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PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-2
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHADRICK E. FULKS,
Defendant – Appellant.
No. 23-3
BRANDON L. BASHAM,
Appeals from the United States District Court for the District of South Carolina at Florence. Joseph F. Anderson, Jr., Senior District Judge. (4:02-cr-00992-JFA−1; 4:16-cv-02058- JFA; 4:02-cr-00992-JFA-2; 4:16-cv-02027-JFA)
Argued: September 26, 2024 Decided: October 28, 2024 USCA4 Appeal: 23-3 Doc: 76 Filed: 10/28/2024 Pg: 2 of 29
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge King and Judge Agee joined.
ARGUED: Peter Konrad Williams, FEDERAL COMMUNITY DEFENDER OFFICE, Philadelphia, Pennsylvania, for Appellants. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Leticia Marquez, Assistant Federal Public Defender, Lindsey Layer, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Tucson, Arizona, for Appellant Brandon Basham. Nicole M. Argentieri, Acting Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C; Adair F. Burroughs, United States Attorney, Kathleen M. Stoughton, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
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WILKINSON, Circuit Judge:
In 2002, Chadrick Fulks and Brandon Basham unleashed a criminal rampage that
lasted seventeen days and zigzagged across several states. Among many violent acts, they
carjacked, kidnapped, raped, and killed forty-four-year-old Alice Donovan. They were
convicted in the District of South Carolina on eight counts. A jury sentenced them to death.
Years later Fulks and Basham filed a successive motion under 28 U.S.C. § 2255
claiming that their firearms convictions under 18 U.S.C. § 924 were invalid. Their principal
contention was that their carjacking convictions under 18 U.S.C. § 2119 no longer qualified
as predicate “crimes of violence” under § 924 in light of the Supreme Court’s decision in
United States v. Taylor, 596 U.S. 845 (2022). They claimed that Taylor, which held that
attempted Hobbs Act robbery was not a crime of violence, applied equally to attempted
carjacking. And if attempted carjacking was not a crime of violence, they argued that
because the carjacking statute was indivisible, completed carjacking was not a predicate
crime of violence either.
Fulks and Basham conclude that without a proper predicate not only must their
§ 924 firearms convictions be overturned, but that they are also entitled to an entirely new
sentencing. The district court disagreed with their contentions, denied their motion, and
granted a certificate of appealability. We likewise disagree with appellants’ varying
arguments and affirm the judgment of the district court.
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I.
A.
The heinous facts of this case are set out in vivid detail in this court’s earlier opinions
affirming appellants’ convictions and sentences on direct appeal, United States v. Fulks,
454 F.3d 410 (4th Cir. 2006); United States v. Basham, 561 F.3d 302 (4th Cir. 2009), and
affirming the district court’s denial of their first motions to vacate under § 2255, United
States v. Fulks, 683 F.3d 512 (4th Cir. 2012); United States v. Basham, 789 F.3d 358 (4th
Cir. 2015). We recite the key facts here.
On November 4, 2002, cellmates Chadrick Fulks and Brandon Basham escaped
from a county detention facility in Kentucky. Fulks had been charged with credit card fraud
and first-degree abuse of a child. Basham had been serving a sentence for felony forgery.
After escaping, the duo carjacked a Kentucky man at knifepoint and tied him to a tree.
They drove to Indiana where they borrowed a van from a friend. On November 8 they stole
several firearms and blank checks from a local residence. By November 10 they were in
Ohio, where they converted the stolen checks into cash, used illicit drugs, and stole a
woman’s purse and cellphone. The next day, they drove south to West Virginia. See Fulks,
454 F.3d at 414–15; Basham, 561 F.3d at 309–10.
In Huntington, West Virginia, Fulks and Basham’s conduct took a horrific turn.
They drove the van to the parking lot of a local mall and carjacked nineteen-year-old
Samantha Burns. They kept Burns in the car and visited several ATMs to steal money from
her bank account. Basham then decided to rape Burns. He drove her to a secluded area to
do so while Fulks retrieved the van and followed behind. When Basham rejoined Fulks, he
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was alone and had Burns’s heart-shaped ring as a keepsake. Basham then set fire to her car.
They later admitted to killing Burns and pleaded guilty to carjacking resulting in death in
the Southern District of West Virginia. See Fulks, 454 F.3d at 415–16, 416 n.1; Basham,
561 F.3d at 310.
On November 12, Fulks and Basham drove the van to South Carolina. Over the next
two days, they broke into cars to steal wallets and purses, used more drugs, burglarized a
home to steal more firearms, fired their guns at a man who discovered them there, and stole
a pickup truck. See Fulks, 454 F.3d at 416; Basham, 561 F.3d at 311.
Now come the brutal facts at the center of this appeal. Just before 3:00 p.m. on
November 14, Fulks and Basham drove the stolen pickup truck to a Walmart in Conway,
South Carolina. In the parking lot they saw a blue BMW driven by Alice Donovan, a forty-
four-year-old mother and grandmother. Basham jumped into the car and forced Donovan
to drive. Fulks then got in the car and started driving while Basham, armed with a 0.22
revolver, took Donovan with him to the back seat. They visited several ATMs and
withdrew money from Donovan’s account using a bank card they took from her purse.
Fulks then drove the car to a cemetery in North Carolina, where Basham forcibly removed
all of Donovan’s clothing. See Fulks, 454 F.3d at 416; Basham, 561 F.3d at 311; J.A. 249–
52 (Fulks’s plea colloquy).
At the cemetery, Basham and Fulks took turns raping Donovan in the back seat of
her car. Remnants of Fulks’s semen were later found on the seat. Fulks then began driving
the BMW back to South Carolina. At some point Fulks stopped the car, and Basham, armed
with his gun, led Donovan away into the woods. He reemerged twenty minutes later, alone.
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Fulks and Basham later admitted that they killed Donovan. Her remains were found years
after this ordeal. See Fulks, 454 F.3d at 416–17; Basham, 561 F.3d at 311–12; J.A. 252–55
(Fulks’s plea colloquy), 592.
After raping and killing Donovan, Fulks and Basham drove Donovan’s BMW to
West Virginia, using her bank card for various purchases along the way. According to
Fulks, Basham told him during that drive that he had strangled Donovan. Over the next
two days, Fulks and Basham smoked crack at a friend’s house. On November 17, Basham
attempted to carjack yet another woman by pointing a gun at her fifteen-year-old daughter.
After Basham failed to take the woman’s car, a police officer arrested him. When Fulks
learned about Basham’s arrest, he left West Virginia in the BMW and drove to his brother’s
home in Indiana. He was apprehended a few days later on November 20. See Fulks, 454
F.3d at 417; Basham, 561 F.3d at 311–12; J.A. 258 (Fulks’s plea colloquy).
B.
Fulks and Basham were indicted in the District of South Carolina on December 17,
2002. The grand jury returned a superseding indictment charging each of them with the
same eight counts, four of which are relevant here. Count 1 charged Fulks and Basham
with carjacking resulting in the death of Alice Donovan, in violation of 18 U.S.C. § 2119.
Count 2 charged them with kidnapping resulting in the death of Alice Donovan, in violation
of 18 U.S.C. § 1201. The government indicated that it intended to pursue the death penalty
on Counts 1 and 2. Count 5 charged a conspiracy to use firearms during “crimes of
violence,” in violation of 18 U.S.C. § 924(o), and Count 6 charged use of a firearm during
“crimes of violence,” in violation of 18 U.S.C. § 924(c)(1)(A). Counts 5 and 6 required at
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least one predicate “crime of violence,” as defined in § 924(c)(3). The indictment stated
that the “crimes of violence” were “charged in Counts 1 and 2.” 1 J.A. 157–58, 593–94.
In May 2004, Fulks pleaded guilty to all eight counts in the indictment. Judge
Anderson of the United States District Court for the District of South Carolina presided
over the Rule 11 plea hearing and colloquy. Fulks pleaded “straight up,” with no plea
agreement with the government. J.A. 227–28, 594.
Basham went to trial in September 2004. The government produced testimony from
89 witnesses and introduced surveillance footage from Walmart that showed the carjacking
and kidnapping of Donovan. After a thirteen-day trial, the jury found Basham guilty on all
eight counts. J.A. 594; Basham, 561 F.3d at 314–15.
Fulks and Basham each underwent sentencing trials for Counts 1 and 2, the two
charges on which the government sought the death penalty. The two juries sentenced Fulks
and Basham to death on both the carjacking and the kidnapping counts. On the remaining
six counts, Judge Anderson sentenced Fulks and Basham to 744 months imprisonment. See
J.A. 594–95; Fulks, 454 F.3d at 420; Basham, 561 F.3d at 316.
Both filed timely appeals, and this court affirmed their convictions and sentences.
See Fulks, 454 F.3d at 413; Basham, 561 F.3d at 339 (commending “the district court’s
cautious and thorough handling” of the proceedings). They next sought initial post-
conviction relief under 28 U.S.C. § 2255. The district court denied their motions, and
1 The other four counts were (3) interstate transportation of a stolen motor vehicle; (4) conspiracy; (7) being felons in possession of firearms; and (8) possession of stolen firearms. J.A. 594.
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panels of this court affirmed. See J.A. 595; Fulks, 683 F.3d at 515–16; Basham, 789 F.3d
at 361–62.
In June 2016, this court authorized Fulks and Basham to file a successive motion
for post-conviction relief under § 2255. Appellants asked the district court to vacate their
firearms convictions under Counts 5 and 6 for lack of a valid predicate “crime of violence.”
They also sought vacatur of their death sentences on the theory that the invalid § 924
firearms convictions tainted the death penalty jury trials that were held for the carjacking
and kidnapping convictions. The district court repeatedly stayed the proceedings while the
Supreme Court and the Fourth Circuit issued several relevant decisions. Finally, with the
benefit of those decisions, the district court denied appellants’ successive § 2255 motion
in January 2023. J.A. 595–99, 621.
C.
The district court granted a certificate of appealability as to three issues. First,
whether federal carjacking, 18 U.S.C. § 2119, is a “crime of violence” under 18 U.S.C.
§ 924(c)(3)(A) in light of the Supreme Court’s decisions in United States v. Taylor, 596
U.S. 845 (2022), and Borden v. United States, 593 U.S. 420 (2021). Appellants and the
government agree that kidnapping is no longer a crime of violence after our decision in
United States v. Walker, 934 F.3d 375 (4th Cir. 2019). See Opening Brief at 29; Response
Brief at 14. Second, if carjacking is a crime of violence, whether appellants’ § 924
convictions were properly predicated on their carjacking convictions and not solely on their
kidnapping convictions. Third, if the § 924 convictions are invalid, whether the proper
remedy is to vacate appellants’ sentences only on the two § 924 convictions or to vacate
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their sentences on all counts, including the death sentences for the carjacking and
kidnapping convictions. J.A. 659. Because we hold that completed carjacking is a crime of
violence under § 924(c)(3)(A) and that appellants’ § 924 convictions were validly
predicated on their carjacking convictions, we do not reach the third issue.
D.
We review the denial of a § 2255 motion de novo. United States v. McKinney, 60
F.4th 188, 191 (4th Cir. 2023). Our de novo review includes “the legal question whether a
particular criminal offense qualifies as a crime of violence under Section 924(c).” United
States v. Draven, 77 F.4th 307, 313 (4th Cir. 2023).
II.
Appellants, as we have noted, seek to vacate their sentences by arguing that their
§ 924 convictions are invalid. They are invalid, appellants contend, because they lack a
proper predicate crime of violence.
Section 924(c), along with § 924(o) which prohibits conspiracy to violate § 924(c),
authorizes additional criminal penalties when a defendant uses a firearm during a “crime
of violence.” Section 924(c)(3) defines a “crime of violence” as a felony that either:
(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.
18 U.S.C § 924(c)(3). Subparagraph (A) is known interchangeably as the “force clause” or
the “elements clause.” United States v. Roof, 10 F.4th 314, 398 (4th Cir. 2021).
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Subparagraph (B) is the “residual clause.” Id. at 398 n.60. Because the Supreme Court in
United States v. Davis ruled that the residual clause was unconstitutionally vague, 588 U.S.
445, 470 (2019), and this Davis rule is “retroactively available to cases before us on
collateral review,” any predicate crime here “must satisfy the force (or elements) clause”
to be a “crime of violence,” United States v. Draven, 77 F.4th 307, 314 (4th Cir. 2023). 2
To determine whether a predicate crime satisfies the force clause and “thus
constitutes a ‘crime of violence,’ we generally use the categorical approach.” United States
v. Jackson, 32 F.4th 278, 284 (4th Cir. 2022). We examine “whether the statutory elements
of the offense necessarily require the use, attempted use, or threatened use of physical
force.” Id. We look only at “the elements of the crime as defined in the statute, not the facts
particular to the case at hand.” Id. The categorical approach thus ignores the defendant’s
actual conduct and asks only whether the “most innocent conduct criminalized by the
statute” satisfies the force clause. Id.
But what if a statutory provision “list[s] potential offense elements in the
alternative” such that it effectively defines two or more separate crimes? Descamps v.
United States, 570 U.S. 254, 260 (2013). Such statutes are called “divisible.” Id. Unlike an
indivisible statute, which “merely set[s] out different means of completing the crime,”
Jackson, 32 F.4th at 284, a divisible statute “lists ‘potential offense elements in the
alternative,’ and thus includes ‘multiple, alternative versions of the crime,’” United States
2 “Because the definition of ‘crime of violence’ is almost identical to the definition of ‘violent felony’ in the ACCA, our decisions interpreting one such definition are persuasive as to the meaning of the others.” Roof, 10 F.4th at 398 n.61.
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v. Bryant, 949 F.3d 168, 173 (4th Cir. 2020) (quoting Descamps, 570 U.S. at 260, 262).
Without more information about a defendant’s proceedings, a divisible statute therefore
“renders opaque which element played a part in the defendant’s conviction.” Descamps,
570 U.S. at 260. In other words, we “cannot tell, simply by looking at a divisible statute,
which version of the offense a defendant was convicted of.” Roof, 10 F.4th at 398.
So to determine whether a defendant’s conviction under a divisible statute satisfies
the force clause, “we apply a ‘variant’ of the categorical approach referred to as the
modified categorical approach.” Jackson, 32 F.4th at 284 (quoting Descamps, 570 U.S. at
257). In doing so, we go beyond the text of the divisible statute and “consult a limited set
of record documents” to determine “what crime, with what elements, a defendant was
convicted of.” Roof, 10 F.4th at 399. We then evaluate whether that “specific crime”
requires, under the categorical approach, “the use, attempted use, or threatened use of
physical force” and thus satisfies the force clause. See United States v. Allred, 942 F.3d
641, 648 (4th Cir. 2019); Jackson, 32 F.4th at 284.
Appellants’ ultimate argument is that completed carjacking is not a crime of
violence. To get to that point, appellants first claim that the federal carjacking statute is
indivisible. The statute reads:
Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall— (1) be fined under this title or imprisoned not more than 15 years, or both, (2) if serious bodily injury . . . results, be fined under this title or imprisoned not more than 25 years, or both, and
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(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death.
18 U.S.C. § 2119 (emphasis added). Appellants contend that this statute is not divisible
into completed and attempted carjacking. And if attempted carjacking is not a crime of
violence under Taylor, they argue that the categorical approach requires us to hold, contrary
to circuit precedent, that the entire carjacking statute is not a crime of violence. Appellants’
argument proceeds in two steps.
First, appellants argue that United States v. Taylor, 596 U.S. 845 (2022), extends to
attempted carjacking. Taylor held that attempted Hobbs Act robbery is not a crime of
violence under the force clause. The Supreme Court reasoned that a defendant need only
take a “substantial step” toward completing a Hobbs Act robbery in order to be convicted
of attempted Hobbs Act robbery. Taylor, 596 U.S. at 851. And “whatever a substantial step
requires, it does not require the government to prove that the defendant used, attempted to
use, or even threatened to use force against another person or his property.” Id. Appellants
argue that the same logic applies to attempted carjacking: Because one could take a
substantial step toward committing a carjacking without the use, attempted use, or
threatened use of force, attempted carjacking is not a crime of violence.
Second, appellants contend that the carjacking statute is not divisible into completed
and attempted carjacking. Therefore, if attempted carjacking is not a crime of violence, the
entire carjacking statute is not a crime of violence under the categorical approach that
governs indivisible statutes.
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We do not agree that the carjacking statute is indivisible. Instead we hold that the
statute is divisible into completed carjacking and attempted carjacking.
A statute is divisible if it “sets out different elements of committing different
offenses” rather than “different means of committing a single offense.” United States v. Al-
Muwwakkil, 983 F.3d 748, 755 (4th Cir. 2020) (citing Mathis v. United States, 579 U.S.
500 (2016)). “Elements, as contrasted with means, are the ‘constituent parts of a crime’s
legal definition’ that the ‘prosecution must prove to sustain a conviction’ and which ‘the
jury must find beyond a reasonable doubt to convict the defendant.’” Allred, 942 F.3d at
648 (quoting Mathis, 579 U.S. at 504).
The carjacking statute here has a list: “by force and violence or by intimidation, or
attempts to do so.” To determine whether the statute is divisible, we must decide whether
this list contains two or more elements or whether it is merely a recitation of the “factual
means of committing a single element.” Mathis, 579 U.S. at 506.
Appellants argue that this list simply “describes three alternative ways of
committing a single offense: (1) by force and violence, (2) by intimidation, and (3)
attempt.” Opening Brief at 15. The government argues, and the district court held, that the
statute is divisible into two distinct offenses: (1) “carjacking ‘committed by force and
violence or by intimidation’ (completed carjacking)” and (2) “‘attempt[ed]’ carjacking.”
Response Brief at 16; see also J.A. 606–07.
In our view, it is plausible that “force and violence” and “intimidation” are “mere
illustrative examples” of the “means of commission.” United States v. Cornette, 932 F.3d
204, 212 (4th Cir. 2019). But we cannot agree that attempt is a “means” rather than an
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element. After considering the numerous “indicia of divisibility,” Jackson, 32 F.4th at 286,
we agree with the district court and hold that the carjacking statute is divisible into
completed carjacking and attempted carjacking.
We “start with the text” of the statute. Al-Muwwakkil, 983 F.3d at 755 (quoting
Allred, 942 F.3d at 649). Although not dispositive, disjunctive phrasing is “a signal” of
divisibility. Jackson, 32 F.4th at 286. The case for divisibility is even stronger when we
study the alternatives and determine that the “kind of conduct proscribed by the different
formulations” “differs significantly.” Id.; see also Al-Muwwakkil, 983 F.3d at 755.
Here, the text and the conduct underlying the alternatives strongly signal divisibility.
The carjacking statute punishes anyone who “takes” a motor vehicle “by force and violence
or by intimidation” or “attempts to do so.” That is clearly disjunctive. And the two commas
that enclose the phrase “or attempts to do so” provide an additional clue that the verb
“attempts” is intentionally separated from the listed means and is an alternative to “takes.”
And when we “parse the terms,” Allred, 942 F.3d at 649, we see that the conduct
required in an attempt to carjack a motor vehicle “differs significantly” from that required
to complete a carjacking. As Taylor itself reiterated, attempt requires only taking “a
substantial step toward” committing the underlying crime. Taylor, 596 U.S. at 851. And
“whatever a substantial step requires, it does not require the government to prove that the
defendant used, attempted to use, or even threatened to use force.” Id. A substantial step
here could be a far cry from using force, violence, or intimidation to seize a motor vehicle.
It might include putting a tracking device on your neighbor’s car, surveilling the car’s
customary routes, and buying a gun, all before your neighbor suddenly leaves town. See
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also id. at 851–52 (offering similar hypothetical about attempted Hobbs Act robbery). We
therefore read the disjunctive text to delineate two elements, separated by the word “or”
and set off by commas: “Whoever” (1) “takes a motor vehicle . . . by force and violence or
by intimidation, or” (2) “attempts to do so.” The statute “articulat[es] [two] different
crimes.” Al-Muwwakkil, 983 F.3d at 755.
Our textual analysis is bolstered by history and basic criminal law doctrine.
Attempts and completed crimes have historically been recognized as different crimes.
Justice Holmes observed that the common law distinguished between “criminal attempts”
and “substantive crimes,” noting that an attempt “differs from the attempted crime in this,
that the act has failed to bring about the result which would have given it the character of
the principal crime.” OLIVER WENDELL HOLMES, JR., THE COMMON LAW 65–70 (1881).
LaFave’s criminal law treatise traced the “modern doctrine of attempt” to a 1784 English
case. 2 W. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 11.2(a) (3d ed. 2023). The Supreme
Court too has observed that “[a]t common law, the attempt to commit a crime was itself a
crime.” United States v. Resendiz-Ponce, 549 U.S. 102, 106 (2007). And our court has
noted that an “attempt to commit a crime . . . is recognized as a crime distinct from the
crime intended by the attempt.” United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003).
Modern attempt doctrine endorses that historical understanding. The elements of
attempt are distinct from the substantive crime. Attempt requires (1) an intent to commit
the crime and (2) a substantial step toward completing it. See Taylor, 596 U.S. at 851 (citing
Resendiz-Ponce, 549 U.S. at 107). This court has previously emphasized that point:
“Whereas aiding and abetting a crime possesses the same elements as the underlying
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offense, Taylor hinges on the fact that attempt is a separate crime from the underlying
offense, with the distinct element of a substantial step.” Draven, 77 F.4th at 318 (internal
quotation marks omitted). It would be odd to hold here that attempt is no different from the
completed crime.
Removing any doubt, a quick look at the record confirms that the carjacking statute
is divisible. The Supreme Court “authorize[s] us to take a ‘peek’ at the record documents
‘for the sole and limited purpose of determining whether [the listed statutory alternatives
are] element[s] of the offense.’” Allred, 942 F.3d at 651 (alterations in original) (quoting
Mathis, 579 U.S. at 518). These documents include the “indictments, jury instructions,
[and] plea colloquies,” which “often reflect the crime’s elements.” Mathis, 579 U.S. at 518
n.7. If these documents reference “one alternative term to the exclusion of all others, that
indicates that the statute contains a list of elements, each one of which goes towards a
separate crime.” Allred, 942 F.3d at 651–52 (quoting Mathis, 579 U.S. at 519); see also
Jackson, 32 F.4th at 286–87.
The record documents here refer only to completed carjacking, to the exclusion of
attempted carjacking. The indictment charged that Fulks and Basham “did take . . . a motor
vehicle.” J.A. 148. During Fulks’s plea hearing, Judge Anderson stated the first element of
his carjacking charge as “number one, that you took a motor vehicle.” J.A. 195. And the
jury charge in Basham’s trial instructed that “to find the defendant guilty of [Count 1], the
Government must prove” that “the defendant took a motor vehicle.” J.A. 609.
We reject two arguments appellants make in favor of indivisibility. First, they point
out that the carjacking statute imposes the same penalties for completed and attempted
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carjacking. But we have previously confirmed that “the absence of distinct punishments is
not dispositive.” Jackson, 32 F.4th at 286 n.8.
Second, appellants identify a compendium of pattern jury instructions for one
federal district, which list the first element of § 2119 as “the defendant took, or attempted
to take, a motor vehicle.” Eric Ruschky, Pattern Jury Instructions for Federal Criminal
Cases: District of South Carolina 387 (2024 Online Edition). Appellants argue that because
they “neither separate an attempt from the actual taking, nor require the jury to agree on
whether the defendant took or attempted to take the motor vehicle,” these pattern jury
instructions show that the carjacking statute is indivisible. Opening Brief at 18.
It is true that “extrinsic sources” like model jury instructions can aid in the
divisibility analysis. Allred, 942 F.3d at 650. But they are useful only insofar as they reveal
“how courts generally instruct juries with respect to an offense.” United States v. Ortiz-
Orellana, 90 F.4th 689, 703 (4th Cir. 2024) (quoting Allred, 942 F.3d at 650). We agree
with the government that “one commentator’s carjacking jury instructions” applicable in
“a single federal district” do not speak to how federal courts generally instruct juries on
§ 2119. See Response Brief at 19–20. We are more persuaded by the standard federal
pattern jury instructions, which “bracket [attempted to take] separately from [took] a car,”
indicating two potential elements for the jury charge. Response Brief at 18 (citing 2B
O’MALLEY ET AL., FEDERAL JURY PRACTICE AND INSTRUCTIONS, § 58:03 (6th ed)).
In short, for the reasons set forth above, it is clear that the federal carjacking statute
comprises two separate offenses: completed (“takes”) and attempted (“or attempts to do
so”) carjacking. The evidence favoring divisibility is simply overwhelming.
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We next hold that completed carjacking is categorically a crime of violence under
§ 924(c)(3)’s force clause. Our analysis is relatively straightforward because we rely on
this court’s previous decisions holding the same. And we conclude, contrary to appellants’
contentions, that nothing in Taylor undermined those earlier decisions. Both the federal
carjacking statute and the force clause use the word “attempt.” The carjacking statute, as
we have explained, delineates an attempt as a separate crime. It is equally plain from the
force clause that “attempted use” and “threatened use” are no more than illustrative means
of applying “physical force.” Even if attempted carjacking may not always require the use,
attempted use, or threatened use of force, it is clear that completed carjacking, as our prior
decisions have held, does.
In United States v. Evans, this court held that a conviction under the federal
carjacking statute qualifies as a crime of violence under the force clause. 848 F.3d 242, 244
(4th Cir. 2017). Applying the categorical approach, Evans held that the “act of taking a
motor vehicle ‘by force and violence’ requires the use of violent physical force, and the act
of taking a motor vehicle ‘by intimidation’ requires the threatened use of such force.” Id.
at 247. To secure a conviction under § 2119, the government has to prove “as an
element the use, attempted use, or threatened use of physical force.” See id. at 245–46
(quoting § 924(c)(3)(A)).
We reaffirmed that holding in United States v. Runyon, 994 F.3d 192, 201 (4th Cir.
2021). And we did so again just last year in United States v. Draven, where we observed
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that our precedent on the question was “overwhelming” and “clearly dictates that
carjacking resulting in death is a crime of violence.” 77 F.4th 307, 317 (4th Cir. 2023).
The Supreme Court’s decision in Taylor did not overrule these cases. Taylor held
that attempted Hobbs Act robbery is not a crime of violence because the necessary
“substantial step” did “not require the government to prove that the defendant used,
attempted to use, or even threatened to use force against another person or his property.”
Taylor, 596 U.S. at 851. Although that holding may have implications for attempted
carjacking, it has no bearing on completed carjacking. No part of Evans depended on a
“substantial step,” which is not an element of completed carjacking. Taylor itself
disclaimed any relevance to completed Hobbs Act robbery, let alone completed carjacking.
See id. Furthermore, our decision in Evans relied on standard interpretive principles, 848
F.3d at 246–47, and United States v. Green rejected much the same efforts to undermine
circuit precedent after Taylor that appellants advance here, see 67 F.4th 657, 669–70 (4th
Cir. 2023).
Other circuits agree that federal carjacking remains a crime of violence after Taylor.
The Sixth Circuit held that “completed carjacking” was still categorically a crime of
violence after Taylor because a conviction “requires that [the defendant] actually used
force or intimidation to accomplish his goal.” United States v. Jackson, 2023 WL 8847859,
at *5 (6th Cir. Dec. 21, 2023). Taylor’s concerns about attempted crimes “[did] not apply.”
Id. And the Eighth Circuit reaffirmed its precedent that carjacking is categorically a crime
of violence, rejecting the argument that carjacking by “intimidation” did not categorically
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involve the use of threatened force in light of the Court’s language in Taylor about attempt.
United States v. Shields, 63 F.4th 1145, 1146–47 (8th Cir. 2023).
Under the modified categorical approach applicable to divisible statutes, we are
permitted to “consult” the “same record documents” that we took a “peek” at earlier.
Jackson, 32 F.4th at 286–87 (citing Shepard v. United States, 544 U.S. 13, 21–23 (2005)).
We consult them to determine which of the two crimes proscribed by the carjacking statute,
completed or attempted carjacking, appellants were convicted of.
It is clear that appellants were convicted of completed carjacking. Count 1 of the
indictment charged that Fulks and Basham “did take . . . a motor vehicle.” J.A. 148. After
Judge Anderson reiterated this language from the indictment to Fulks during his plea
hearing, J.A. 194, and described one of the elements as “you took a motor vehicle,” J.A.
195, Fulks pleaded guilty, J.A. 353–55. As for Basham, the jury instructions stated that “to
find the defendant guilty of this charge, Count 1 [carjacking resulting in death], the
Government must prove” that “the defendant took a motor vehicle.” J.A. 609. The jury
unanimously found him guilty on Count 1. J.A. 487. We agree with the district court that
“[n]one of the above documents indicate attempted carjacking was ever contemplated as
an alternate means by which either defendant could be convicted.” J.A. 609.
We have easily “isolated the specific crime underlying” appellants’ Count 1
convictions as completed carjacking. See Allred, 942 F.3d at 648. We know that completed
carjacking is categorically a crime of violence under the § 924(c) force clause. Appellants’
carjacking convictions under Count 1 therefore qualify as a predicate crime of violence.
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E.
We reject one last appeal appellants make to recent Supreme Court precedent. We
disagree that our holding about completed carjacking being a crime of violence conflicts
with the Court’s decision in Borden v. United States, 593 U.S. 420 (2021). The culpable
mental state required to commit carjacking under § 2119 is higher than recklessness.
In Borden, the Court held that a criminal offence that “requires only a mens rea of
recklessness” cannot qualify as a predicate “violent felony” under the Armed Career
Criminal Act. 593 U.S. at 423 (plurality opinion). It interpreted the phrase “use of physical
force against the person of another” in the ACCA’s definition of “violent felony” to require
“that the perpetrator direct his action at, or target, another individual.” Id. at 429. Because
“[r]eckless conduct is not aimed in that prescribed manner,” it does not qualify. Id.
Assuming that Borden’s holding applies to the similar “crime of violence” definition
in § 924(c)(3)’s force clause, appellants argue that carjacking under § 2119 can be
committed recklessly and is therefore not a crime of violence. They point to the
combination of two features of the carjacking statute. First, that carjacking can be
committed “by intimidation.” Second, that under the Supreme Court’s interpretation of
carjacking’s mens rea requirement in Holloway v. United States, 526 U.S. 1 (1999), a
defendant need only have the conditional intent to cause death or injury should it be
necessary to take possession of the car. “Together,” appellants argue, “these aspects of the
carjacking statute mean that the offense may be committed by a carjacker who recklessly
instills fear in his victim” without ever possessing a “present intent to inflict [physical]
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harm.” Opening Brief at 23–24. We disagree with appellants’ interpretation of the
carjacking statute and relevant precedent.
First, we return to the statute’s text. A conviction under § 2119 requires proof of
“the intent to cause death or serious bodily harm” when stealing a motor vehicle “by force
and violence or by intimidation.” 18 U.S.C. § 2119. Unlike the Tennessee law in Borden
that expressly criminalized “recklessly committing an assault,” Borden, 593 U.S. at 424
(alterations omitted), there is nothing here about reckless conduct. In fact, the language in
§ 2119 hooks up almost perfectly with the § 924(c)(3) force clause.
We next consider the Supreme Court’s interpretation of § 2119’s intent requirement
in Holloway. The Court held that this “wrongful intent” can be unconditional or
conditional. Holloway, 526 U.S. at 8–9. Intent is unconditional when a defendant intends
to “kill or harm” the victim even if it is unnecessary to take the motor vehicle. Id. at 7–8.
Intent is conditional when the defendant “at the precise moment he demanded or took
control over the car ‘by force and violence or by intimidation’” had the “intent to seriously
harm or kill the driver if necessary to steal the car.” Id. at 8, 12. The Court provided an
example of conditional intent: a person “points a gun at a driver” and has already “decided
to pull the trigger if the driver does not comply with a demand for the car keys.” Id. at 6.
At that moment, this person “plainly does have the forbidden intent.” Id. at 7.
Given the requirement that someone must have the “intent to seriously harm or kill
the driver,” unconditionally or conditionally, “at the precise moment he demanded or took
control over the car,” we do not see how one could be convicted under § 2119 with a
reckless mental state. Worried about “reckless drivers” being deemed armed career
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criminals, the plurality in Borden ruled out reckless mens rea offenses from ACCA’s
violent felony definition because “reckless conduct” is not “direct[ed]” or “target[ed]” at
“another individual.” Borden, 593 U.S. at 429. That concern does not apply here. We agree
with the Sixth Circuit that § 2119’s “specific intent provision requires that the perpetrator
‘direct his action at, or target, another individual,’ and satisfies Borden’s requirement of a
purposeful or knowing mens rea.” United States v. Jackson, 2023 WL 8847859, at *5 (6th
Cir. Dec. 21, 2023). If someone intends to kill a driver if she refuses to hand over the car
keys, he has already committed to directing deadly force against that individual. That is
not reckless disregard of some generalized risk of harm. Rather the carjacker has made a
deliberate choice to use force against a specific person if some external condition occurs.
Section 2119 requires a mens rea of a specific “intent to seriously harm or kill”
directed at the driver “at the precise moment” of taking the car. Applying Holloway, our
court has already rejected “generalized recklessness” as insufficient to prove the required
“specific intent, conditional or otherwise, to kill or seriously harm.” United States v. Bailey,
819 F.3d 92, 98 (4th Cir. 2016). We have also held that “intimidation” requires the
“threatened use of violent physical force” through “actions” that the defendant “knew . . .
were objectively intimidating.” See Evans, 848 F.3d at 247; United States v. McNeal, 818
F.3d 141, 155 (4th Cir. 2016) (emphasis added); see also United States v. Felder, 993 F.3d
57, 79–80 (2d Cir. 2021); United States v. Jackson, 918 F.3d 467, 485–86 (6th Cir. 2019).
These requirements map squarely onto the force clause defining a crime of violence. The
elements of completed carjacking under § 2119 leave no room for conviction on the basis
of a reckless mens rea.
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Other circuits agree with this view. The Eleventh Circuit concluded that even if its
precedent did not preclude the same argument that appellants raise here, “the mens rea for
federal carjacking is not recklessness, as it requires intent to kill or cause serious bodily
injury, and, thus, Borden would still not support his claim.” United States v. Douglas, 2024
WL 939713, at *2 (11th Cir. Mar. 5, 2024). So too have courts in the Third and Sixth
Circuits. See United States v. Ruffin, 2024 WL 193922 (W.D. Pa. Jan. 18, 2024); United
States v. Jackson, 2023 WL 8847859 (6th Cir. Dec. 21, 2023).
When consulting the record documents under the modified categorical approach,
we are overwhelmed by the intentionality and purpose that drove appellants’ horrific acts.
Fulks and Basham executed a deliberate, knowing, and intelligent mission to visit
unconscionable cruelty upon their victims. Nothing about this was reckless.
III.
Appellants’ § 924 firearms convictions required at least one valid predicate crime
of violence. Completed carjacking is a crime of violence, but the government concedes that
kidnapping is not. Response Brief at 27; Oral Arg. at 24:09–24:13. Appellants now argue
that their § 924 convictions are invalid because they were not expressly predicated on their
carjacking convictions. Reading the facts here, the idea that these convictions rested solely
on kidnapping, and are therefore invalid, is untenable. We agree with the district court that
appellants’ § 924 convictions properly rested on their carjacking convictions.
Because Fulks pleaded guilty and Basham was convicted by a jury, we address them
separately. In both cases, our precedent precludes appellants’ arguments.
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Fulks pleaded guilty to all counts charged in the indictment. Count 1 charged him
with carjacking resulting in death, and Count 2 with kidnapping resulting in death. Counts
5 and 6 charged Fulks with using, and conspiring to use, a firearm in relation to “crimes of
violence . . . as charged in Counts 1 and 2.” J.A. 148–49, 157–58.
Fulks argues that his plea to Counts 5 and 6 was predicated on kidnapping alone.
He contends that the district court failed to follow our circuit’s rule that “when a defendant
pleads guilty to a formal charge in an indictment which alleges conjunctively the
disjunctive components of a statute, the rule is that the defendant admits to the least serious
of the disjunctive statutory conduct.” United States v. Chapman, 666 F.3d 220, 228 (4th
Cir. 2012) (citing United States v. Vann, 660 F.3d 771, 775 (4th Cir. 2011) (en banc)).
But our circuit has established that in this context, “a § 924(c) conviction based on
one valid and one invalid predicate offense” is valid when the “defendant pleads guilty to
a § 924(c) offense expressly based on the valid and invalid predicate.” United States v.
Crawley, 2 F.4th 257, 263 (4th Cir. 2021). “To determine which predicate offenses underlie
a § 924(c) conviction obtained by a guilty plea, we look to the critical record documents”
like the indictment and the plea colloquy. United States v. Smith, 2022 WL 16919270, at
*2 (4th Cir. Nov. 14, 2022) (citing Crawley, 2 F.4th at 263–64, 267). When record
documents like the indictment and plea hearing transcript “reference[] a valid Section
924(c) predicate . . . and an invalid one,” United States v. Graham, 67 F.4th 218, 221 (4th
Cir. 2023), and there is a sufficient factual basis to find the defendant guilty on both
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predicates, the § 924(c) guilty plea is expressly based on both predicates and is therefore
valid, Crawley, 2 F.4th at 264–65.
The record here shows that Fulks’s guilty plea to the § 924 charges was expressly
predicated on both carjacking and kidnapping. The indictment indicated that the § 924
charges were predicated on two “crimes of violence” and specified that those predicates
were the carjacking count and the kidnapping count. J.A. 157–58. During the plea colloquy
Judge Anderson reiterated this language to Fulks. J.A. 208–10. He emphasized that for
“each of the eight counts of the indictment . . . I have to establish on the record not only
that the defendant knows what the charges are” but “that he is in fact guilty of what he is
charged with doing.” J.A. 228–29. Fulks then stipulated to the facts recited in the report of
his FBI interview. J.A. 229. He offered sufficient facts to support both the § 924 charges
and the substantive carjacking and kidnapping charges by describing in detail the duo’s
simultaneous carjacking and kidnapping of Donovan while carrying a gun. See J.A. 248–
50. Fulks then pleaded guilty to both of the substantive counts and to the § 924 charges
predicated on those counts. J.A. 353–55.
We therefore agree with the district court that Fulks’s § 924 convictions are valid.
Fulks “had no reason to expect—and we decline to grant him—a windfall based on later
developments in the law that would invalidate one of the two predicates supporting his
§ 924(c) conviction.” Crawley, 2 F.4th at 267.
A jury found Basham guilty of both the substantive counts and the § 924 counts.
Appellants argue that because the jury’s verdict on Counts 5 and 6 “did not specify whether
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it found use of a firearm in furtherance of Count 1, Count 2, or both,” it is possible that the
jury did not convict based on the valid carjacking predicate and that the § 924 convictions
are therefore invalid. Opening Brief at 35–36. Our precedent forecloses this argument.
On collateral review of this issue, the “harmless-error standard” applies. United
States v. Said, 26 F.4th 653, 660 (4th Cir. 2022). A § 924(c) conviction is valid “even if
the jury based its verdict on an invalid predicate, so long as the jury also relied on a valid
predicate.” United States v. Tipton, 95 F.4th 831, 844 (4th Cir. 2024) (quoting Said, 26
F.4th at 659). And “where the verdict form did not specify which of multiple predicates
the jury relied upon in finding the defendant guilty of a § 924(c) offense, the conviction
will be upheld unless the defendant shows ‘more than a reasonable possibility’ that the
conviction rested solely on an invalid predicate offense.” Id. (quoting Said, 26 F.4th at
661–62). “Mere uncertainty,” “speculation,” or “ambiguity” as to which predicate the jury
relied on are not enough. Id. at 851; Said, 26 F.4th at 660–62; see also United States v. Ali,
991 F.3d 561, 575 (4th Cir. 2021). We consider the allegations, the verdicts on the
substantive predicate offenses, and the evidence at trial. See Tipton, 95 F.4th at 851;
Draven, 77 F.4th at 319; Said, 26 F.4th at 663; see also Ali, 991 F.3d at 575–76. Moreover,
if the trial evidence shows that the two predicate offenses were “inextricably intertwined,”
any error was harmless. United States v. Reed, 48 F.4th 1082, 1090–91 (9th Cir. 2022); see
Graham, 67 F.4th at 223 (approving this inquiry in context of a jury verdict).
There is no reasonable possibility that the jury based its § 924 verdicts solely on the
kidnapping predicate. At trial, Basham “admitted culpability in the carjacking and
kidnapping” during which he had a firearm. See Basham, 561 F.3d at 312, 315. The
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government introduced video surveillance footage from the Walmart parking lot showing
the “carjacking and kidnapping of Donovan.” Id. at 315. The jury then convicted Basham
of both carjacking and kidnapping Donovan in that Walmart parking lot. See id. And the
§ 924 charges were explicitly predicated on both carjacking and kidnapping. We agree with
the district court that the carjacking and the kidnapping were “intertwined and
coextensive.” J.A. 614. They covered the same time period, location, and weapon. J.A.
614–15; see Said, 26 F.4th at 662 n.15. Basham’s own counsel at trial told the jury, “if you
find Mr. Basham guilty of Counts 1 and 2, that, basically, satisfies [Count 6].” J.A. 473.
Basham has not shown a reasonable possibility that the jury’s § 924 verdict relied solely
on the kidnapping predicate. His convictions are valid.
There is simply no question that Alice Donovan was carjacked and kidnapped at the
same time. Appellants pursued her car in a parking lot. Basham leaped into and took control
of the car with Donovan still sitting inside. They kept her in the car under the threat of a
0.22 revolver. They drove away and then raped her in the back seat. See J.A. 248–53.
It is nonsensical to claim that kidnapping was the sole predicate offense because the
carjacking and the kidnapping happened in one fell swoop. The time, the location, and the
victim were so intertwined that one cannot separate one offense from the other. It is
unreasonable to think that the jury in Basham’s trial or Fulks in his plea hearing
disentangled the carjacking and kidnapping into separate incidents. Indeed, the juries’
special verdict forms in the separate death penalty proceedings for Fulks and Basham
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confirm that intuition. Both juries found that the kidnapping occurred during the
carjacking. See J.A. 448–50, 563–65.
We hold that completed carjacking is a crime of violence and that appellants’ § 924
convictions were validly predicated on their carjacking convictions.
IV.
Fulks and Basham carjacked Alice Donovan, kidnapped her in her own car, took
her to a secluded cemetery, raped her, and killed her. Now they argue with supreme irony
that they committed no “crime of violence.” They cling to the categorical approach as a
life raft, asking us to ignore all of these facts. At a certain point in time, however, reality
has a way of breaking through. The reality here is that appellants visited terror upon woman
after woman. Appellants insist that we wrap ourselves in a cocoon and take leave of that
reality. But the law does not require such isolation here. In fact, the acts of Congress, and
Supreme Court and circuit precedent, demand the rejection of appellants’ contentions.
Believing that law confirms, not contradicts, the obvious character of the conduct at issue,
we affirm the district court’s denial of Fulks and Basham’s latest § 2255 motion.
AFFIRMED