NOT RECOMMENDED FOR PUBLICATION File Name: 23a0129n.06
No. 21-5457
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 14, 2023 DEBORAH S. HUNT, Clerk ) ROGER WAYNE BATTLE, ) Petitioner-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE MIDDLE ) DISTRICT OF TENNESSEE UNITED STATES OF AMERICA, ) Respondent-Appellee. ) OPINION ) )
Before: MOORE, THAPAR, and NALBANDIAN, Circuit Judges.
MOORE, J., delivered the opinion of the court in which THAPAR and NALBANDIAN, JJ., joined. THAPAR, J. (pg. 7), delivered a separate concurring opinion.
KAREN NELSON MOORE, Circuit Judge. Roger Battle was charged with and
convicted of numerous offenses related to his leadership of a Tennessee street gang. Two of those
convictions were for committing two murders in violation of the Violent Crimes in Aid of
Racketeering (“VICAR”) statute, 18 U.S.C. § 1959(a) (“VICAR murders”). Battle was also
charged with and convicted of two counts of using or carrying a firearm during and in relation to
a “crime of violence” and “causing the death of a person through the use of a firearm” in violation
of 18 U.S.C. § 924(c) and (j). The purported “crimes of violence” underlying his § 924(c) and (j)
convictions are the two VICAR murders. After his convictions, the Supreme Court determined
that part of the definition of “crime of violence” in § 924(c) was unconstitutionally vague. United
States v. Davis, 139 S. Ct. 2319, 2336 (2019). Only the elements clause of § 924(c), which defines No. 21-5457, Battle v. United States
a crime of violence as one 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. § 924(c)(3)(A), remains valid.
Davis, 139 S. Ct. at 2336.
Battle contends that after Davis his convictions for VICAR murder no longer constitute
“crimes of violence” and therefore his convictions under § 924(c) and (j) are invalid. Appellant
Br. at 4. This appeal presents the question of whether the VICAR murders for which Battle was
convicted constitute crimes of violence. Battle argues that under the categorical approach, the
least of the conduct criminalized by § 1959(a) is a murder by omission, which he contends does
not involve a use of “physical force” and is thus not a crime of violence. A different panel of this
court was recently presented with a similar argument pertaining to a Kentucky statute and
concluded that even murders by omission involve the use of physical force. United States v.
Harrison, 54 F.4th 884, 889 (6th Cir. 2022). Even more recently, another panel was presented
with an identical argument involving § 1959(a), § 924(c) and (j), and a Tennessee statute; it
concluded that Harrison dictates the outcome. Hall v. United States, Nos. 21-5062/5288/5472,
2023 WL 1991891, at *5 (6th Cir. Feb. 14, 2023). As in Hall, Harrison controls here, and therefore
we affirm the district court’s denial of relief under 28 U.S.C. § 2255.
I. BACKGROUND
Roger Battle was the leader of a Tennessee street gang called the Vice Lords. Sentencing
Hr’g Tr. at 35 (Page ID #6082), United States v. Battle et al., No. 3:09-cr-00244-1 (M.D. Tenn.
July 12, 2012) (R. 936); Superseding Indictment at 5 (Page ID #694), United States v. Battle et al.,
No. 3:09-cr-00244-1 (R. 245). In 2010, he was indicted for a variety of offenses. He stood trial
and was convicted of fifty-seven crimes, including two murders, fourteen attempted murders, and
2 No. 21-5457, Battle v. United States
a host of other offenses. Superseding Indictment Battle App’x at 2–8 (Page ID #765–71), United
States v. Battle et al., No. 3:09-cr-00244-1 (R. 245-1); Judgment at 2–3 (Page ID #5919–20),
United States v. Battle et al., No. 3:09-cr-00244-1 (R. 924). He was sentenced to three consecutive
terms of life, plus 4,020 months. Judgment at 4 (Page ID #5921), United States v. Battle et al.,
No. 3:09-cr-00244-1 (R. 924). Battle’s direct appeal was denied. United States v. Battle, No. 12-
5873 (6th Cir. Sept. 4, 2013). In 2014, Battle filed a § 2255 motion to vacate his sentence, which
the district court denied. Mot. to Vacate at 1 (Page ID #1), Battle v. United States, 3:14-cv-01805
(M.D. Tenn. Apr. 26, 2021) (R. 1); Mem. Op. at 2, 34 (Page ID #789, 821), Battle, 3:14-cv-01805.
As is relevant to this appeal, Battle was convicted of two counts of committing murder in
aid of a racketeering enterprise in violation of 18 U.S.C. § 1959(a) for the murders of Moss Dixon
and Brandon Harris. Judgment at 2–3 (Page ID #5919-20), United States v. Battle et al., No. 3:09-
cr-00244-1 (R. 924); Superseding Indictment at 33, 58–59 (Page ID #722, 747–48), United States
v. Battle et al., No. 3:09-cr-00244-1 (R. 245). The VICAR statute provides that whoever, in aid
of racketeering, “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 . . . .” 18 U.S.C. § 1959(a). VICAR murder is conventionally charged as an
underlying state murder committed in aid of racketeering; here, the state murder was Tennessee
first-degree premeditated murder. Superseding Indictment at 33, 58–59 (Page ID #722, 747–48),
United States v. Battle et al., No. 3:09-cr-00244-1 (R. 245). The jury also convicted Battle of two
counts of using or carrying a firearm during and in relation to a “crime of violence” and using a
firearm to cause the death of a person, in violation of § 924(c) and (j). Judgment at 2–3 (Page ID
3 No. 21-5457, Battle v. United States
#5919–20), United States v. Battle et al., No. 3:09-cr-00244-1 (R. 924). The “crimes of violence”
underlying the § 924(c) and (j) convictions are the two counts of VICAR murder. Superseding
Indictment at 34, 59–60 (Page ID #723, 748–49), United States v. Battle et al., No. 3:09-cr-00244-
1 (R. 245).
After the Supreme Court declared the residual clause of § 924(c) unconstitutional in Davis,
a panel of this court granted Battle permission to file a second or successive § 2255 motion
challenging his § 924(c) and (j) convictions on the ground that his VICAR murder convictions
might no longer qualify as crimes of violence. In Re Roger Battle, No. 20-6054 (6th Cir. Nov. 25,
2020). In his § 2255 motion, Battle argued that his convictions for § 1959(a) were not crimes of
violence because it was possible to commit Tennessee first-degree premeditated murder by
omission—for example, by starving a child—and he argued that such an act does not involve the
use of physical force. Mot. to Vacate at 1, 4–5 (Page ID #960, 963–64), Battle v. United States,
No. 3:14-cv-01805 (M.D. Tenn. Apr. 26, 2021) (R. 59).
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NOT RECOMMENDED FOR PUBLICATION File Name: 23a0129n.06
No. 21-5457
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 14, 2023 DEBORAH S. HUNT, Clerk ) ROGER WAYNE BATTLE, ) Petitioner-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE MIDDLE ) DISTRICT OF TENNESSEE UNITED STATES OF AMERICA, ) Respondent-Appellee. ) OPINION ) )
Before: MOORE, THAPAR, and NALBANDIAN, Circuit Judges.
MOORE, J., delivered the opinion of the court in which THAPAR and NALBANDIAN, JJ., joined. THAPAR, J. (pg. 7), delivered a separate concurring opinion.
KAREN NELSON MOORE, Circuit Judge. Roger Battle was charged with and
convicted of numerous offenses related to his leadership of a Tennessee street gang. Two of those
convictions were for committing two murders in violation of the Violent Crimes in Aid of
Racketeering (“VICAR”) statute, 18 U.S.C. § 1959(a) (“VICAR murders”). Battle was also
charged with and convicted of two counts of using or carrying a firearm during and in relation to
a “crime of violence” and “causing the death of a person through the use of a firearm” in violation
of 18 U.S.C. § 924(c) and (j). The purported “crimes of violence” underlying his § 924(c) and (j)
convictions are the two VICAR murders. After his convictions, the Supreme Court determined
that part of the definition of “crime of violence” in § 924(c) was unconstitutionally vague. United
States v. Davis, 139 S. Ct. 2319, 2336 (2019). Only the elements clause of § 924(c), which defines No. 21-5457, Battle v. United States
a crime of violence as one 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. § 924(c)(3)(A), remains valid.
Davis, 139 S. Ct. at 2336.
Battle contends that after Davis his convictions for VICAR murder no longer constitute
“crimes of violence” and therefore his convictions under § 924(c) and (j) are invalid. Appellant
Br. at 4. This appeal presents the question of whether the VICAR murders for which Battle was
convicted constitute crimes of violence. Battle argues that under the categorical approach, the
least of the conduct criminalized by § 1959(a) is a murder by omission, which he contends does
not involve a use of “physical force” and is thus not a crime of violence. A different panel of this
court was recently presented with a similar argument pertaining to a Kentucky statute and
concluded that even murders by omission involve the use of physical force. United States v.
Harrison, 54 F.4th 884, 889 (6th Cir. 2022). Even more recently, another panel was presented
with an identical argument involving § 1959(a), § 924(c) and (j), and a Tennessee statute; it
concluded that Harrison dictates the outcome. Hall v. United States, Nos. 21-5062/5288/5472,
2023 WL 1991891, at *5 (6th Cir. Feb. 14, 2023). As in Hall, Harrison controls here, and therefore
we affirm the district court’s denial of relief under 28 U.S.C. § 2255.
I. BACKGROUND
Roger Battle was the leader of a Tennessee street gang called the Vice Lords. Sentencing
Hr’g Tr. at 35 (Page ID #6082), United States v. Battle et al., No. 3:09-cr-00244-1 (M.D. Tenn.
July 12, 2012) (R. 936); Superseding Indictment at 5 (Page ID #694), United States v. Battle et al.,
No. 3:09-cr-00244-1 (R. 245). In 2010, he was indicted for a variety of offenses. He stood trial
and was convicted of fifty-seven crimes, including two murders, fourteen attempted murders, and
2 No. 21-5457, Battle v. United States
a host of other offenses. Superseding Indictment Battle App’x at 2–8 (Page ID #765–71), United
States v. Battle et al., No. 3:09-cr-00244-1 (R. 245-1); Judgment at 2–3 (Page ID #5919–20),
United States v. Battle et al., No. 3:09-cr-00244-1 (R. 924). He was sentenced to three consecutive
terms of life, plus 4,020 months. Judgment at 4 (Page ID #5921), United States v. Battle et al.,
No. 3:09-cr-00244-1 (R. 924). Battle’s direct appeal was denied. United States v. Battle, No. 12-
5873 (6th Cir. Sept. 4, 2013). In 2014, Battle filed a § 2255 motion to vacate his sentence, which
the district court denied. Mot. to Vacate at 1 (Page ID #1), Battle v. United States, 3:14-cv-01805
(M.D. Tenn. Apr. 26, 2021) (R. 1); Mem. Op. at 2, 34 (Page ID #789, 821), Battle, 3:14-cv-01805.
As is relevant to this appeal, Battle was convicted of two counts of committing murder in
aid of a racketeering enterprise in violation of 18 U.S.C. § 1959(a) for the murders of Moss Dixon
and Brandon Harris. Judgment at 2–3 (Page ID #5919-20), United States v. Battle et al., No. 3:09-
cr-00244-1 (R. 924); Superseding Indictment at 33, 58–59 (Page ID #722, 747–48), United States
v. Battle et al., No. 3:09-cr-00244-1 (R. 245). The VICAR statute provides that whoever, in aid
of racketeering, “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 . . . .” 18 U.S.C. § 1959(a). VICAR murder is conventionally charged as an
underlying state murder committed in aid of racketeering; here, the state murder was Tennessee
first-degree premeditated murder. Superseding Indictment at 33, 58–59 (Page ID #722, 747–48),
United States v. Battle et al., No. 3:09-cr-00244-1 (R. 245). The jury also convicted Battle of two
counts of using or carrying a firearm during and in relation to a “crime of violence” and using a
firearm to cause the death of a person, in violation of § 924(c) and (j). Judgment at 2–3 (Page ID
3 No. 21-5457, Battle v. United States
#5919–20), United States v. Battle et al., No. 3:09-cr-00244-1 (R. 924). The “crimes of violence”
underlying the § 924(c) and (j) convictions are the two counts of VICAR murder. Superseding
Indictment at 34, 59–60 (Page ID #723, 748–49), United States v. Battle et al., No. 3:09-cr-00244-
1 (R. 245).
After the Supreme Court declared the residual clause of § 924(c) unconstitutional in Davis,
a panel of this court granted Battle permission to file a second or successive § 2255 motion
challenging his § 924(c) and (j) convictions on the ground that his VICAR murder convictions
might no longer qualify as crimes of violence. In Re Roger Battle, No. 20-6054 (6th Cir. Nov. 25,
2020). In his § 2255 motion, Battle argued that his convictions for § 1959(a) were not crimes of
violence because it was possible to commit Tennessee first-degree premeditated murder by
omission—for example, by starving a child—and he argued that such an act does not involve the
use of physical force. Mot. to Vacate at 1, 4–5 (Page ID #960, 963–64), Battle v. United States,
No. 3:14-cv-01805 (M.D. Tenn. Apr. 26, 2021) (R. 59). He argued that because his VICAR
murder conviction required a finding that he had committed Tennessee first-degree murder, it
could have been predicated on a crime of omission and therefore did not constitute a crime of
violence. Id. at 5–6 (Page ID #964–65). The district court denied Battle’s § 2255 motion, rejecting
his argument that murder by omission does not involve a use of physical force. Mem. Op. at 11–
15 (Page ID #1052–56), Battle v. United States, No. 3:14-cv-01805 (R. 64). We granted a
certificate of appealability on the question. Order Granting COA, Battle v. United States, No. 21-
5457 (6th Cir. Nov. 18, 2021).
4 No. 21-5457, Battle v. United States
II. ANALYSIS
Since we granted the COA, this court decided two other cases that guide the outcome here.
In Harrison, a panel of this court was presented with the question of whether it was “possible to
be found guilty of complicity to commit murder [in violation of Kentucky law] without proof of
any ‘use of physical force.’” 54 F.4th at 888–89. The Harrison court held that “murder always
requires the use of physical force,” and that this was “true even when murder is carried out by
omission rather than commission.” Id. at 889. The panel specifically discussed a situation in
which a child starves to death because a parent intentionally fails to give the child food and
concluded that such an omission would constitute murder. Id. Harrison controls our decision
here. See Wallace v. FedEx Corp., 764 F.3d 571, 583 (6th Cir. 2014) (“[O]ne panel of this court
cannot overrule another panel’s published decision.”).
This court even more recently decided an identical question to the one Battle presents in
Hall, 2023 WL 1991891, at *5. Hall, like this case, involved a conviction under 18 U.S.C.
§ 1959(a) predicated on a violation of the Tennessee first-degree premeditated murder statute, and
a related 18 U.S.C. § 924(c) and (j) conviction. The Hall panel held that Harrison controlled,
rejecting appellants’ arguments that United States v. Bass, 315 F.3d 561 (6th Cir. 2002), had
conclusively decided the issue of whether causing an injury to a child due to neglect could satisfy
the elements clause. Hall, 2023 WL 1991891, at *5. We do not see a meaningful distinction
between Hall and this case, and we therefore conclude that Tennessee first-degree premeditated
murder is a “crime of violence” within the meaning of § 924(c), and that the district court properly
denied Battle relief.
5 No. 21-5457, Battle v. United States
III. CONCLUSION
We are bound by Harrison, which held that murder always involves the use of physical
force, even when committed by omission, and therefore AFFIRM the district court’s denial of
relief in Battle’s § 2255 proceeding.
6 No. 21-5457, Battle v. United States
THAPAR, Circuit Judge, concurring. Because the categorical approach requires courts to
replace undisputedly deadly facts with imaginary ones, judges now must ask whether murder is a
crime of violence. See United States v. Harrison, 54 F.4th 884, 888–89 (6th Cir. 2022). To any
sensible person, the answer is obvious. See United States v. Scott, 990 F.3d 94, 125 (2d Cir. 2021)
(Park, J., concurring). Murder is one of the worst violent crimes. And humanity has considered it
so ever since Cain slew Abel.
Consider this case. In murder number one, Battle directed three gang members to shoot up
a house from its driveway. The intended victim wasn’t home, but his grandparents and their two
mentally disabled sons were. The gang members shot and killed the grandfather. And in murder
number two, Battle tricked a different victim into following him down a dark street. When the
victim tried to flee, Battle and another gang member shot him in cold blood.
These facts support the unremarkable conclusion that these murders—like all murders—
are violent. Harrison, 54 F.4th at 889. Yet under the categorical approach, if we can theorize a
way to commit murder without violence, then even Battle’s crimes wouldn’t count as “crimes of
violence.” The categorical approach has taken us far “off course” into the land of absurdity.
Mathis v. United States, 579 U.S. 500, 543–44 (2016) (Alito, J., dissenting). It’s past time for
Congress and the Sentencing Commission to revisit the enterprise and replace it with an approach
grounded in reality. See, e.g., United States v. Burris, 912 F.3d 386, 407–10 (6th Cir. 2019) (en
banc) (Thapar, J., concurring) (proposing an approach based on the facts of the actual crimes).