593 U.S. 420, 424

(2021) ("If any — even the least culpable — of the acts criminalized do not entail

that kind of force, the statute of conviction does not categorically match the federal

standard and so cannot serve as [the] predicate.")

Mr. Johnson was convicted of Hobbs Act conspiracy, substantive Hobbs Act

robbery and use of a firearm during the robbery under § 924(c). Since the jury

returned a general verdict, it is unknown whether the crime of violence predicate

for § 924(c) was the conspiracy or the robbery count. As the government conceded

and the Ninth Circuit has held, conspiracy to commit Hobbs Act robbery is not a

valid § 924(c) predicate "because it does not categorically necessitate [] the

existence of a threat or attempt to use force." United States v. Reed, 48 F.4th 1082,

1088 (9th Cir. 2022). Moreover, in instructing the jury on proof of the robbery and

§ 924(c) counts below, the district court gave five Pinkerton' instructions

permitting the jury to convict the defendant of both counts based on Mr. Johnson's

involvement in the conspiracy if the use of physical force by a co-conspirator was

"foreseeable" to Mr. Johnson.

Following Davis, this and other courts have found that if, categorically, the

predicate crime did not require the defendant to use physical force against another,

the crime is not a "crime of violence" under § 924(c). First, this Court in Borden v.

United States, supra 593 U.S. at 426-433, following its decision in Leocal v.

Ashcroft, 543 U.S. 1 (2004) made clear that the "violent felony" predicate under

the elements clause of § 924(c) requires proof that the defendant act with the

higher mental state of "purpose" and "knowledge" so that if the defendant acts

with negligent or even reckless conduct, the predicate is not proven. Post-Borden

cases have confirmed that a defendant's "reckless conduct" does not satisfy the

elements clause. See, e.g. United States v. Gomez, 165 F.4th 1199, 1210 (9th Cir.

2026) (en banc) (under categorical approach assault with deadly weapon is not a

crime of violence). Indeed, under Pinkerton liability, the government is only

required to prove foreseeability, which is a negligence standard and, consequently,

I Pinkerton v. United States, 328 U.S. 640 (1946).

the defendant does not act with the mens rea required for a crime of violence

predicate.

In addition, this Court in United States v. Taylor, 596 U.S. 845 (2022) held

that attempted Hobbs Act robbery (like Hobbs Act conspiracy) is not a "crime of

violence" because it does not require that "the defendant use . . . force against

another person . . ." Id. at 852. Circuit opinions relying on Taylor have held that

statutes that do not involve the requisite use of force do not satisfy the crime of

violence predicate. See, e.g. United States v. Keast, 152 F.4th 1039, 1048, n.9 (9th

Cir. 2025) (a statute charging unlawful use of a weapon is not a crime of violence

under the Guidelines because it only "requires the government to prove the

defendant intended to . . . use a firearm against another, but does not require the

government to prove defendant actually did it"; United States v. Linehan, 56 F.4th

693, 706-07 (9th Cir. 2022) (statute criminalizing defendant's intent to murder not

a threat of physical force so not a crime of violence; collecting cases holding

same).

In rejecting the Borden and Taylor analysis the Ninth Circuit opinion below

concluded that Mr. Johnson's conviction for Hobbs Act robbery based on

Pinkerton liability is a crime of violence because the defendant is treated as a

principal. In doing so the court relied on its outdated holding in United States v.

Henry, 984 F.3d 1343 (9th Cir. 2021) which predated Borden and Taylor.

Pinkerton instructions are commonly given in the numerous armed robbery

cases throughout the federal courts. This Court should grant certiorari to address

whether a conviction of Hobbs Act robbery based on Pinkerton liability can serve

as a valid "crime of violence" predicate for a § 924(c) count. Without the Court's

guidance, the substance of its decisions in Borden and Taylor will be ignored as in

the present case, and defendants will continue to be subjected to substantial

increased sentences such as the life sentence imposed on Mr. Johnson.

OPINIONS BELOW

The published decision of the United States Court of Appeals for the Ninth

Circuit, affirming the district court's denial of Petitioner's motion pursuant to 28

U.S.C. § 2255 appears as Appendix B. The district court's order denying

Petitioner's motion pursuant to 28 U.S.C. § 2255 appears as Appendix C.

JURISDICTION

The Ninth Circuit filed its opinion affirming the district court's denial of Mr.

Johnson's § 2255 motion on June 3, 2025. App. 2 2 It denied his Petition for

Rehearing and Rehearing En Banc on January 26, 2026. App. 1. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1254(1).

2 "App" refers to the Appendix to the instant petition; "ER" refers to the

Excerpts of Record filed in the appeal; "GER" and "SER" refer to the

government's excerpt and supplemental excerpts, respectively filed in the appeal;

"AOB" refers to appellant's opening brief on appeal.

CONSTITUTIONAL PROVISIONS AND STATUTES

The Fifth Amendment of the United States Constitution provides in pertinent

part: "No person shall . . . be subject for the same offense to be twice put in

jeopardy of life or limb: . . . nor be deprived of life, liberty, or property, without

due process of law."

18 U.S.C. § 924 provides, in pertinent part:

(c)(1)(A) [A]ny person who, during and in relation to any crime of

violence or during a drug trafficking crime 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 or drug trafficking crime:

(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 . . .

(3) For purposes of this subsection the term "crime of violence" means

an offense that is a felony and -(A)

has as an element the use, attempted use, or threatened

use of physical force against the person or property of

another, or

(B)

that by its nature, involves a substantial risk that physical

force against the person or property of another may be used

in the course of committing the offense.

(j)(1) A person who, in course of a violation of subsection (c), causes the death

of a person through the use of a firearm, shall (1) If the killing is a murder

(as defined in section 1111) be punished by death or by imprisonment for

any term of years or for life; . . .

18 U.S.C. § 1951 (the Hobbs Act) provides:

(a) Whoever in any way or degree obstructs, delays, or affects

commerce or the movement of any article or commodity, in

commerce, by robbery or extortion or attempts or conspires so to

do, or commits or threatens physical violence to any person or

property in furtherance of a plan or purpose to do anything in

violation of this section shall be fined under this title or

imprisoned not more than twenty years, or both.

(b)As used in this section —

(1)The term "robbery" means the unlawful taking or obtaining

of personal property from the person or in the presence of

another, against his will, by means of actual or threatened

force, or violence, or fear of injury,, immediate or future, to his

person or property, or property in his custody or possession, or

the person or property of a relative or member of his family or

of anyone in his company at the time of the taking or obtaining.

STATEMENT OF CASE

I. Procedural Background

In 2007, the First Superseding Indictment charged then twenty-four year old

Antoine Johnson in a multi-defendant case with (1) conspiracy to interfere with

commerce by robbery in violation of 18 U.S.C. § 1951 (Count One) ("Hobbs Act

conspiracy"); (2) interference with commerce by robbery and aiding and abetting

in violation of 18 U.S.C. § 1951, 2(a) (Count Two) ("Hobbs Act robbery"); and (3)

using or carrying a firearm during and in relation to a crime of violence, causing

death in violation of 18 U.S.C. §§ 924(c), (j), (1), 2(a) (Count Three)("gun count").

6-ER-1220-34. He was later convicted at trial of all three counts. On August 13,

2010, Mr. Johnson was sentenced to life in custody — 240 months on each of

Counts One and Two, plus life imprisonment on Count Three, all to be served

consecutively. 1-ER-37-41.3

Relevant to the sentencing arguments herein, Count Three charged Mr.

Johnson with using, carrying, brandishing and discharging firearms during and in

relation to the robbery charged in Counts One and Two. 6-ER-1226. It further

charged that, in the course of violating 18 U.S.C. § 924(c), the defendants "caused

the death of Evelio Suarez, Jr., and his death constituted a murder, as defined in

Title 18, United States Code, Section 1111(a)." 6-ER-1226.4

3 In his amended § 2255 motion, Mr. Johnson argued that the consecutive

sentences for conspiracy to commit Hobbs Act robbery and substantive Hobbs Act

robbery (Counts One and Two respectively) violated his Fifth Amendment

prohibition against double jeopardsy. 1-ER-'69-171. When a defendant has

violated two different statutes, double jeopardy is implicated when both statutes

prohibit the same offense or when one offense is a lesser-included offense of the

other. Rutledge v. United States, 517 U.S. 292, 297 (1996). Accordingly,

sentences for conspiracy to commit a substantive offense and for the substantive

offense itself routinely involve imposition of concurrent, not consecutive, time for

both offenses. See, e.g. United States v. Hansen, 434 F.3d 92, 96-97 (1st Cir.

2006) (case involved killing of armored truck driver with assault rifle during

robbery).

4 After the Petition for Rehearing was filed in Mr. Johnson's case, this

Court decided Barrett v. United States, 607 U.S.128 (2026). In that case the

defendant was convicted in count five of Hobbs Act robbery. That count served as

the predicate for: count six which charged him with using a firearm during

commission of a crime of violence in violation of § 924(c)(1)(A)(i); and count

seven which charged him with thereby causing death in violation of § 924(j)(i).

Barrett, 607 U.S. at 132. This Court held in Barrett that "Congress has not

authorized convictions under both 18 U.S.C. §§ 924(c)(1)(A)(i) and (j) for one act

that violates both provisions." Id. at 149. In other words, "Congress intended

The district court instructed the jury that there were "two ways for the

government to prove [the 924(c) offense] in Count Three: first, by the defendant

committing the crimes himself; or second, pursuant to Pinkerton by being part of a

conspiracy as charged in Count One, where the use of a firearm by a co-conspirator

was reasonably foreseeable. 1-ER-64-67. Moreover, the district court's

instructions on conspiracy made clear that the offense did not require proof of the

use, attempted use, or threatened use of force as was required to constitute a crime

of violence under the gun count. 1-ER-50-56.

As to Count Two, the Hobbs Act robbery, similar to its instructions on

Count Three, the court instructed that the jury could find either that Mr. Johnson

committed the offense himself or, pursuant to Pinkerton, that "by being part of a

conspiracy as charged in Count One, during or in furtherance of which the

subsection (j) as an alternative, not a supplement, to subsection (c)(1)(A)(i)." Id. at

131. In the instant case, both sections 18 U.S.C. 924(c) and (j) were charged in

one count and the district court imposed a life sentence for convictions of both

subsections. More specifically, the court found that the offense level under the

Sentencing Guidelines was 43, "giving a range of sentence of 480 months, plus ten

years mandatory minimum as to counts one and two" and "life maximum

consecutive as to [count three]." 1-ER-26-28. To the extent this life maximum

sentence was for separate convictions of both subjections (c) and (j) which were

merged into count three the sentence was contrary to this Court's holding in

Barrett.

reasonably foreseeable crime of robbery affecting interstate commerce was

committed." 1-ER-57-60.

The jury returned a general verdict. The verdict form did not require the

jurors to specify the theory of liability for each count. 2-ER-385-87. Thus, the

form did not indicate whether the jury convicted Mr. Johnson of violating Section

924(c), (j) as a principal or under a Pinkerton theory. Similarly it did not indicate

whether it had convicted him of Hobbs Act robbery as a principal or under a

Pinkerton theory. Finally, the verdict form did not specify whether the Hobbs Act

robbery or the Hobbs Act conspiracy was the predicate basis for the § 924(c)

conviction.

Mr. Johnson appealed his convictions, raising numerous trial issues but no

claims related to the sentencing issues. The judgment was affirmed on September

12, 2014. See United States v. Johnson, 767 F.3d 815 (9th Cir. 2014).

Mr. Johnson's petition for a writ of certiorari was denied on December 15, 2015.

See Dkt. 104, United States v, Johnson, 10-50401 (9th Cir.).

On May 18, 2016, Mr. Johnson filed a timely motion to vacate his sentence

under 28 U.S.C. § 2255. 2-ER-344-51. On December 9, 2016, his newly

appointed counsel filed an amended motion on Mr. Johnson's behalf. 2-ER-130343. In the amended motion, Mr. Johnson raised arguments concerning both his

sentence and the ineffectiveness of his trial counsel.

As to the sentencing arguments pertinent here, Mr. Johnson contended that

his life sentence on the § 924(c) charge should be vacated because under a

categorical approach, neither the Hobbs Act conspiracy or Hobbs Act robbery

required the intentional use of violent force required for a crime of violence.

Moreover, assuming arguendo the robbery was a crime of violence, the § 924(c)

conviction should still be vacated because the general verdict did not require the

jury to find whether the "crime of violence" in § 924(c) was based on the now

invalid conspiracy predicate or the robbery predicate. A general verdict must be

set aside if the jury could have relied on an invalid ground. See Hedgpeth v.

Pulido, 555 U.S. 57, 58 (2008) ("A conviction based on a general verdict is subject

to challenge if the jury was instructed on alternative theories of guilt and may have

relied on an invalid one.") The possibility that the jury could have relied on the

conspiracy as the § 924(c) predicate is underscored by the fact that the court gave

five Pinkerton jury instructions which stated that Mr. Johnson could be found

guilty of both the gun count and robbery count based on his conviction of the

conspiracy count.

On April 23, 2019, the district court denied Mr. Johnson's Section 2255

motion to vacate his sentence and denied a certificate of appealability. App. 11.

Mr. Johnson appealed and filed a motion for a certificate of appealability in

the Ninth Circuit. The court granted the certificate on the issues of "whether

appellant's conviction and sentence for violating 18 U.S.C. § 924(c) must be

vacated because neither conspiracy to commit Hobbs Act robbery, nor Hobbs Act

robbery based on a Pinkerton theory of liability, is a qualifying predicate crime of

violence."

On June 3, 2025, the Ninth Circuit affirmed the district court's denial of

Mr. Johnson's § 2255 motion. App. 2.

On December 16, 2025, Mr. Johnson filed a petition for rehearing and

petition for rehearing en banc.

On January 4, 2026, Mr. Johnson filed a letter pursuant to Fed.R.App.P.

28(j) notifying the Ninth Circuit of intervening authority, United States v. Gomez,

No. 23-435 (9th Cir. Jan. 13, 2026) (en bane) which further supports Mr. Johnson's

arguments that following Borden v. United States, 593 U.S. 420 (2021) Hobbs Act

robbery under a Pinkerton theory is not a crime of violence.

On January 26, 2026, the Ninth Circuit denied the petition for rehearing and

rehearing en bane. App. 1.

II. Factual Background

On March 1, 2004 four assailants robbed an armored truck as it was making

a cash delivery to a bank in South Central Los Angeles. One of the assailants was

wearing a Rastafarian wig. During the robbery, one of the armored truck security

guards was shot and killed. The police recovered the wig in the path of the

robbers' escape and were able to collect several hairs from it.

More specifically, criminalist Nick Sanchez testified that he selected four

hairs from the wig for testing. Under DNA testing, one hair matched Mr.

Johnson's hair but it was unknown what part of the body the hair came from. Mr.

Sanchez acknowledged that DNA can remain on a hair root for many years and he

could not tell how long the hair was on the wig. 8-SER-1500-89, 1628-38.

Moreover, criminalist Michael Mastrocovo testified that hairs are "transient

evidence" and a more definitive way to determine whether a person wore the wig

was to test for a "wearer's DNA." He performed the test twice, the second time

several months before trial, but he was unable to obtain a DNA profile matching

Mr. Johnson. 8-SER-1661, 9-SER-1886-1904. Finally, criminalist Linda French

tested eight hairs from the wig: two were animal hairs, two differed in color from

Mr. Johnson's hair and two others were excluded due to appearance. None of the

heirs matched Mr. Johnson's hair. 7-SER-1511, 1523-29. To conclude, the DNA

evidence was arguably inconclusive that Mr. Johnson was the robber who actually

wore the wig at the time of the robbery.

The government also introduced eyewitness evidence that was more

exculpatory than incriminating because it showed that the robber wearing the wig

did not match Mr. Johnson's physical description of 6'1", 170 pounds. A bank

employee who stood face to face about two feet from the robber testified the

robber was between 5'6" and 5'9" and about 130-145 pounds. 12-SER-2562-71.

Also the bank assistant manager testified that the robber was probably 5'8", 135140 pounds. 1-SER-131-137. Further, the surviving armored truck driver

described the robber as 5'7"to 5'8", 135-140 pounds. 1-SER-135-137.

Accordingly, the eyewitness evidence showed that the robber, who was relatively

short and very small and thin differed significantly from Mr. Johnson who was tall

and substantially heavier than the robber.

The government also presented the testimony of gang member Jamal

Dunagan. Dunagan testified that he met Mr. Johnson the day after the robbery.

Dunagan claimed that Mr. Johnson admitted to participation in the robbery and

told Dunagan that he accidentally shot himself in the foot while escaping. 7-ER1249-50. Defense counsel impeached Dunagan's credibility on cross-examination.

Dunagan admitted to lying under oath and suborning perjury in a prior case and

routinely lying to police. 3-ER-448-65. The defense also called two medical

professionals who testified that there was no indication that Mr. Johnson had

suffered a gunshot wound to the foot. 5-ER-944-45. Moreover, one of the reasons

the district court gave in denying Mr. Johnson's ineffective assistance of counsel

claims concerning Dunagan was that Dunagan's credibility had been substantially

impeached at trial. 7-ER-1288-90.

Over strenuous defense objection, and towards the end of its case, the

government presented the hearsay testimony of Veronica Burgess that Mr. Johnson

was at a planning meeting several days before the robbery. Burgess could not be

located for trial. A law enforcement witness read Burgess' grand jury testimony

and interview statements made to law enforcement aloud to the jury. The district

court permitted the hearsay testimony because it found that Mr. Johnson caused her

unavailability by threatening her. In closing arguments, the government

emphasized Burgess's credibility. GER-1005, 1152-53; AOB 21-23.5 Moreover,

as to proof of both the robbery and gun counts the government referred to the

district court instructions that Mr. Johnson could be convicted based on his

participation in the conspiracy under a Pinkerton theory of liability. 6-ER-100205, 1152-53. Indeed, Mr. Johnson contended below that the jury could have relied

on the Burgess evidence to convict him of conspiracy and relied on the five

Pinkerton instructions, some of which were referred to by the government in

closing arguments, to convict him of robbery and the gun count without concluding

he was one of the robbers. And the general verdict did not specify whether the §

924(c) conviction was based on the conspiracy or the Hobbs Act robbery.

5 The government did not charge Randolph Jackson who reportedly lead the

planning meeting.

REASONS FOR GRANTING THE WRIT

CERTIORARI IS NEEDED TO REMEDY THE RECURRING INCONSISTENT

APPLICATION OF THIS COURT'S PRECEDENT, PRESENTED BY THE

WIDESPREAD PRACTICE OF AFFIRMING CONVICTIONS UNDER 18 U.S.C. §

924(c) THROUGH PROOF OF THE STATUTE'S "CRIME OF VIOLENCE"

PREDICATE BY VICARIOUS LIABILITY UNDER PINKERTON CONSPIRACY

A. The Questions Presented Are Important, and Recurring, with

Widespread Federal Application and Impact

Section 924(c) "threatens long prison sentences for anyone who uses a

firearm in connection with" a specifically defined violent crime. United States v.

Davis, 588 U.S. 445, 448 (2019). Prior to Davis, the predicate violent crime could

be based on the residual clause which stated that a felony "by its nature, involves a

substantial risk that physical force . . . may be used . . ." Id. After this Court's

holding in Davis, the statute's "crime of violence" predicate can only be proven by

showing that the least elements of the violent felony categorically includes the "use

of . . . physical force against the person or property of another." § 924(c)(3)(a)

(element's clause). Borden, 593 U.S. at 424 ("If any — even the least culpable — of

the acts criminalized do not entail that kind of force, the statute of conviction does

not categorically match the federal standard.")

To determine whether a predicate offense is a "crime of violence" under the

elements clause, this Court applies the categorical approach. United States v.

Taylor, 596 U.S. 845, 850 (2022). Under that approach, this Court "[a]sks whether

the offense in question 'always' involved the use, attempted use, or threatened use

of force" and if the offense can be committed without the use of such force, "it is

not a crime of violence." Delligatti v. United States, 604 U.S. 423, 426 (2025).

When applying this approach, "[t]he facts of a given case are irrelevant." Borden,

593 U.S. at 424. Instead, courts focus only on "whether the elements of the statute

of conviction meet the federal" crime of violence definition. Id. "If, when

conducting this examination, a court determines that the statute of conviction

makes unlawful any conduct less culpable than that required to constitute a crime

of violence, then there is not a categorical match." United States v. Gomez, 165

F.4th 1199, 1204 (9th Cir. 2026) (en banc).

Recent decisions of this Court, circuit courts and district courts demonstrate

that a defendant's conviction of an offense that could be committed without the

showing that the defendant used necessary force under the elements clause does

not qualify as a § 924(c) predicate.

The Ninth Circuit held that Hobbs Act conspiracy is not a "crime of

violence" "because it does not categorically necessitate [] the existence of a threat

or attempt to use force." United States v. Reed, 48 F.4th 1082, 1088 (9th Cir.

2022), citing Brown v. United States, 942 F.3d 1069, 1075 (11th Cir. 2019)

("Neither an agreement to commit a crime nor a defendant's knowledge of the

conspiratorial goal necessitates the existence of a threat or attempt to use force.")

Based on similar reasoning, this Court in Taylor held that attempted Hobbs Act

robbery (like Hobbs Act conspiracy) is not a "crime of violence" because it does

"not require that the defendant use . . . force against another person . . ." Taylor,

supra, 596 U.S. at 852. See United States v. Keast, 152 F.4th 1039, 1048, n.9 (9th

Cir. 2025) (relying on Taylor, Ninth Circuit recently held that an Oregon statute

charging unlawful use of weapon is not a crime of violence under the Guidelines

because it only "requires the government to prove the defendant intended to . . .

use a firearm against another, but it does not require the government to prove

defendant actually did it."); United States v. Linehan, 56 F.4th 693, 706-07 (9th

Cir. 2022) (relying on Taylor, and accepting the government's concession that

murder-for-hire is not a "crime of violence" because it only requires traveling with

intent to kill, which is not a threat of physical force; collecting cases holding the

same).

As is commonly the case in federal armed robbery trials, the district court

gave Pinkerton jury instructions relating to both the robbery and gun counts.

Under the instructions, Mr. Johnson could have been convicted of the Hobbs Act

robbery and the 924(c) count without his personal use of force by simply being a

member of the conspiracy as long as use of force by a co-conspirator was

foreseeable. See United States v. Gillespie, 27 F.4th 934, 942 (4th Cir. 2022)

("The defendant would still be liable [for a § 924(c) offense] even if . . . the

defendant was not present at the robbery and never touched a gun."); United States

v. Hernandez-Roman, 981 F.3d 138, 144 (1st Cir. 2020) ("[T]o convict the

defendant [of robbery] the government was under no obligation to prove that he

was physically present at the scene of the robbery."). Indeed, under Pinkerton, Mr.

Johnson could be convicted without his use of any force, certainly not the

intentional violent force required to meet the elements clause under § 924(c).6

This Court has not yet reached the specific questions raised here, namely:

(1) In light of Taylor and its progeny, under a categorical approach can a defendant

be properly convicted of a § 924(c) gun count, where the crime of violence

predicate is Hobbs Act robbery based on Pinkerton liability, even though the

defendant did not commit an intentional use of force; and (2) Related to that

inquiry is whether under this Court's decision in Borden that a defendant's

personal mental state of recklessness is not sufficient for the § 924(c) predicate, a

defendant's conviction is valid under Pinkerton liability where only a showing of

foreseeability is required. Prior decisions addressing whether Pinkerton coconspirators can be convicted under § 924(c) or similar statutes do not answer

these questions because they did not categorically evaluate the elements clause

under § 924(c) as mandated by Davis, nor did they adequately consider the later

holdings in Taylor and Borden. As explained in his Petition for Rehearing and

6 The "physical force" in § 924(c) has been construed as an intentional

violent physical force. Johnson v. United States, 559 U.S. 133, 140 (2010).

further below, the truncated analysis of the Ninth Circuit and others it relied on

upon rejecting arguments by Mr. Johnson and the defendant in Henry, 984 F.3d

1343 (9th Cir. 2021), conflicts with this Court's authority. A writ of certiorari is

required to address the erroneous application of the mandated categorical approach

in the large amount of cases proven under Pinkerton, improperly permitting 924(c)

convictions.

B. Contrary to the Ninth Circuit's Opinion, This Court's Analysis

Indicates that the Use of Physical Force Against Another Under Section

924(c)(3)(A) Must Be The Personal Conduct of the Defendant Whose

Section 924(c) Conviction Is Predicated on that Crime of Violence

The Ninth Circuit's opinion below dismisses the Taylor analysis by

concluding that Taylor did not create a rule that the government must show the

defendant personally used force in order to commit a "crime of violence" since the

government is required to show a co-conspirator used force. App. 7-8. The

Court's conclusion not only misread Taylor but is inconsistent with prior and

subsequent precedent.

Strictly speaking, Taylor held that attempted Hobbs Act robbery is not a

crime of violence because it did not require "the government to prove that the

defendant use, attempt to use or even threaten to use force . . ." 596 U.S. at 852

(emphasis added). However, assuming arguendo the Ninth Circuit is correct that

Taylor did not actually address the issue of whether under § 924(c) the intentional

use of force must be personally committed by the defendant whose § 924(c)

conviction is predicated on that violent crime, then this Court should do so here.

1. This Court Held in Borden That An Offense Which Requires A

Defendant's Mens Rea of Recklessness Is Not A Crime of Violence

The concerns expressed by this Court in Borden v. United States, 593 U.S.

420 (2021) address the defendant's mental state in deciding whether a prior felony

satisfies the elements clause for an enhancement under ACCA.7 The Court held

that "the elements clause's definition of 'violent felony' — an offense requiring the

`use of physical force against the person of another' requires proof that the

perpetrator act with the higher mental state of 'purpose' and 'knowledge.'" Id. at

433. This Court concluded in Borden that if an offense "requires only a mens rea

of recklessness, then it per se falls outside the "crime of violence" definition,

Borden at 423; or the "crime of violence" predicate under 924(c). See Taylor, 596

U.S. at 869.

Indeed, this Court's examination of key mental states in Borden placed them

all in relation to the defendant's conduct. For example, it explained that a person

"acts knowingly when 'he is aware that [a] result is practically certain to follow

7 Borden dealt with the definition of "violent felony under the Armed Career

Criminal Act ("ACCA"), which almost exactly matches the definition of "crime of

violence" in Section 924(c). See Taylor, 596 U.S. at 850 (citing cases interpreting

ACCA and holding that the definition in Section 924(c) demands a similar

inquiry).

from his conduct,' whatever his affirmative desire." Borden, 593 U.S. at 426

(citing United States v. Bailey, 444 U.S. 394, 404 (1980); Model Penal Code

§ 2.02(2)(b)(ii)). And a "person acts purposely when he 'consciously desires a

particular result, id. "whatever the likelihood of that result happening from his

conduct," Bailey, 444 U.S. at 404. Additionally, "a person acts recklessly . . .

when he consciously disregards a substantial and unjustifiable risk attached to his

conduct, in 'gross deviation' from accepted standards." And negligence, the

lowest level of culpability involves the "failure to perceive a risk." Borden, 593

U.S. at 426-427 (quoting Model Penal Code § 2.02(2)(c),(d)).

The mental states of the defendant cannot depend on a co-conspirator's

conduct when determining whether the crime of violence predicate is satisfied. As

circuit courts have articulated, under Pinkerton a defendant can be convicted of

robbery and a 924(c) count even if he was not present during the robbery and never

touched the gun as long as a co-conspirator's actions were "foreseeable." United

States v. Gillespie, supra, 27 F.4th at 942. But reasonable foreseeability is a

negligence standard. See United States v. Montgomery, 150 F.3d 983, 999 (9th

Cir. 1998) (Pinkerton applies an objectively reasonably foreseeable test); United

States v. Hansen, 256 F.Supp. 2d 65, 67 n.3 (D. Mass) (raising concerns about

Pinkerton liability as applied to a particular case; "Foreseeability is the language of

negligence law"). A defendant who acts with a mens rea of negligence does not

commit a crime of violence. See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)

(negligent or accidental conduct of a perpetrator, does not satisfy the elements

clause).

2. In Davis, This Court, In Explaining The Applicability of the Categorical

Approach, Focused on the Defendant's Conduct

Moreover, this Court's analysis in Davis likewise identifies the defendant's

conduct as the central target in finding that the categorical approach governs

section 924(c). First, Davis recognized the categorical approach was required even

in section 924(c)'s current-conviction framework, and application of that approach

focuses on what was necessarily proven about the defendant's conduct to sustain

his current convictions. 588 U.S. at 454. Second, in finding section 924(c)

required a categorical, rather than case-specific approach, based on the language of

section 924(c) and its precedent considering similar statutes, this Court treated the

crime of violence as the defendant's personal offense of conviction. Specifically,

Davis found section 924(c)'s use of "an offense that is a felony" required

categorically comparing the elements of the offense of conviction to section

924(c)(3)(A)'s elements, in the same manner section 16's equivalent term required

comparing the statutory elements of the prior "offense' of conviction." 588 U. S.

at 455 (quoting Leocal v. Ashcroft, 543 U.S. 1, 7 (2004)).

This analysis likewise requires finding the violent "offense that is a felony,"

which predicates a section 924(c) conviction, cannot be committed vicariously.

The "offense" must be the same predicate conviction the government has proven in

the instant proceedings, and that conviction should require proof that the

defendant's conduct included his personal active employment of force to qualify as

a crime of violence under section 924(c)(3)(A). See Davis, 488 U.S. at 454

("§ 924(c) prosecution focuses on the conduct with which the defendant is

currently charged"); Borden, 593 U.S. at 441 ("offense does not qualify as a

`violent felony' unless the least serious conduct it covers falls within the elements

clause").

Thus, Davis and Borden set the stage for this Court to solve the last piece of

the "use" puzzle. This Court should grant Mr. Johnson's requested writ to clarify

that section 924(c)(3)(A)'s use of force must be active, intentional, and personal to

the defendant whose section 924(c) conviction is predicated on that use of force.'

3. Post-Borden Cases Finding Statutes Not Crimes of Violence

In post-Borden cases, courts have found that the lack of a sufficient mens rea

in the subject statute renders it not a crime of violence under the elements clause of

§ 924(c).

Some courts have found, with little analysis, that the ACCA's force clause

in 924(c)(2)(B)(i) does not require personal use. See United States v. Dinkins, 928

F.3d 349, 359 (4th Cir. 2019); United States v. Hammons, 862 F.3d 1052, 1055

(10th Cir. 2017). Those cases predated Borden's analysis of that clause, as well as

Davis 's analysis of section 924(c).

In United States v. Gomez, 165 F.4th 1199 (9th Cir. 2026), (en banc) the

Ninth Circuit held that under the categorical approach an assault with a deadly

weapon under California Penal Code § 245(a)(1) is not a crime of violence. The

court explained that under the categorical approach, if the statute criminalizes any

conduct less culpable than the federal definition's requirement, "the statute is not a

categorical match" and does not qualify as a crime of violence. Id at p. 1204. The

court further emphasized that the plurality in Borden concluded that "[t]he phrase

`against another' when modifying the use of force, demands that the perpetrator

direct his action at, or target, another individual." Borden 593 U.S. at 429; Gomez

at 1207. Because Itleckless conduct is not aimed in that prescribed manner," it

does not satisfy the elements clause. Id. Further, the Gomez court explained that

Justice Thomas, concurring in the judgment, relying on another phrase in the

statute, held the "use of physical force" "has a well-understood meaning applying

only to intentional acts designed to cause harm." Gomez at 1207. Gomez

concluded that "[f]ollowing Borden, the elements clause is satisfied only by crimes

that require uses of force with a mens rea more culpable than recklessness".

Gomez at 1208.9

9 See United States v. Sjodin, 139 F.4th 1188, 1203 (10th Cir. 2025)

(holding that California assault statute, which "merely requires an intent to do the

act that results in harm," simply spans too wide on the 'culpability spectrum' to

constitute a crime of violence" under Borden.

Similarly, in Gutierrez v. Garland, 106 F.4th 866 (9th Cir. 2024), the Ninth

Circuit held that carjacking under California Penal Code § 215 is not categorically

a crime of violence. Id at 871-77. The court reasoned that even though the

carjacking statute necessarily involves the act of taking a vehicle with the intent to

deprive the owner of that vehicle, the elements clause also requires a sufficiently

culpable mens rea as to the use of force." Id at 874-77. The court explained in

Gomez that its decision in Gutierrez "demonstrates that when a state statute does

not assign a sufficiently culpable mens rea to the use of force . . . it fails to satisfy

the elements clause, creating the possibility that the defendant can be convicted for

accidental or reckless use of force. Id. at 1209 n.4.1°

In a very recent decision, the district court in United States v. Ahemeid,

F.Supp.3d , 2026 LX 92905, 2026 WL 318211 (E.D.N.Y. Feb. 2, 2026) held

that first degree murder is not a categorical crime of violence under § 924(c). The

I° Other circuits have reached similar results. See e.g. United States v.

Garner, 28 F.4th 678, 683 (5th Cir. 2022) (Louisiana aggravated assault statute,

which also criminalized "placing of another in reasonable apprehension of

receiving a battery" did not qualify under the elements clause post-Borden because

it likewise did not require defendant to intentionally threaten another with physical

force; United States v. Carter, 7 F.4th 1039, 1045 (11to Cir. 2021) (Georgia

aggravated assault statute (which criminalized "committing an act with a deadly

weapon which places another in reasonable apprehension of immediately receiving

a violent injury") failed to qualify under the elements clause post-Borden because

it did not require the defendant to intentionally threaten another with physical

force.)

court began its analysis by recognizing that under the categorical approach, if an

offense "requires only a mens rea of recklessness" then it falls outside the "crime

of violence" definitions, citing Borden, 593 U.S. at 423 and Taylor, 596 U.S. at

869; see also Contrera v. United States, 2023 U.S. Dist. LEXIS 244314, 2023 WL

11981053, at *3-4, 6 (E.D.N.Y. Apr. 17, 2023) (felony murder by arson is no

longer a valid predicate offense in the wake of Borden since it requires a mens rea

of recklessness). Ahemeid at *5, 25.

However, the court in Ahemeid also recognized that some circuit courts have

held that "crimes involving mental status between ordinary recklessness and

knowledge qualify as crimes of violence." United States v. Delgado, 149 F.4th

244, 253 (2nd Cir. 2025) (citing Janis v. United States, 73 F.4th 628, 629 (8th Cir.

2023). Ahemeid at *25-26. But, in the end, the district court held that a defendant

who commits first-degree murder with at most a mens rea of recklessness, does not

commit a categorical crime of violence. Id at *26-28.11

11 In another recent district court decision, the court held that the antistalking statutes causing death, 18 U.S.C. §§ 2261A and 2261(b)(1) are not crimes

of violence under the elements clause in part because the crimes can be committed

with a mental state not greater than recklessness as explained in Borden. United

States v. Mangione, 2026 U.S. Dist. LEXIS 18890, 2026 LX 24069, 2026 WL

251490 (S.D.N.Y. Jan. 30, 2026) at *26-51. In reaching its holding, the district

court rejected contrary decisions of district courts in other circuits. Id. at *45-46.

To conclude, a defendant's conviction for Hobbs Act robbery based on

Pinkerton can be based solely on his being a member of a conspiracy as long as

use of force by a co-conspirator was foreseeable. But the defendant's mental state

of foreseeability is no greater than negligence or even recklessness, which under

Borden is not a crime of violence under the elements clause. Like conspiracy to

commit Hobbs Act robbery and attempted Hobbs Act robbery, under Pinkerton the

government is not required to show that the "defendant use, attempt to use or even

threaten to use force . . ." Taylor, supra 596 U.S. at 852.

4. The Ninth Circuit's Erroneous Holding Is Contrary to this Court's

Precedents

Despite the holding in Taylor and its progeny, the Ninth Circuit's opinion

concluded that its prior decision in United States v. Henry, 984 F.3d 1343, 1356

(9th Cir. 2021) which held that Pinkerton liability is a crime of violence is still

good law because "the government must prove that [a conspirator] committed all

of the elements of the underlying crime of violence . . . when it relies on a

Pinkerton theory." App. 7-8. However, a finding that a defendant committed a

crime of violence based on vicarious liability is clearly not what this Court and

other courts have articulated.'

The Ninth Circuit's opinion also found that there was no error in the jury

instructions. App. 8-9. However, since Hobbs Act robbery committed under a

Pinkerton theory of liability is not a crime of violence, it would follow that the

In Henry, defendant Henry was the leader of the robbery crew and provided

guns to his co-conspirators who entered the banks. Id at 1349. In response to a

jury note the district court instructed that aiding-and-abetting and Pinkerton

liability were "separate legal principles" and the jury could base its verdict on

either principle." Id. at 1349. With respect to Pinkerton liability, the court cited

cases for the general Pinkerton rule that a defendant who did not participate in an

armed robbery can be convicted under Pinkerton if a co-conspirator did the

robbery and the robbery was foreseeable to the defendant — a very different

question from the one posed here as to whether a defendant convicted of a 924(c)

count under Pinkerton, categorically satisfies the "crimes of violence" predicate of

§ 924(c). As to the cases cited by Henry, in United States v. Luong, 627 F.3d

1306, 1308-09 (9th Cir. 2010), the main issue was whether a defendant should be

re-sentenced under § 924(c) or § 924(o), and the court mentioned that a defendant

Ninth Circuit's conclusion that the jury instructions which included five Pinkerton

instructions must be erroneous. Since under the general verdict it is unknown

whether the jury based its § 924(c) conviction on invalid predicates — conspiracy

and robbery based on Pinkerton liability — the instructions misinformed the jury.

It is noteworthy that aiding-and-abetting liability requires that the

defendant intend that the crime be committed. See Rosemond v. United States, 572

U.S. 65 (2014) (use of a gun by a co-conspirator that was reasonably foreseeable to

defendant is not sufficient to sustain conviction as an aid or abettor.) In contrast,

Pinkerton liability only requires that the crime committed by a co-conspirator be

foreseeable to defendant. But reasonable foreseeability is a negligence standard.

See United States v. Hansen, 256 F. Supp. 2d 65, 67 n.3 (D. Mass 2003).

may be convicted under a "Pinkerton theory of using or carrying a firearm in

violation of section 924(c)." In United States v. Allen, 425 F.3d 1231, 1234 (9th

Cir. 2005), the main issue was whether there was sufficient evidence that the use of

firearms during a robbery was reasonably foreseeable to defendant under

Pinkerton; see United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1203 (9th Cir.

2000) (same). Finally in United States v. Winslow, 962 F.2d 845, 852-53 (9th Cir.

1992), the main issue was whether there was sufficient evidence of whether the

defendant carried a firearm for a § 924(c) conviction. Also, some of these and

other cases cited in Henry upheld Pinkerton in § 924(c) convictions predicated on

drug trafficking crimes. See United States v. Gadson, 763 F.3d 1189, 1217 (9th

Cir. 2014) (jury could find reasonably foreseeable that a co-conspirator would use

a firearm in drug offense); Alvarez-Valenzuela; supra 231 F.3d at 1203 (same).

Such cases are irrelevant to crime of violence predicate under the elements clause.

However, the defendant in Henry had argued that the 924(c) convictions

were invalid because Pinkerton did not require the jury to find he intentionally

used force. Id. at 1355. The defense argument, in some ways, foreshadowed later

decisions in Taylor and Borden that proof of a crime of violence requires the

defendant's intent to use force. The court's response in Henry simply restating the

Pinkerton doctrine did not adequately respond to the defense arguments and is not

solid precedent in light of subsequent decisions. See United States v. Walton,

2021 U.S. App. LEXIS 24328, 2021 WL 3615426 (9th Cir. Aug. 16, 2021) at *1112) (Watford, J. concurring) (criticizing Pinkerton and suggesting this Court

should review its application to 924(c)).

Following Borden, a Hobbs Act robbery conviction obtained pursuant to

Pinkerton cannot supply the predicate crime of violence because it may have been

obtained by proof that another's use of force was merely reasonably foreseeable,

and foreseeability does not supply the defendant's active employment of force that

section 924(c)(3)(A) requires. To qualify as a crime of violence the robbery based

on Pinkerton must always require the government to prove defendant's intentional

use of violent force. See Johnson v. United States, 559 U.S. 133, 140 (2010);

United States v. Eckford, 77 F.4th 1228, 1232 (9th Cir. 2023). A robbery

conviction based on Pinkerton does not require that the defendant use or intend to

use any force.'

In addition to the outdated Henry decision in the Ninth Circuit, decisions

by other circuits have erroneously concluded that a section 924(c) conviction could

be predicated on Pinkerton regardless of who committed the violent predicate.

See, e.g. United States v. Woods, 14 F.4th 544, 554 (6th Cir. 2021) (citing §

924(c)(1)'s predicate crime as one for which defendant "may be prosecuted" in

finding defendant need not be convicted of predicate to be convicted of § 924(c)

and rejecting Pinkerton claim); United States v. Hernandez-Roman, 981 F.3d 138,

144-45 (1st Cir. 2020) (finding Pinkerton applied to predicate robbery convictions

and applying pre-Davis case finding Pinkerton applied to 924(c), without

addressing its impact on 924(c) elements clause).

5. Proof of the § 924(c) Predicate By Pinkerton Liability Violates Due

Process And Lessens The Prosecutor's Burden of Proof

In addition, permitting the government to prove the predicate and the §

924(c) conviction via Pinkerton is incompatible with principles of due process and

statutory construction. Fundamentally, substituting a theory of vicarious liability

that does not include the defendant's conduct following his agreement that a

robbery take place (and which does not supply any of section 924(c)'s elements)

ignores the categorical approach, and violates principles of due process and the

prosecution's burden of proof. United States Const. Amend V. Moreover,

Borden's "context and purpose" analysis supports the conclusion that section

924(c) was not meant to be judically-expanded to include another's foreseeable

force. As this Court reiterated, " '[u]ltimately, context determines meaning, . . .

and [h]ere we are interpreting' a phrase 'as used in defining' the term, 'violent

felony,'" which in turn requires purposeful, non-negligent force. Borden, 593 U.S.

at 437-438 (citing Johnson v. United States, supra 559 U.S. at 140; Leocal, supra

543 U.S. at 11). Convicting a person who purposefully committed non-negligent

force supports the goals of the statute. Expanding its reach to convicting members

of the conspiracy, to whom others' force was merely foreseeable, does not.

Moreover, Borden grounded its mens rea analysis on the Model Penal Code,

593 U.S. at 426; and the Model Penal Code rejected Pinkerton liability which

"permits conviction based on a mens rea of negligence." Walton, supra, at *11

(Watford, J., concurring) (citing Model Pen. Code § 2.06, Comment, p. 312 and

n.42 (1985)). Congress has not incorporated Pinkerton vicarious liability in its

criminal statutes, and section 924(c)'s enactment in 1968 further suggests Congress

did not intend for it to apply. See Salinas v. United States, 522 U.S. 52, 64-65

(1997) (relying on Model Penal Code's view of conspiracy law when interpreting

RICO statute enacted in 1970).

In the context of 924(c), under Pinkerton prosecutors have been routinely

obtaining two additional substantive-offense convictions for a defendant's

conspiracy agreement, without proving any additional conduct by that defendant or

an intent beyond negligence. Certiorari is required to prevent the government from

circumventing its burden to prove section 924(c)'s precise elements through

application of a judicially-constructed and inconsistently-applied Pinkerton theory

premised on negligence and conduct beyond the defendant's control.

CONCLUSION

For the foregoing reasons, Mr. Johnson respectfully requests that this Court

grant his petition for writ of certiorari.

Dated: April 24, 2026

Res ectfully submitted,

LICHTMAN

Counsel of Record for Petitioner

Antoine Lamont Johnson

Johnson.petcert.4.26

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.