Rojas-Tapia v. United States

130 F.4th 241

• Court: Court of Appeals for the First Circuit
• Decided: March 3, 2025
• Docket: 20-1735
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 20-1514, 20-1735 JOSÉ M. ROJAS-TAPIA,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge] [Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Barron, Chief Judge, Montecalvo and Aframe, Circuit Judges.

Robert Fitzgerald, Assistant Federal Public Defender with whom Rachel Brill, Federal Public Defender, District of Puerto Rico, Héctor L. Ramos-Vega, Interim Federal Public Defender, District of Puerto Rico, Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Division, and Kevin E. Lerman, Research and Writing Attorney, were on brief, for Appellant. Joshua K. Handell, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, were on brief, for Appellee. March 3, 2025 BARRON, Chief Judge. José M. Rojas-Tapia appeals the

denial of his 28 U.S.C. § 2255 petitions for post-conviction

relief, which he filed in the District of Puerto Rico. The first

petition challenges his convictions under 18 U.S.C. § 924(c),

while the second petition challenges the application of the Armed

Career Criminal Act ("ACCA") to his sentences for his two

convictions under 18 U.S.C. § 922(g). We affirm.

I.

A.

Rojas's convictions and sentences stem from his October

2000 guilty pleas to charges set forth in two indictments that

were handed up in the District Court of Puerto Rico in December

1999 and March 2000. The first indictment contained six counts,

each of which pertained to Rojas's alleged participation in a

robbery of what his plea agreement referred to as the Levittown

Post Office. The second indictment contained five counts, each of

which pertained to Rojas's alleged participation in a robbery of

what his plea agreement referred to as the Sabana Seca Post Office.

As relevant here, the first indictment charged Rojas

with one count of "aiding and abetting" an assault of employees of

the Levittown Postal Service with the intent to rob them of U.S.

currency and other property of the United States, and in so doing,

placing those employees' lives in jeopardy by the use of dangerous

weapons. The count alleged that this conduct was in violation of

- 3 - the federal mail robbery statute, 18 U.S.C. § 2114(a), and 18

U.S.C. § 2, which states that "[w]hoever commits an offense against

the United States or aids, abets, counsels, commands, induces or

procures its commission, is punishable as a principal," 18 U.S.C.

§ 2(a).

Rojas was also charged in this indictment with two counts

of violating § 924(c), which criminalizes the carrying or use of

a firearm during a "crime of violence." 18 U.S.C. § 924(c). These

counts identified the Levittown robbery alleged in Count One as

the predicate "crime of violence."

Also relevant to this appeal is the fourth count of this

indictment, which charged Rojas with violating § 922(g) by (during

the federal mail robbery alleged in Count One) possessing a

firearm. Section 922(g) provides, as relevant here, that it shall

be unlawful for any person "who has been convicted in any court

of[] a crime punishable by imprisonment for a term exceeding one

year" to "possess in or affecting commerce, any firearm or

ammunition." 18 U.S.C. § 922(g).1

The second indictment charged Rojas with one count of

"aiding and abetting" an assault of employees of the Sabana Seca

Post Office with the intent to rob them of U.S. currency and other

1 The other counts in this indictment are not relevant to this appeal. They charged Rojas with, during the course of the robbery, possessing a firearm in a federal facility and attempting to kill a police officer, in violation of 18 U.S.C. §§ 930(b)-(c) and 2.

- 4 - property of the United States, and in so doing, putting those

employees' lives in jeopardy by the use of dangerous weapons.

Here, too, the charge alleged that Rojas had engaged in the conduct

in violation of 18 U.S.C. § 2114(a) and 18 U.S.C. § 2. In

addition, Rojas was charged in this indictment with two counts of

using or carrying a firearm during the robbery, in violation of

§ 924(c). Each of the § 924(c) counts identified the predicate

"crime of violence" as the Sabana Seca robbery charged in Count

One of that same indictment. And, as relevant to this appeal,

Rojas also was charged in this indictment with one count of

violating § 922(g), based on his having been in possession of a

firearm during the Sabana Seca robbery while having previously

committed three felonies.2

B.

Rojas pleaded guilty to the six counts related to the

alleged robbery of the Levittown Post Office and the five counts

related to the alleged robbery of the Sabana Seca Post Office.

The resulting eleven convictions stemming from the two indictments

were then consolidated for purposes of sentencing. At sentencing,

Rojas received concurrent sentences for the convictions on the

counts contained in the two indictments that were based on the

2 This indictment also charged Rojas with one count not relevant to his appeal, which was for possessing a firearm in a federal facility during the robbery, in violation of 18 U.S.C. §§ 930(b) and 2.

- 5 - same statutory sections. But Rojas successfully appealed his

sentences for his convictions and was resentenced on January 19,

2005. At his resentencing, he received a combined prison sentence

of 262 months for all his convictions other than his § 924(c)

convictions. He also received a combined, consecutive 420-month

prison sentence for his § 924(c) convictions. Thus, in total, he

received a prison sentence of 682 months.

In being sentenced for his § 922(g) convictions, Rojas

was subjected to § 924(e) of the ACCA. The ACCA provides that an

individual convicted under § 922(g) who also "has three previous

convictions . . . for a violent felony or a serious drug offense,

or both, committed on occasions different from one

another, . . . shall be fined under this title and imprisoned not

less than fifteen years." 18 U.S.C. § 924(e)(1). The definition

of "violent felony" for the purposes of the ACCA encompasses

offenses that are covered by its force clause, which reaches a

felony offense that "has as an element the use, attempted use, or

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

Id. § 924(e)(2)(B)(i). The definition also encompasses crimes

that "involve[] use of explosives," a list of enumerated offenses

("burglary, arson, or extortion"), and crimes that would

constitute "violent felon[ies]" under the residual clause. Id.

§ 924(e)(2)(B)(ii). That latter clause defines a "violent felony"

to include felonies that "otherwise involve[] conduct that

- 6 - presents a serious potential risk of physical injury to another."

Id. The decision to subject Rojas to the enhanced sentence under

ACCA was based on his having three prior felonies at the time of

his possession of the firearm in question.

C.

Rojas did not challenge any of his convictions on direct

appeal. Nor did he file a direct appeal from the sentences that

he received when he was re-sentenced. In 2017, however, he filed

the two habeas petitions in the District of Puerto Rico under 28

U.S.C. § 2255 that are before us in this appeal and that take aim

at many of those convictions as well as his sentences.

One petition challenged the § 924(c) convictions and

ACCA-based sentence stemming from the robbery of the Levittown

Postal Service employees ("Levittown Petition"). The other

petition challenged the § 924(c) convictions and ACCA-based

sentence stemming from the robbery of the Sabana Seca Postal

Service employees ("Sabana Seca Petition").

Judge Daniel R. Domínguez was assigned to the Levittown

Petition, while Judge Juan M. Pérez-Giménez was assigned to the

Sabana Seca Petition. In each petition, Rojas argued that, under

Johnson v. United States, 576 U.S. 591 (2015) (Johnson II), his

§ 924(c) convictions could not stand, because his statutory

offense of conviction for aiding and abetting the violation of

§ 2114(a) does not qualify as a "crime of violence."

- 7 - Section 924(c) defines a "crime of violence" to include

any felony 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), although the Supreme Court of the

United States has clarified that this force must be "violent force

capable of causing physical pain or injury." United States v.

Faust, 853 F.3d 39, 50-51 (1st Cir. 2017) (citing Johnson v. United

States, 559 U.S. 133, 140 (2010) (Johnson I)). In addition, the

definition of a "crime of violence" for purposes of § 924(c) has

a residual clause, which defines as a "crime of violence" any

felony "that by its nature[] involves a substantial risk that

physical force against the person or property of another may be

used in the course of committing the offense." 18 U.S.C.

§ 924(c)(3)(B).

In contending that his § 924(c) convictions must be

overturned under Johnson II, Rojas pointed out that the Supreme

Court held in that case that the residual clause of the ACCA's

definition of a "violent felony," which defined such an offense to

include "any felony that 'involves conduct that presents a serious

potential risk of physical injury to another,'" was

unconstitutionally vague. 576 U.S. at 593 (quoting 18 U.S.C.

§ 924(e)(2)(B)). Rojas argued that Johnson II's logic extended to

the parallel residual clause in § 924(c), notwithstanding that

§ 924(c)'s residual clause defines what qualifies as a "crime of

- 8 - violence" rather than what qualifies as a "violent felony." Rojas

thus contended based on Johnson II that a predicate offense for a

§ 924(c) conviction would qualify as a "crime of violence" only if

it were encompassed by § 924(c)'s force clause. He then further

argued that § 924(c)'s force clause encompassed neither of the

federal mail robbery offenses of which he had been convicted,

notwithstanding that each of his convictions for those offenses

was alleged to be the respective "crime of violence" for each of

his § 924(c) convictions.

In addition to challenging his § 924(c) convictions

based on Johnson II, Rojas's petitions also challenged his

sentences for his convictions under § 922(g) on the ground that,

given Johnson II, the sentences had been improperly enhanced based

on the ACCA. Rojas rested his petitions as to those sentences on

the ground that he had not previously been convicted of three

predicate "violent felonies" or "serious drug offenses," given

that Johnson II had rendered unconstitutional the residual clause

of the ACCA's definition of a violent felony. Rojas argued in

this regard that his predicate convictions under Puerto Rico law

for robbery, robbery of a vehicle, kidnapping, escape, murder, and

attempted murder no longer qualified as violent felonies because

they did not meet the stringent requirements of the ACCA's force

clause.

- 9 - Each of Rojas's § 2255 petitions for habeas relief was

denied in a separate order, which was accompanied by a separate

opinion. The analysis in each of these opinions, however, was

quite similar.

Each opinion noted that, while the habeas petition at

issue was pending, the Supreme Court had held in United States v.

Davis, 588 U.S. 445 (2019), that the logic of Johnson II extended

to the definition of "crime of violence" that applies to § 924(c).

Nonetheless, each opinion concluded that the federal mail robbery

offense underlying the § 924(c) convictions at issue in the

relevant habeas petition qualified as a "crime of violence" under

the force clause of the definition of a "crime of violence" for

purposes of § 924(c).

As to the claims set forth in each petition that

concerned the relevant ACCA-enhanced sentence, Judge Domínguez,

who heard the Levittown Petition, explained that, under United

States v. Báez-Martinez, 950 F.3d 119 (1st Cir. 2020), Rojas's

prior convictions for attempted murder and second-degree murder

under Puerto Rico law both qualified as "violent felon[ies]" under

the force clause of the ACCA's definition of a "violent felony."

Judge Pérez-Giménez, who heard the Sabana Seca Petition, reached

the same conclusion based on a previous District of Puerto Rico

opinion that he had written.

- 10 - The judges each also ruled that Rojas's convictions for

armed carjacking under Puerto Rico law qualified as convictions

for "violent felon[ies]" under the force clause of the ACCA's

definition of a "violent felony." The judges then each also held

that those predicate Puerto Rico law convictions -- in conjunction

with Rojas's previous conviction for a "serious drug

offense" -- supported his ACCA-enhanced sentence.

In their respective orders denying Rojas's petitions,

each judge expressly declined to issue a Certificate of

Appealability ("COA") on any of Rojas's claims. Rojas nonetheless

appealed the denials of his request for a COA to this Court, and

the appeals were consolidated. Rojas then filed a single request

for a COA on each of the claims that he presented below in his two

petitions. This Court granted the request with respect to his

claims that his § 924(c) convictions cannot stand under Davis and

Johnson II because his convictions for federal mail robbery under

§ 2114(a) do not qualify as convictions for a "crime of violence."

However, this Court denied his request for a COA with respect to

his remaining claims.

II.

"When reviewing a district court's denial of a § 2255

petition, we review the district court's legal conclusions de novo

and any factual findings for clear error." Lassend v. United

States, 898 F.3d 115, 122 (1st Cir. 2018). "The determination of

- 11 - whether a prior conviction qualifies as a predicate

offense . . . is a legal question subject to de novo review."

United States v. Pakala, 568 F.3d 47, 54 (1st Cir. 2009) (emphasis

omitted). As to the question of what offense the defendant was

convicted of committing, Rojas seems to contend that this question,

too, is a legal question and thus one that is subject to de novo

review. This argument is foreclosed, however, by the Supreme

Court's decision in Pereida v. Wilkinson, which held that the

question of "what crime the defendant was convicted of committing,"

for the purposes of applying the categorical approach, see infra

Section III, is "a question of fact." 592 U.S. 224, 238 (2021).

III.

We start with Rojas's challenge to the denial of his

petitions challenging his § 924(c) convictions. Because of the

Supreme Court's decision in Davis, this challenge has merit so

long as Rojas can show that the predicate mail robbery conviction

under § 2114(a) for each of his § 924(c) convictions was not for

an offense that has "as an element the use, attempted use, or

threatened use of physical force against the person or property of

another." 18 U.S.C. § 924(c)(3). If he can make that showing,

then he will have shown that the government has not proved that he

used a firearm during the commission of a "crime of violence" with

respect to the underlying § 924(c) charges.

- 12 - To decide whether Rojas has made the required showing

about his federal mail robbery convictions, we apply what is known

as the "categorical approach." Mathis v. United States, 579 U.S.

500, 504 (2016). We thus must assess the elements of the offense

that is claimed to qualify as the "crime of violence" for a

defendant's § 924(c) conviction to see if those elements are

encompassed within the force clause of § 924(c)'s definition of a

"crime of violence." Id. (explaining that "the categorical

approach" "focus[es] solely" on the elements of a crime, which, at

a plea hearing, "are what the defendant necessarily admits when he

pleads guilty"). In other words, we must focus on the elements of

the claimed predicate offense rather than on the conduct that the

defendant engaged in to commit that offense. See United States v.

Taylor, 848 F.3d 476, 491 (1st Cir. 2017).

Here, the offense that is claimed to be the predicate

"crime of violence" is the offense of federal mail robbery under

§ 2114(a), of which Rojas was convicted as an aider and abettor

under 18 U.S.C. § 2. Accordingly, we must decide whether Rojas is

right that neither of the federal mail robbery offenses under

§ 2114(a) to which he pleaded guilty has "as an element the use of

force or threatened use of force," because, given Davis, if neither

does, then neither of his convictions for those offenses can serve

as the predicate conviction for a "crime of violence" under

§ 924(c). As we will explain, however, we conclude that Rojas is

- 13 - not right on that score, because his convictions under § 2114(a)

were for offenses that have such an element, at least given our

existing precedent.

Section 2114(a)3 provides as follows:

(a) Assault.--A person who assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs or attempts to rob any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned not more than twenty-five years. 18 U.S.C. § 2114(a).

The parties agree that § 2114(a) does not set forth a

single offense, as they agree that it is divisible into the

separate offenses of simple mail robbery and aggravated mail

robbery. See Taylor, 848 F.3d at 492 (explaining that statutes

which list multiple elements in the alternative are "divisible"

3 Section 2114 contains a second provision, subsection (b), criminalizing "[r]eceipt, possession, concealment, or disposal of property" obtained in violation of § 2114(a). 18 U.S.C. § 2114(b). Though Rojas's plea agreement and indictments only identify his predicates as violations of § 2114 without specifying a particular subsection of that statute, neither party contends that subsection (b) formed the basis of Rojas's § 924(c) convictions.

- 14 - into separate offenses under the categorical approach, meaning

that some forms of the offense may have as an element the requisite

force while other forms of the offense may not). The parties

further agree that the elements of the offense (or potentially,

offenses) of simple mail robbery under § 2114(a) are set forth

before the semicolon in the text quoted above. And the parties

agree that the portion of the text following the semicolon that

refers to wounding or placing a postal worker's life in jeopardy

by the use of a dangerous weapon does not describe the offense of

"simple mail robbery" but instead sets forth the separate offense

of aggravated mail robbery. However, in the government's view,

the text following the semicolon in § 2114(a) sets forth a

"wounding" offense of aggravated mail robbery that is a separate

and distinct offense from the "placing life in jeopardy" offense

of aggravated mail robbery. Moreover, the government further

contends that the text following the semicolon that describes the

repeated commission of simple mail robbery sets forth a sentencing

factor rather than a distinct offense in its own right.

The parties therefore are in agreement that the offense

(or offenses) of simple mail robbery carries (or carry) a maximum

sentence of ten years imprisonment and requires (or require) proof

that the defendant "assaults any person having lawful charge,

control, or custody of any mail matter or of any money or other

property of the United States, with intent to rob, steal, or

- 15 - purloin such mail matter, money, or other property of the United

States, or robs or attempts to rob any such person of mail matter,

or of any money, or other property of the United States." 18

U.S.C. § 2114(a). As a result of this shared understanding, the

parties also agree that the simple mail robbery offense (or

offenses) that § 2114(a) sets forth need not be proved by showing

that the defendant, "in effecting or attempting to effect [a simple

mail robbery]," "wounds the person having custody of such mail,

money, or other property of the United States, or puts his life in

jeopardy by the use of a dangerous weapon." And the parties agree,

too, that the offense or offenses of simple mail robbery need not

be proved by showing that the defendant has committed "a subsequent

[simple mail robbery]."

At this point, though, the parties' arguments begin to

diverge in ways that are relevant to this appeal. We therefore

turn to their points of disagreement.

For starters, Rojas contends -- contrary to the

government -- that it is not clear whether his conviction for each

federal mail robbery offense under § 2114(a) was for an offense of

simple mail robbery under that provision or for an offense of

aggravated mail robbery under that provision. As a result, Rojas

argues that we must proceed on the understanding that each of his

convictions for federal mail robbery under § 2114(a) was for the

- 16 - offense of simple mail robbery, which he contends the force clause

in § 924(c)'s definition of a "crime of violence" does not

encompass because the offense of simple mail robbery under

§ 2114(a) does not have as an element the requisite use of force.

He thus contends that his petitions must be granted as to his

§ 924(c) convictions for this reason alone.

We agree with the government, however, that the record

contradicts this assertion about the nature of his underlying

§ 2114(a) convictions. The record makes clear that Rojas pleaded

guilty to two counts under § 2114(a) -- one in each separate

indictment -- and that each count was for assaulting postal

employees. Moreover, his plea agreements make clear that the

maximum term of imprisonment Rojas faced for each of his § 2114(a)

convictions was twenty-five years. Given that the offense of

simple mail robbery for which, in making this argument, Rojas

contends he was convicted carries a maximum penalty of ten years

in prison, it is clear that Rojas's predicate mail robbery offenses

under § 2114(a) were necessarily grounded in the text of § 2114(a)

that follows the semicolon in that statute, rather than any offense

of simple robbery that is set forth before the semicolon.4

4Insofar as Rojas appears to contend in his reply brief that it is not clear whether the predicate crimes of violence underlying his § 924(c) convictions -- "to wit: assaulting employees of the [Levittown and Sabana Seca] Postal Service[s]" -- are the § 2114(a) convictions to which he also pleaded guilty, that argument is waived. See Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d - 17 - C.

We also see no merit in Rojas's fallback ground for

challenging his § 924(c) convictions. Here, he contends that

aggravated mail robbery is a single offense that may be committed

by various means, one of which is by repeatedly committing simple

mail robbery. And, he further contends, the repeated commission

of simple mail robbery does not require force as defined by

§ 924(c)'s force clause. Thus, Rojas argues that his § 924(c)

convictions cannot stand even if he had been convicted of

aggravated rather than simple mail robbery under § 2114(a),

because even aggravated mail robbery does not qualify as a "crime

of violence" after Davis. But, even accepting Rojas's contention

that simple mail robbery is not a "crime of violence," this ground

for challenge still fails, because it rests on the mistaken premise

that aggravated mail robbery under § 2114(a) is a single offense,

of which the repeated commission of simple mail robbery is but one

means of committing it.

As the Supreme Court has explained, for a statute's

alternatively listed items to be means of committing a single

offense, rather than elements that specify distinct offenses, the

alternatives must "enumerate[] various factual means of committing

25, 29 (1st Cir. 2015) ("Our precedent is clear: we do not consider arguments for reversing a decision of a district court when the argument is not raised in a party's opening brief.").

- 18 - a single element." Mathis, 579 U.S. at 506. For example, a

statute that has as an element the use of a "dangerous weapon"

might also list a "knife, gun, bat, or similar weapon" as factual

means illustrating "diverse means of satisfying [that] single

element . . . ." See id. So, too, might a statute list "any

building, structure, [or] land, water, or air vehicle" as factual

means of satisfying a single "locational element." See id. at 507

(alteration in original) (emphasis omitted) (first quoting Iowa

Code § 702.12 (2013)); see also id. at 518 (citing favorably to

United States v. Howard, 742 F.3d 1334, 1348 (11th Cir. 2014), for

its holding that a statute that listed "any vehicle, aircraft or

watercraft used for the lodging of persons or carrying on business

therein" and "any railroad box car or other rail equipment or

trailer or tractor trailer or combination thereof" merely provided

"non-exhaustive examples of items that qualify as a 'structure'

and thus count as a 'building'" for the purpose of defining the

element of "building" in an Alabama burglary statute).

In arguing that the repeated commission of simple mail

robbery is just a means of committing aggravated mail

robbery -- and so not a distinct offense in its own right -- Rojas

points out that this Court has never expressly held that a jury

would have to find that a defendant wounded a mail carrier, as

opposed to placing that mail carrier's life in jeopardy, or vice

versa, to convict that defendant for aggravated mail robbery. Cf.

- 19 - id. at 504, 506 (holding that, "[a]t a trial" elements are "what

the jury must find beyond a reasonable doubt to convict," but that,

when a statutory list "merely specifies diverse means of satisfying

a single element," a jury need not unanimously agree on which means

the defendant used to commit that element). He also notes that

§ 2114(a) does not establish distinct punishments for the three

alternatives listed following § 2114(a)'s semicolon -- wounding,

placing a victim's life in jeopardy, and repeatedly committing

simple mail robbery. Cf. id. at 518 ("If statutory alternatives

carry different punishments, then under Apprendi[ v. New Jersey,

530 U.S. 466 (2000)] they must be elements."). Finally, he

contends that the relevant documents in the proceedings below do

not identify any of the three alternatives to the exclusion of the

others. Cf. id. at 519 ("[A]n indictment and jury instructions

could indicate, by referencing one alternative term to the

exclusion of all others, that the statute contains a list of

elements.").

We agree, however, with the government -- and all other

circuits to have addressed the issue -- that § 2114(a) does not

set forth the offense of aggravated mail robbery as a single

offense with means that include the repeated commission of simple

mail robbery. See, e.g., United States v. Buck, 23 F.4th 919, 925

(9th Cir. 2022); Pannell v. United States, 115 F.4th 154, 160-61

(2d Cir. 2024). Notably, each of the examples that the Supreme

- 20 - Court has given for when alternatives in a criminal statute are

merely means of committing the offense rather than distinct

offenses is an example that sets forth an element specifying a

type of conduct and then factual means of carrying out that

conduct. However, there is no single element referenced in

§ 2114(a) of which "wound[ing]," "put[ting] [a mail carrier's]

life in jeopardy by the use of a dangerous weapon," and committing

"a subsequent [simple mail robbery] offense," 18 U.S.C. § 2114(a),

would be just means.

In that respect, § 2114(a) is like the provision that

was at issue in United States v. McCants, 952 F.3d 416, 426 (3d

Cir. 2020). There, the Third Circuit rejected a similar argument

that a set of statutory alternatives were means, rather than

elements. In doing so, the Third Circuit explained that the

argument failed because the statute in question "state[d] no

overarching genus of which [the alternatives] [were] species."

Id.

Rojas's counsel at oral argument did contend that the

alternatives of wounding, placing a life in jeopardy, and

repeatedly committing the offense of simple mail robbery is each

properly understood to identify a means of satisfying the single

element of "enhanced culpability." But this purported element

does not appear in the text of § 2114(a). And, while the

assertedly indivisible statute in Chambers v. United States, 555

- 21 - U.S. 122, 126 (2009) also lacked any named element to which the

asserted listed means were claimed to relate, the Court there

considered the similarity (or dissimilarity) of the behavior

described by each asserted alternative means in order to determine

whether the asserted alternative means were "variations on a single

theme . . . together constituting a single category" and so a

single offense, or were too dissimilar from one another to support

the conclusion that they were alternative means of committing a

single offense rather than separate offenses.

That same logic applies here and reinforces the

conclusion that it does not make sense to read an implied umbrella

element of "enhanced culpability" into § 2114(a). The behaviors

described in the listed alternatives here -- at least when

comparing committing simple mail robbery twice to wounding a victim

or using a dangerous weapon to place a mail worker's life in

jeopardy -- are, like the alternatives in Chambers, materially

different in nature and in the types of risk each poses. Cf.

United States v. Allred, 942 F.3d 641, 650 (4th Cir. 2019) ("Put

simply, the behavior typically underlying the causation of bodily

injury 'differs so significantly' from that underlying damage to

property that those statutory phrases cannot plausibly be

considered alternative means." (quoting Chambers, 555 U.S. at

126)).

- 22 - Further, this conclusion comports with the structure of

§ 2114(a). Unlike the examples provided by the Supreme Court in

Mathis, the alternatives listed in the statute at issue here are

each separated by the disjunctive "or," 18 U.S.C. § 2114(a), which

supports the notion that each alternative stands on its own rather

than as an illustration of an "overarching genus." See McCants,

952 F.3d at 426.

Finally, although the First Circuit has not issued model

jury instructions on § 2114(a), the two circuits to have done so

both identify wounding and placing a victim's life in jeopardy by

use of a dangerous weapon as elements that must be proven to a

jury beyond a reasonable doubt, without identifying the recidivist

provision in a similar way. See Pattern Crim. Jury Instr. 7th

Cir. § 2114(a) at 870 (2023 ed.); Pattern Crim. Jury Instr. 11th

Cir. O77 (2024); see also United States v. Bain, 874 F.3d 1, 30

(1st Cir. 2017) ("There are a number of different ways of

distinguishing elements from means, including looking

at . . . relevant model jury instructions . . . ."). Moreover,

contrary to Rojas's contention that the indictment and the plea

agreement do not "speak plainly" on the question of divisibility,

the two indictments under which Rojas was charged allege that Rojas

committed simple mail robbery, "and while committing said offense,

did put [postal workers'] lives in jeopardy by the use of dangerous

weapons." And his plea agreements then use the same language,

- 23 - thereby making it clear that the prosecutors in Rojas's case did

"referenc[e] one alternative term to the exclusion" of the other

two provisions -- namely, recidivating or wounding a postal

carrier. Mathis, 579 U.S. at 519.

Thus, we reject Rojas's argument that the alternatives

listed after the semicolon in § 2114(a) -- wounding a mail carrier,

placing their life in jeopardy by use of a dangerous weapon, and

recidivating -- are merely means of committing a single,

indivisible offense of aggravated mail robbery.5

D.

This last point also suffices to resolve any arguable

dispute between the parties over whether the District Court

documents "speak plainly" as to which variant of the offense of

aggravated mail robbery formed Rojas's predicate offenses. It is

clear that each of Rojas's convictions for federal mail robbery

under § 2114(a) was based on his having pleaded guilty to the

offense of aggravated mail robbery through putting the lives of

postal employees in jeopardy by the use of dangerous weapons while

5Given our reasons for rejecting Rojas's contention that the language beyond the semicolon sets forth alternative means of committing a single, indivisible offense, we need not decide here whether the portion of that language concerning the repeated commission of simple mail robbery constitutes a separate offense or a mere sentencing factor, or whether the language concerning wounding and placing a postal worker's life in jeopardy constitutes a single, indivisible aggravated mail robbery offense, or two distinct such offenses.

- 24 - committing a simple mail robbery. As such, we do not disturb any

of the factual findings on that score that were made below, and so

proceed on the understanding that Rojas was convicted only of a

variant of aggravated mail robbery that does not implicate the

language in § 2114(a) that concerns the repeated commission of

simple mail robbery.6

Moreover, Rojas does not dispute that the offense of

aggravated mail robbery -- if not susceptible of being committed

by means of repeatedly committing simple mail robbery -- qualifies

as a "crime of violence" under the force clause of § 924(c)'s

definition of a "crime of violence." And he fails to do so,

notwithstanding that each of the judges below held that such an

offense can so qualify in denying his respective petitions and

that all our sister circuits to have addressed the question thus

far have reached the same conclusion as the judges below did here.

See Pannell, 115 F.4th at 162; United States v. Bryant, 949 F.3d

168, 180 (4th Cir. 2020); United States v. Castro, 30 F.4th 240,

248 (5th Cir. 2022); Knight v. United States, 936 F.3d 495, 501

6 Because we hold that Rojas was convicted of aggravated § 2114(a) mail robbery due to his having placed in jeopardy, by the use of a dangerous weapon, the lives of the postal service employees, we need not address Rojas's argument that a recidivist version of aggravated mail robbery would not be a crime of violence, nor do we address his closely related argument that simple mail robbery is not a crime of violence. For the same reason, we do not pass on the parties' arguments as to whether simple mail robbery under § 2114(a) is further divisible into separate offenses.

- 25 - (6th Cir. 2019); United States v. Enoch, 865 F.3d 575, 580 (7th

Cir. 2017); Buck, 23 F.4th at 928. Thus, any such contention is

waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990).

E.

Accordingly, we need only address Rojas's final ground

for contending that, under Johnson II, his federal mail robbery

convictions under § 2114(a) were not for an offense that qualifies

as a "crime of violence" under § 924(c), such that his convictions

cannot stand. This contention rests on the fact that, in his view,

he was convicted of committing aggravated mail robbery as an aider

and abettor rather than as a principal, as he contends that the

force clause of § 924(c)'s definition of a "crime of violence"

does not encompass the offense of aggravated mail robbery under

§ 2114(a) when it is premised on aiding and abetting the commission

of that offense. And that is so, he contends, even if the offense

of aggravated mail robbery under § 2114(a) does not have as a means

of committing it the repeated commission of simple mail robbery

under that provision.7

7 Because we hold in the government's favor on this issue, we need not address the government's argument that the question of accomplice liability was not fairly raised in Rojas's application for a COA. See Doe v. Town of Lisbon, 78 F.4th 38, 44-45 (1st Cir. 2023) (holding that, when a case poses a question of statutory, rather than Article III, jurisdiction, "the question of jurisdiction need not be resolved if a decision on the merits will favor the party challenging the court's jurisdiction" (citation - 26 - In addressing this last aspect of Rojas's challenge to

his § 924(c) convictions, we are not writing on a blank slate. As

noted above, 18 U.S.C. § 2 states that "[w]hoever commits an

offense against the United States or aids, abets, counsels,

commands, induces or procures its commission, is punishable as a

principal." Our precedent makes clear, however, that this

provision does not create a separate offense of aiding and abetting

a federal crime. Rather, it identifies a theory of liability for

the commission of every federal offense to which § 2 applies. See

United States v. Sanchez, 917 F.2d 607, 611 (1st Cir. 1990)

(holding that aiding and abetting under § 2 "is not a separate

offense" from the underlying substantive offense itself); see also

id. (holding that the government need not refer to § 2 in charging

documents when it wants to pursue an aiding-and-abetting theory);

Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998) ("[I]f

[a statutory provision] constitutes a separate crime, then the

Government must write an indictment that mentions the [separate

crime's] additional element[s] . . . .").

and internal quotation marks omitted)); 28 U.S.C. § 2253(c)(1) ("Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . . the final order in a proceeding under section 2255."). We also need not address the government's argument that Rojas was in fact convicted as a principal, rather than an accomplice, because for the reasons we explain, that distinction makes no difference under our precedent for purposes of determining whether the offense qualifies as a "crime of violence" under § 924(c).

- 27 - Moreover, against that backdrop, we held in Lassend that

whether a defendant is convicted of a predicate "crime of violence"

as a principal or an accomplice makes no difference under the

categorical approach. 898 F.3d at 130 ("[The definition of a

predicate offense of conviction] focuses on the elements of the

crime of conviction, not on the particular act committed by the

defendant or the circumstances of his conviction. What matters

for the force clause, then, is whether a felony's legal definition

involves violent force, not whether a particular individual

actually employed or intended to employ violent force in committing

that felony."). We reaffirmed that holding in United States v.

García-Ortiz, 904 F.3d 102 (1st Cir. 2018), stating that 18 U.S.C.

§ 2 "makes an aider and abettor 'punishable as a principal,' and

thus no different for purposes of the categorical approach than

one who commits the substantive offense" by his own hand. Id. at

109 (quoting 18 U.S.C. § 2).

This approach also accords with the approach taken by

every sister circuit to date. See, e.g., Medunjanin v. United

States, 99 F.4th 129, 135 (2d Cir. 2024) (per curiam); United

States v. Stevens, 70 F.4th 653, 662 (3d Cir. 2023); United States

v. Draven, 77 F.4th 307, 316-18 (4th Cir. 2023); United States v.

Hill, 63 F.4th 335, 363 (5th Cir. 2023); Nicholson v. United

States, 78 F.4th 870, 880 (6th Cir. 2023); United States v.

Worthen, 60 F.4th 1066, 1069-70 (7th Cir. 2023); Kidd v. United

- 28 - States, 929 F.3d 578, 581 (8th Cir. 2019) (per curiam); United

States v. Eckford, 77 F.4th 1228, 1236-37 (9th Cir. 2023); United

States v. Deiter, 890 F.3d 1203, 1214-16 (10th Cir. 2018); United

States v. Wiley, 78 F.4th 1355, 1363-65 (11th Cir. 2023); United

States v. Smith, 104 F.4th 314, 323 (D.C. Cir. 2024). Indeed, at

least one of our sister circuits -- in rejecting a similar

argument -- has stated that, if we adopted the position Rojas asks

us to take today, no federal crime could qualify as a predicate

under the force clause, because any federal conviction can rest on

accomplice liability, whether or not a guilty plea or jury

instructions make that basis explicit. See Worthen, 60 F.4th at

1070-71; Sanchez, 917 F.2d at 611; see also United States v.

Cammorto, 859 F.3d 311, 316 (4th Cir. 2017) (rejecting an argument

on the grounds that it would "mean that no federal offense could

be treated as a predicate offense for purposes of [the] ACCA, the

Sentencing Guidelines, the Immigration and Nationality Act, or any

other statute under which courts use the categorical approach.");

cf. Voisine v. United States, 579 U.S. 686, 695-96 (2016)

(declining to read a statutory provision under the categorical

approach such that it would not have been operative in more than

half of the country at the time of passage).

Rojas offers no response to this last concern about the

practical consequences of our adopting his position. Nor does he

dispute that Lassend and García-Ortiz rejected the aiding and

- 29 - abetting-based theory for why an offense does not qualify as a

"crime of violence" that he raises today, or that, as the

government notes, a rule of law announced by a panel of this Court

is generally binding on subsequent panels. See United States v.

Whindleton, 797 F.3d 105, 113 (1st Cir. 2015). Nonetheless, he

points out that we have recognized a narrow exception to this

general rule under the law-of-the-circuit doctrine when "[a]n

existing panel decision [is] undermined by controlling authority,

subsequently announced, such as an opinion of the Supreme

Court . . . ," id. at 113 (alterations in original) (quoting

United States v. Rodriguez-Pacheco, 475 F.3d 434, 441 (1st Cir.

2007)), or "when 'authority that postdates the original decision,

although not directly controlling, . . . nevertheless offer[s] a

compelling reason for believing that the former panel, in light of

new developments, would change its collective mind,'" United

States v. Guerrero, 19 F.4th 547, 550 (1st Cir. 2021) (alterations

in original) (quoting United States v. Guzmán, 419 F.3d 27, 31

(1st Cir. 2005)). And he contends that the Supreme Court's recent

decision in Taylor fits the bill.

To make this case, Rojas emphasizes the fact that Taylor

expressly states that the focus of the categorical approach is on

whether "the offense requires proof of the defendant's use of force

or threatened use of force." See United States v. Taylor, 596

U.S. 845, 856 (2022) (emphasis added). Rojas then notes that under

- 30 - Rosemond v. United States, 572 U.S. 65, 71 (2014), "a person is

liable under § 2 for aiding and abetting a crime if (and only if)

he (1) takes an affirmative act in furtherance of that offense,

(2) with the intent of facilitating the offense's commission."

Thus, he contends that it follows that a conviction for aiding and

abetting a crime of violence does not require proof that the

defendant himself used, attempted, or threatened to use force.8

In so arguing, Rojas concedes that Taylor concerned

attempted Hobbs Act robbery and did not consider whether accomplice

liability has any effect on the application of the categorical

approach to the force clause in § 924(c)'s definition of a "crime

of violence." See Taylor, 596 U.S. at 848. Rojas nonetheless

contends that the Court's decision in Taylor was "the last in a

relentless line of cases, starting with [the Court's first

categorical approach case,] Taylor v. United States, 495 U.S. 575

(1990), eschewing a focus on anything but whether an offense

8 Rojas premises his argument, in part, on the arguably lesser requirements for finding an accomplice liable under § 2 at the time of his conviction. See United States v. Evans-García, 322 F.3d 110, 114 (1st Cir. 2003) (holding an accomplice liable for a principal's actions if they merely "consciously shared the principal's knowledge of the underlying criminal act, and intended to help the principal") (citation omitted). As we will explain, the evidence required to convict a defendant for aiding and abetting a crime does not impact our analysis of accomplice liability under the categorical approach, so our analysis in this case holds for defendants convicted under § 2, regardless of whether their conviction occurred before or after Rosemond was decided.

- 31 - requires a defendant attempt to use, use, or threaten to use

violent force."

We recognize that "a good rule of thumb for reading

[Supreme Court] decisions is that what they say and what they mean

are one and the same . . . ." Mathis, 579 U.S. at 514. It is

also true that some of the language in the more-recent Taylor

opinion does appear, when read in isolation, to support Rojas's

view. For example, the recent Taylor majority said the following:

"[Section 924(c)(3)(A)] speaks of the 'use' or 'attempted use' of

'physical force against the person or property of another.'

Plainly, this language requires the government to prove that the

defendant took specific actions against specific persons or their

property." Taylor, 596 U.S. at 856 (emphasis added) (quoting 18

U.S.C. § 924(c)(3)(A)).

We are also mindful of the Court's instruction, however,

that "[t]he language of an opinion is not always to be parsed as

though . . . dealing with language of a statute," and instead

"must be read with a careful eye to context" in light of the

discrete case or controversy to which the opinion was addressed.

Nat'l Pork Prods. Council v. Ross, 598 U.S. 356, 373-74 (2023)

(citation omitted). Considering Taylor with this admonition in

- 32 - mind, we conclude that Taylor does not suffice to permit us to

disregard our holdings in Lassend and García-Ortiz.

Taylor had no occasion to address the question of whether

the defendant in committing the offense must have personally

engaged in conduct that satisfied all the elements of attempted

Hobbs Act robbery, rather than merely have aided and abetted the

principal in engaging in such conduct. See 596 U.S. at 849-51.

Instead, that case required the Court to address only the question

of whether, to commit attempted Hobbs Act robbery, force needed to

be used at all. See id. at 851. As a result, the Court had no

reason to consider there whether the defendant might be deemed to

have used the requisite force by virtue of having been an

accomplice to an offense that, when committed by the principal,

involves the use of such force. We thus have no basis for

concluding that, in Taylor, the Court meant to make a significant

statement about whether a conviction premised on an aiding and

abetting theory of liability is encompassed by the force clause in

§ 924(c)'s definition of a "crime of violence."

We also are reluctant to conclude that the Court meant

to do any such thing, given the legal backdrop against which the

question of Taylor's import here arises. In that regard, we have

held that 18 U.S.C. § 2 describes a theory of liability for

committing an offense, rather than a distinct offense in its own

right. See Sanchez, 917 F.2d at 611. Moreover, the text of

- 33 - § 924(c)'s force clause does not clearly compel the conclusion

that it encompasses convictions for predicate offenses only when

the defendant has been convicted of the predicate as a principal.

Indeed, the force clause only requires that a qualifying offense

"ha[ve] as an element the use, attempted use, or threatened use of

physical force against the person or property of another." 18

U.S.C. § 924(c)(3)(A). And a defendant who pleads guilty to a

predicate as an accomplice admits that someone whom he aided or

abetted committed every element of the predicate. See United

States v. Loder, 23 F.3d 586, 590 (1st Cir. 1994) ("In order to

find a defendant guilty of aiding and abetting, the government

must show . . . that the principal committed [every element of]

the underlying substantive crime."). Finally, every circuit to

address this issue post-Taylor has similarly concluded that Taylor

does not require the understanding of § 924(c)'s force clause that

Rojas asks us to endorse. See, e.g., Medunjanin, 99 F.4th at

134-36; Stevens, 70 F.4th at 662; Draven, 77 F.4th at 317-19; Hill,

63 F.4th at 363; Nicholson, 78 F.4th at 878-82; Worthen, 60 F.4th

at 1069-70; Eckford, 77 F.4th at 1236-37; Wiley, 78 F.4th at

1363-65.

We therefore conclude that our decisions in Lassend and

García-Ortiz remain binding on us as a panel. Accordingly, we

must reject Rojas's contention that his convictions for aggravated

mail robbery as an accomplice do not qualify as convictions for

- 34 - crimes of violence because his accomplice status rendered his

predicates beyond the reach of § 924(c)'s force clause. As a

result, we must reject this ground for challenging the District

Courts' denials of his request for federal habeas relief as to his

§ 924(c) convictions.

IV.

We address Rojas's final argument briefly. Here, he

contends, as he did below, that his sentences for his convictions

under § 922(g), which criminalizes being a felon in possession of

a firearm, were improperly enhanced pursuant to the ACCA based on

his prior Puerto Rico law convictions. Specifically, he argues

that the sentence enhancement he received under 18 U.S.C.

§ 924(e)(1) and U.S.S.G. § 2k2.1(a)(1)(B) only applies to him if

he had previously been convicted of some combination of three

qualifying crimes of violence or serious drug offenses and he

contends that he was not, because his past convictions do not

include three such qualifying offenses.

As we already have noted, however, each of the judges

below in denying his respective habeas petitions, as well as a

prior panel of this court, denied Rojas's application for a COA on

this issue. Because Rojas does not raise any new arguments that

were not before that original panel, we see no reason to overturn

that panel's decision. Accordingly, we decline to reach the merits

of Rojas's arguments on this score. See Peralta v. United States,

- 35 - 597 F.3d 74, 83 (1st Cir. 2010) ("The general rule is that 'a court

of appeals should not consider the merits of an issue advanced by

a habeas petitioner unless a COA first has been obtained with

respect to that issue.'" (emphasis omitted) (quoting Bui v.

DiPaolo, 970 F.3d 232, 237 (1st Cir. 1999))).

For the foregoing reasons, the judgments are affirmed.

- 36 -