United States v. Richard Tipton

95 F.4th 831

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 18, 2024
• Docket: 22-005
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-5

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICHARD TIPTON, a/k/a Whittey,

Defendant - Appellant.

No. 23-1

JAMES H. ROANE, JR., a/k/a J.R.,

Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. David J. Novak, District Judge. (3:92-cr-00068-DJN-1; 3:22-cv-00099-DJN; 3:92-cr-00068-DJN-3; 3:22-cv-00098-DJN) USCA4 Appeal: 22-5 Doc: 49 Filed: 03/18/2024 Pg: 2 of 34

Argued: September 22, 2023 Decided: March 18, 2024

Before WILKINSON, KING, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Wilkinson and Judge Rushing joined.

ARGUED: 22-5: Gerald Wesley King, Jr., FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: John G. Baker, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina; Jeffrey L. Ertel, FEDERAL DEFENDER PROGRAM, INC., Atlanta, Georgia, for Appellant. Jessica D. Aber, United States Attorney, Joseph Attias, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

ARGUED: 23-1: Julia Welsh, FEDERAL COMMUNITY DEFENDER OFFICE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, Philadelphia, Pennsylvania, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Joanne Heisey, Assistant Federal Public Defender, FEDERAL COMMUNITY DEFENDER OFFICE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, Philadelphia, Pennsylvania, for Appellant. Jessica D. Aber, United States Attorney, Joseph Attias, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

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KING, Circuit Judge:

By this consolidated opinion, we resolve the separate appeals of defendants Richard

Tipton (Appeal No. 22-5) and James Roane, Jr. (Appeal No. 23-1). In 1993, Tipton and

Roane were each convicted and sentenced to death and multiple years in prison as the result

of a drug-related enterprise that also involved firearms, murders, and other racketeering

activity they pursued and carried out in eastern Virginia. After mostly unavailing direct

appeals, see United States v. Tipton, 90 F.3d 861 (4th Cir. 1996), and unsuccessful

collateral attacks on their multiple sentences, see United States v. Roane, 51 F.4th 541,

544-45 (4th Cir. 2022) (recounting extensive litigation history), Tipton and Roane persist

in their pursuits of post-conviction relief.

In light of recent Supreme Court decisions, Tipton and Roane now challenge the six

30-year-old sentences that stem from their firearm-related 18 U.S.C. § 924(c) convictions

in 1993. Of importance here, § 924(c) criminalizes using or carrying a firearm “during and

in relation to,” or possessing a firearm “in furtherance of,” a federal “crime of violence or

drug trafficking crime.” See 18 U.S.C. § 924(c)(1)(A).1 In 2019, the Supreme Court ruled

in United States v. Davis, 139 S. Ct. 2319 (2019), that the statutory definition of a “crime

of violence” under § 924(c)(3)(B) — known as the “residual clause” — is

1 A conviction under § 924(c) requires proof of what the courts call a “predicate offense,” i.e., a “crime of violence or drug trafficking crime.” When Tipton and Roane were convicted in 1993, the authorized penalties for a § 924(c) conviction ranged from five years to life — in addition to any penalty for the predicate offense itself — depending on, e.g., the type of weapon used or carried in the commission of the predicate offense. See 18 U.S.C. § 924(c)(1) (1993).

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unconstitutionally vague. Consequently, a qualifying “crime of violence” must now satisfy

§ 924(c)(3)(A), i.e., the “force clause.” On the heels of Davis, in its 2021 decision in

Borden v. United States, 141 S. Ct. 1817 (2021), the Court recognized that a “violent

felony,” as defined by the force clause of 18 U.S.C. § 924(e)(2)(B)(i), requires proof of a

mens rea that is greater than recklessness. And we have since deemed that mens rea

requirement to be applicable to a qualifying “crime of violence” under § 924(c)(3)(A). See

United States v. Jackson, 32 F.4th 278, 283 & n.4 (4th Cir. 2022).

In January 2022, following the Supreme Court’s decisions in Davis and Borden, our

Court authorized Tipton and Roane to each seek post-conviction relief by filing a

successive 28 U.S.C. § 2255 motion in the district court in eastern Virginia. Thereafter,

Tipton and Roane unsuccessfully sought § 2255 relief — from their 1993 sentences under

§ 924(c) — in the district court proceedings that underlie these appeals. See United States

v. Tipton, No. 3:92-cr-00068-DJN-1 (E.D. Va. Oct. 6, 2022), ECF No. 186 (the “Tipton

Opinion”); United States v. Roane, No. 3:92-cr-00068-DJN-3 (E.D. Va. Nov. 3, 2022),

ECF No. 190 (the “Roane Opinion”). In denying Tipton’s and Roane’s requests for § 2255

relief, the district court also denied their separate and related requests for certificates of

appealability.

In April 2023, Tipton and Roane petitioned this Court for certificates of

appealability, and those petitions were each granted. See In re Tipton, No. 22-5 (4th Cir.

Apr. 26, 2023), ECF No. 25; In re Roane, No. 23-1 (4th Cir. Apr. 13, 2023), ECF No. 21.

Although their efforts to secure appellate relief were briefed and argued before us in

September 2023 as separate appeals, Tipton and Roane identify and dispute several

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identical and closely related factual and legal underpinnings of their § 924(c) sentences.

Relying on Davis and Borden, they each maintain that the predicate offenses used to

support their various firearm-related § 924(c) convictions no longer qualify as “crime[s] of

violence” under § 924(c)(3).

In these circumstances, we are satisfied to jointly dispose of these related appeals

by way of this consolidated opinion. As explained below, we reject Tipton’s and Roane’s

respective challenges to their § 924(c) sentences and affirm the contested judgments of the

district court.

I.

A.

In the comprehensive 1996 opinion largely rejecting Tipton’s and Roane’s direct

appeals, our distinguished former colleague Judge Phillips carefully summarized the

relevant facts underlying the joint 1992 and 1993 prosecutions and jury trial of Tipton and

Roane in Richmond. See Tipton, 90 F.3d at 868-69. Because we are unable to improve on

the comprehensive factual summary compiled and recited by Judge Phillips, that summary

is hereby adopted and set forth in haec verba. As carefully related in his panel decision:

Recounted in summary form and in the light most favorable to the Government, the core evidence revealed the following. Tipton, Roane, and Cory Johnson were principal “partners” in a substantial drug-trafficking conspiracy that lasted from 1989 through July of 1992. The conspiracy’s operations began in Trenton, New Jersey where Johnson and Tipton, both from New York City, became members. In August of 1990, the conspiracy expanded its operations to Richmond, Virginia where Roane joined the conspiracy in November of 1991. The Trenton-based operation came to an end on June 4, 1991 when police confiscated a large quantity of crack cocaine

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and firearms. In late 1991, the conspiracy’s operations were expanded from the Central Gardens area of Richmond to a second area in Richmond called Newtowne.

During the period of the conspiracy’s operation, its “partners”, including appellants, obtained wholesale quantities of powdered cocaine from suppliers in New York City, converted it by “cooking” into crack cocaine, then packaged it, divided it among themselves, and distributed it through a network of 30-40 street level dealers, “workers.” Typically, the appellants and their other partners in the conspiracy’s operations took two- thirds of the proceeds realized from street-level sales of their product.

Over a short span of time in early 1992, Tipton, Cory Johnson, and Roane were variously implicated in the murders of ten persons within the Richmond area — all in relation to their drug-trafficking operation and either because their victims were suspected of treachery or other misfeasance, or because they were competitors in the drug trade, or because they had personally offended one of the “partners.”

On January 4, 1992, Tipton and Roane drove Douglas Talley, an underling in disfavor for mishandling a drug transaction, to the south side of Richmond. Once there, Roane grabbed Talley from the rear while Tipton stabbed him repeatedly. The attack lasted three to five minutes and involved the infliction of eighty-four stab wounds to Talley’s head, neck, and upper body that killed him.

On the evening of January 13, 1992, Tipton and Roane went to the apartment of Douglas Moody, a suspected rival in their drug-trafficking area, where Tipton shot Moody twice in the back. After Moody fled by jumping through a window, both Tipton and Roane pursued. Roane, armed with a military-style knife retrieved from an apartment where the knife was kept for co-conspirator Curtis Thorne, caught up with Moody in the front yard of the apartment where he stabbed him eighteen times, killing him.

On the night of January 14, 1992, Roane, Cory Johnson, and a third person retrieved a bag of guns that they had left at an apartment earlier that day. Roane then located Peyton Johnson, another rival drug dealer, at a tavern. Shortly after Roane left the tavern, Cory Johnson entered with another person and fatally shot Peyton Johnson with a semi-automatic weapon.

On January 29, 1992, Roane pulled his car around the corner of an alley, got out of the vehicle, approached Louis Johnson, whom appellant

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Johnson thought had threatened him while acting as bodyguard for a rival dealer, and shot him. Cory Johnson and co-conspirator Lance Thomas then got out of Roane’s car and began firing at Louis Johnson. As Louis Johnson lay on the ground, either Cory Johnson or Thomas shot him twice at close range. Louis Johnson died from some or all of these gunshot wounds.

On the evening of February 1, 1992, Cory Johnson and Lance Thomas were told that Roane had gone to the apartment of Torrick Brown, with whom Roane had been having trouble. Johnson and Thomas armed themselves with semiautomatic weapons and went to the apartment where they joined appellant Roane outside. The three then knocked on Brown’s door and asked his half-sister, Martha McCoy, if Brown was there. She summoned Brown to the door and Cory Johnson, Roane, and Thomas opened fire with semi- automatic weapons, killing Brown and critically wounding McCoy.

In late January, 1992, after being threatened by Cory Johnson for not paying for a supply of crack cocaine, Dorothy Armstrong went to live with her brother, Bobby Long. On February 1, Cory Johnson learned from Jerry Gaiters the location of Long’s house. Thereafter, Tipton and an unidentified “young fellow” picked up Gaiters and Cory Johnson who were then driven by Tipton to a house where the group obtained a bag of guns. After dropping off the unidentified third party, the group proceeded to Long’s house. Upon arriving at Long’s house, Cory Johnson and Gaiters got out of the car and approached the house. While Tipton waited in the car, Cory Johnson and Gaiters went to the front door. When Long opened the door, Cory Johnson opened fire, killing both Dorothy Armstrong and one Anthony Carter. Bobby Long fled out the front door, but was fatally shot by Cory Johnson in the front yard.

In early February 1992, Cory Johnson began to suspect that Linwood Chiles was cooperating with the police. On February 19, 1992, Johnson borrowed Valerie Butler’s automobile and arranged to meet with Chiles. That night, Chiles, Curtis Thorne, and sisters Priscilla and Gwen Greene met Cory Johnson and drove off together in Chiles’s station wagon. Chiles parked the car in an alley, and Tipton soon drove in behind it in another car, got out, and came up alongside the stationwagon. With Tipton standing by, Cory Johnson told Chiles to place his head on the steering wheel and then shot Chiles twice at close range. Additional shots were fired, killing Thorne and critically wounding both of the Greene sisters. The autopsy report indicated that Thorne had been hit by bullets fired from two different directions.

Id.

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B.

1.

On April 24, 1992, as a result of the above-recited series of firearm-related murders

and killings and the associated rampage of other racketeering activity, Tipton, Roane, and

five coconspirators were jointly indicted in the Eastern District of Virginia in the operative

33-count Second Superseding Indictment (the “Indictment”). Tipton was charged with 29

separate offenses. At issue in Tipton’s present appeal are the sentences imposed on two of

his five 18 U.S.C. § 924(c) charges (Counts Twenty and Twenty-Six) for knowingly,

willfully, and unlawfully using a firearm during and in relation to a “crime of violence” or

a “drug trafficking crime.” Those charges were also brought pursuant to § 2 of Title 18,

which imposes principal liability on a defendant for aiding, abetting, or causing a federal

offense. Of the other 24 charges against Tipton, 13 were alleged as predicate offenses

underlying his § 924(c) charges in Counts Twenty and Twenty-Six. The 13 alleged

predicate offenses for Counts Twenty and Twenty-Six against Tipton are:

• Five capital murders — in furtherance of a continuing criminal enterprise (“CCE murder”) — in Counts Seventeen, Eighteen, Nineteen, Twenty-Four, and Twenty-Five, in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2;

• Five charges of murder — as a violent crime in aid of racketeering activity (“VICAR murder”) — in Counts Twenty-One, Twenty-Two, Twenty-Three, Twenty-Seven, and Twenty-Eight, in violation of 18 U.S.C. § 1959 and 18 U.S.C. § 2;

• Two counts of maiming — as a violent crime in aid of racketeering activity (“VICAR maiming”) — in Counts Twenty-Nine and Thirty, in violation of 18 U.S.C. § 1959 and 18 U.S.C. § 2; and

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• A single count of conspiring to possess cocaine base with intent to distribute (“drug distribution conspiracy”) in Count One, in violation of 21 U.S.C. § 846.

For his part, Roane was charged in 15 counts of the Indictment. At issue in Roane’s

appeal are the four sentences stemming from his four firearm-related 18 U.S.C. § 924(c)

charges: Counts Six, Nine, Twelve, and Fifteen. Like Tipton’s, Roane’s § 924(c) charges

were also brought under 18 U.S.C. § 2. Of the other 11 charges against Roane, nine were

alleged as predicate offenses underlying his four § 924(c) charges. Those nine predicate

offenses are: three CCE murder charges (Counts Five, Eight, and Eleven); four VICAR

murder charges (Counts Seven, Ten, Thirteen, and Fourteen); a VICAR maiming charge

(Count Sixteen); and the drug distribution conspiracy charge (Count One).

2.

In February 1993, following a month-long trial before the highly respected Judge

Spencer in Richmond, the jury found Tipton and Roane guilty of multiple offenses.

Relevant here, Tipton was convicted on the two firearm-related § 924(c) charges in Counts

Twenty and Twenty-Six.2 As alleged in the Indictment, Count Twenty was supported by

seven predicate offenses: the CCE murders of victims Bobby Long, Anthony Carter, and

Dorothy Mae Armstrong (Counts Seventeen, Eighteen, and Nineteen); the VICAR murders

2 As related above, Tipton was indicted on five § 924(c) charges. The Court dismissed Count Twelve on the Government’s motion, and the jury acquitted Tipton of the § 924(c) charges in Counts Six and Fifteen. Thus, only the two sentences resulting from Tipton’s § 924(c) convictions on Counts Twenty and Twenty-Six are being challenged herein.

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of those same three victims (Counts Twenty-One, Twenty-Two, and Twenty-Three); and

the drug distribution conspiracy (Count One). Count Twenty-Six also was supported by

the Count One drug distribution conspiracy, as well as six other predicate offenses: the

CCE murders of victims Curtis Thorne and Linwood Chiles (Counts Twenty-Four and

Twenty-Five); the VICAR murders of those two victims (Counts Twenty-Seven and

Twenty-Eight); and the VICAR maiming of Priscilla and Gwendolyn Greene (Counts

Twenty-Nine and Thirty).

Notably, the verdict form did not specify which predicate or predicates the jury

relied upon in finding Tipton guilty of the two § 924(c) offenses. In any event, the jury

found Tipton guilty of all 13 of the alleged predicate offenses.

On June 1, 1993, the district court, consistent with the jury’s recommendations,

imposed three separate death sentences on Tipton for two of the aforementioned CCE

murders — those of victims Curtis Thorne and Linwood Chiles — plus the Count Three

CCE murder of victim Douglas Talley. For the three other CCE murders, and for his six

VICAR murders (the five aforementioned VICAR murders plus the Count Four VICAR

murder of Douglas Talley), Tipton received nine life sentences, to run concurrently. For

his two § 924(c) convictions, Tipton received a five-year sentence on Count Twenty and a

20-year sentence on Count Twenty-Six, running consecutively to his life sentences.

Roane, by contrast, was convicted on four firearm-related § 924(c) charges (Counts

Six, Nine, Twelve, and Fifteen), also without a predicate or predicates specified on the

verdict form. Relevant to Counts Six, Nine, and Twelve, the jury found Roane guilty of

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the following predicate offenses: the CCE murders of victims Douglas Moody, Peyton

Johnson, and Louis Johnson (Counts Five, Eight, and Eleven); the corresponding VICAR

murders of those three victims (Counts Seven, Ten, and Thirteen); and the drug distribution

conspiracy (Count One). Pertinent to Count Fifteen, the jury found Roane guilty of the

predicate offenses of the Count One drug distribution conspiracy, plus the VICAR murder

of Torrick Brown (Count Fourteen) and the VICAR maiming of Martha McCoy (Count

Sixteen).

Roane received a sentence of five years in prison on Count Six. On Counts Nine,

Twelve, and Fifteen, he received separate 20-year prison terms, to run concurrently. Those

sentences run consecutively to certain other sentences imposed on Roane, however,

including the six life sentences imposed for the CCE murders of Peyton and Louis Johnson

(Counts Eight and Eleven) and for the VICAR murders of Douglas Moody, Peyton

Johnson, Louis Johnson, and Torrick Brown (Counts Seven, Ten, Thirteen, and Fourteen).

Roane received his only death sentence for the CCE murder of Douglas Moody (Count

Five).

C.

With the foregoing recitation in mind, we turn to a brief summary of some of

Tipton’s and Roane’s past efforts to secure post-conviction relief.

• In 1993, Tipton and Roane directly appealed their respective convictions and sentences. In 1996, Judge Phillips’s opinion affirmed their convictions and sentences, except for the convictions and sentences on the Count One drug distribution conspiracy. Those convictions were vacated under the Double Jeopardy Clause. See Tipton, 90 F.3d at 891.

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• On June 1, 1998, after their unsuccessful direct appeals, Tipton and Roane each sought relief under 28 U.S.C. § 2255, filing motions in the district court to vacate their sentences.3 The Government sought summary judgment on each of those initial § 2255 motions. The court granted the summary judgment request of the Government, except for two claims interposed by Roane, on which the court granted relief. See United States v. Tipton, No. 3:92-cr-00068-JRS (E.D. Va. May 1, 2003), ECF No. 897. On appeal from that decision, we affirmed the district court’s rulings in favor of the Government and reversed the relief awarded to Roane. See United States v. Roane, 378 F.3d 382 (4th Cir. 2004).

• After their 1998 motions for collateral relief under § 2255 had been denied, but prior to the motions presented here, Tipton and Roane repeatedly and unsuccessfully sought authorizations to file successive § 2255 motions, pursuant to 28 U.S.C. § 2244.

• For example, Tipton filed three unsuccessful motions for authorization to file successive § 2255 motions to invalidate his enhanced sentences under 18 U.S.C. § 924(c), each of which was denied. See In re Tipton, No. 13-8 (4th Cir. Oct. 29, 2013), ECF No. 14; In re Tipton, No. 16-7 (4th Cir. June 6, 2016), ECF No. 13; In re Tipton, No. 19-2 (4th Cir. May 14, 2019), ECF No. 9.

• Similarly, Roane filed § 2255 authorization requests in 2009 and 2016, each of which was denied. See In re Roane, No. 09- 8 (4th Cir. July 13, 2010), ECF No. 24; In re Roane, No. 16-6 (4th Cir. June 6, 2016), ECF No. 13.

• In addition to their various unsuccessful § 2255 motions, Tipton and Roane filed separate motions in the district court in 2020 under § 404 of the First Step Act, requesting the court to reduce their respective sentences on their CCE murder and drug distribution convictions. The

3 A brief explanation of § 2255 of Title 28 is warranted. Section 2255 was adopted to establish a statutory avenue for federal prisoners to seek habeas corpus relief, and it provides “the same rights federal prisoners previously enjoyed under the general habeas statutes.” See Jones v. Hendrix, 599 U.S. 465, 489 (2023); see also Davis v. United States, 417 U.S. 333, 343 (1974) (“[Section] 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.”).

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district court declined to reduce those sentences, and we affirmed. See United States v. Roane, 51 F.4th 541 (4th Cir. 2022).

II.

Having summarized the background of Tipton’s and Roane’s prosecutions and their

steadfast efforts to secure relief from their convictions and sentences, we return to the 28

U.S.C. § 2255 motions underlying these appeals. In that regard, Tipton and Roane

principally maintain that the predicate offenses for their 18 U.S.C. § 924(c) convictions no

longer qualify as “crime[s] of violence” under § 924(c)(3), relying on the Supreme Court’s

recent decisions in United States v. Davis, 139 S. Ct. 2319 (2019), and Borden v. United

States, 141 S. Ct. 1817 (2021).

In defining a “crime of violence,” § 924(c)(3) of Title 18 spells out the “force

clause” and the “residual clause.” The force clause provides that a “crime of violence” is

a felony that “has as an element the use, attempted use, or threatened use of physical force

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

the residual clause, a “crime of violence” could instead be a 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.” Id. § 924(c)(3)(B).

In June 2019, the Supreme Court rendered its Davis decision and ruled that the

definition of a “crime of violence” in § 924(c)(3)(B), i.e., the residual clause, is

unconstitutionally vague under due process and separation of powers principles. See 139

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S. Ct. at 2335-36. As a result of Davis, a predicate “crime of violence” must now satisfy

§ 924(c)(3)(A), i.e., the force clause, in order to properly support a § 924(c) conviction.

Two years after Davis, in its Borden decision of June 2021, the Court made a statutory

interpretation ruling and recognized that a qualifying “violent felony” under the force

clause of 18 U.S.C. § 924(e)(2)(B)(i) requires a mens rea that is greater than recklessness.

See 141 S. Ct. at 1825. And we have since extended that ruling to a “crime of violence”

under § 924(c). See United States v. Jackson, 32 F.4th 278, 283 & n.4 (4th Cir. 2022).

In 2020, Tipton and Roane separately applied to this Court for authorizations to file

their latest § 2255 motions, at that time seeking relief on the basis of the Supreme Court’s

Davis decision only.4 In January 2022, following the Borden decision, we granted Tipton’s

and Roane’s motions for authorization. We then transferred their § 2255 motions to the

In February 2022, pursuant to our authorizations, Tipton and Roane filed their 28

U.S.C. § 2255 motions in the district court, which they sought to amend to rely not only on

the 2019 Davis decision, but also on the 2021 Borden decision. The district court granted

the requests to amend.

The district court subsequently denied § 2255 relief, however, for reasons explained

in the relevant opinions — the Tipton Opinion of October 6, 2022, and the Roane Opinion

4 After Tipton and Roane had initially applied to this Court in 2020 for authorization to proceed with successive § 2255 motions on the basis of Davis, we held those motions in abeyance awaiting other proceedings.

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of November 3, 2022 — ruling that each of Tipton’s and Roane’s challenged 18 U.S.C.

§ 924(c) convictions relies on at least one valid predicate offense. Without addressing all

of the Indictment’s predicates for the § 924(c) charges, the court explained that even if one

or more of the predicates were invalid, Tipton’s and Roane’s § 924(c) convictions would

yet be legally sound, in that “the jury also relied on a valid predicate.” See Tipton Opinion

14 (quoting United States v. Said, 26 F.4th 653, 659 (4th Cir. 2022)); see also Roane

Opinion 12 (same).

Addressing the predicate offenses, the Tipton Opinion ruled that Tipton’s relevant

CCE murder convictions (Counts Seventeen, Eighteen, Nineteen, Twenty-Four, and

Twenty-Five) are valid “crime of violence” and “drug trafficking” predicates for his

§ 924(c) convictions on Counts Twenty and Twenty-Six. Thereafter, the Roane Opinion

relied primarily on the Tipton Opinion and concluded that Roane’s CCE murder

convictions (Counts Five, Eight, and Eleven) are also valid “crime of violence” and “drug

trafficking” predicates for three of his four § 924(c) convictions, i.e., those on Counts Six,

Nine, and Twelve.

In addition to the offense of CCE murder, the Roane Opinion evaluated and resolved

the issue of whether a VICAR murder is a valid predicate offense for a conviction under

§ 924(c). The Roane Opinion did so because VICAR murder was alleged as a predicate

offense for all four of Roane’s § 924(c) convictions: Counts Six, Nine, and Twelve, plus

Count Fifteen. The Roane Opinion ruled that each of Roane’s VICAR murder convictions

qualifies as a “crime of violence.”

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In seeking appellate review in this Court, pursuant to 28 U.S.C. § 2253, Tipton and

Roane submitted separate requests for certificates of appealability, supported by

preliminary briefs that alleged denials of their constitutional rights.5 We thereafter awarded

Tipton and Roane certificates of appealability on the issues argued by them in their motions

for such certificates. Having done so, we possess jurisdiction in these appeals pursuant to

28 U.S.C. §§ 1291 and 2253. By way of this consolidated opinion, we will resolve whether

the Supreme Court’s 2019 decision in Davis, informed by the Court’s subsequent Borden

decision in 2021, justify any 28 U.S.C. § 2255 relief for either Tipton or Roane.

III.

We review de novo questions of law, including the denial of constitutional

challenges, that are presented in a 28 U.S.C. § 2255 motion. See United States v.

McKinney, 60 F.4th 188, 191 (4th Cir. 2023). Because the determination of whether a

criminal offense qualifies as a predicate “crime of violence” or “drug trafficking crime”

under 18 U.S.C. § 924(c) is a legal question, we also review that issue de novo. See United

States v. Evans, 848 F.3d 242, 245 (4th Cir. 2017).

5 Pursuant to § 2253 of Title 28, an appeal from a final order in a proceeding under § 2255 may not be taken to the court of appeals unless a circuit justice or judge issues a certificate of appealability. And the issuance of such a certificate requires the applicant to make “a substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c).

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IV.

In their respective 28 U.S.C. § 2255 motions, as certified by us for appeal in these

proceedings, Tipton and Roane challenge their 18 U.S.C. § 924(c) sentences pursuant to

the legal principles enunciated by the Supreme Court in its Davis and Borden decisions.

See United States v. Davis, 139 S. Ct. 2319 (2019); Borden v. United States, 141 S. Ct.

1817 (2021). They contend that their § 924(c) convictions must be vacated, and that they

are entitled to a remand for resentencing.6

As explained earlier, Tipton was convicted of two 18 U.S.C. § 924(c) offenses,

alleged in Counts Twenty and Twenty-Six of the Indictment. Roane was convicted of four

§ 924(c) offenses, alleged in Counts Six, Nine, Twelve, and Fifteen. Each of Tipton’s

§ 924(c) charges was predicated on the following offenses: the drug distribution

conspiracy under § 846 of Title 21; a CCE murder under § 848 of Title 21; and a VICAR

murder and a VICAR maiming under § 1959(a)(1) of Title 18. Three of Roane’s § 924(c)

charges — i.e., Counts Six, Nine, and Twelve — were each predicated on the drug

distribution conspiracy, a CCE murder, and a VICAR murder. Roane’s fourth § 924(c)

charge, Count Fifteen, was predicated on the drug distribution conspiracy, a VICAR

6 The parties dispute the remedies that might be available in resentencing proceedings on the § 924(c) convictions if Tipton and Roane were to prevail here. More specifically, Tipton and Roane say that their death penalties could be reconsidered in the district court, potentially leaving each of them with life sentences only. The Government contends, on the other hand, that any such resentencing proceedings would not disturb any death penalties.

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murder, and a VICAR maiming. For each of Tipton’s and Roane’s § 924(c) charges —

and for each of the predicate offenses except the drug distribution conspiracy — principal

liability for aiding, abetting, and causing the offense was alleged under 18 U.S.C. § 2.

Although the verdict form did not specify which predicate or predicates the jury relied upon

in finding Tipton and Roane guilty of the § 924(c) offenses, the jury found them guilty of

all the alleged predicate offenses.

Pursuant to our recent decision in United States v. Said, “a § 924(c) conviction may

stand even if the jury based its verdict on an invalid predicate, so long as the jury also relied

on a valid predicate.” See 26 F.4th 653, 659 (4th Cir. 2022). Accordingly, 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. at 661-62.

Relying on the Supreme Court’s Davis and Borden decisions, Tipton and Roane

maintain that none of their predicate offenses qualifies as a § 924(c) “crime of violence.”

They also argue that none of their predicate offenses otherwise qualifies as a § 924(c) “drug

trafficking crime” (including the drug distribution conspiracy offense, as their convictions

of that offense were vacated by our Court in 1996 on double jeopardy grounds). Finally,

addressing the showing required by our Said decision, see 26 F.4th at 661-62, Tipton and

Roane contend that to the extent any of their § 924(c) charges was supported by both valid

and invalid predicate offenses, there is “more than a reasonable possibility” that the jury’s

guilty verdict on that charge rested solely on an invalid predicate offense.

18 USCA4 Appeal: 22-5 Doc: 49 Filed: 03/18/2024 Pg: 19 of 34

In assessing the validity of the predicate offenses underlying Tipton’s and Roane’s

18 U.S.C. § 924(c) charges, we begin with VICAR murder, as it is the only predicate

offense underlying each and every one of the pertinent § 924(c) charges. Specifically, we

first consider and decide whether VICAR murder qualifies as a § 924(c) “crime of

violence.”

At the outset of our analysis, we observe that § 1959 of Title 18, notably entitled

“Violent Crimes in Aid of Racketeering Activity” — otherwise known simply as VICAR

— was enacted by Congress in 1984 as the violent crime corollary to the RICO Act. The

primary purpose of both RICO and VICAR is “to seek the eradication of organized crime

in the United States . . . by providing enhanced sanctions and new remedies to deal with

the unlawful activities of those engaged in organized crime.” See Pub. L. No. 91-452, 84

Stat. 922, 923 (1970).

For its part, VICAR was enacted to combat “contract murders and other violent

crimes by organized crime figures.” See S. Rep. No. 98-225, at 306 (1984). Although

several of the violent crimes identified and defined by § 1959(a) are also prosecuted by

state and local authorities, Congress deemed it appropriate to enact the VICAR statute

because of the “Federal Government’s strong interest, as recognized in existing statutes, in

suppressing the activities of organized criminal enterprises,” and the “FBI’s experience and

network of informants and intelligence” with respect to organized crime enterprises. See

id. at 305. In other words, VICAR crimes are a unique set of federal crimes.

19 USCA4 Appeal: 22-5 Doc: 49 Filed: 03/18/2024 Pg: 20 of 34

As we recently explained, § 1959(a) “sets forth a series of VICAR offenses ranging

from threats to murder.” See United States v. Thomas, 87 F.4th 267, 272 (4th Cir. 2023).

In so doing, the statute provides a range of penalties for

[w]hoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do.

See 18 U.S.C. § 1959(a). Given its most serious nature, VICAR murder is the only VICAR

offense under § 1959(a) that is punishable by death. Id. § 1959(a)(1).

Next, we recognize that in assessing whether a predicate offense qualifies as a

“crime of violence” for purposes of 18 U.S.C. § 924(c), we generally apply the categorical

approach. See United States v. Mathis, 932 F.3d 242, 264 (4th Cir. 2019). That “approach

focuses on the elements of the [predicate] offense,” and not on the defendant’s particular

conduct. Id. (internal quotation marks omitted).

We apply the modified categorical approach, however, when the relevant statute is

“divisible,” i.e., when the statute is “comprised of ‘multiple, alternative versions of the

crime.’” See Mathis, 932 F.3d at 264 (quoting Descamps v. United States, 570 U.S. 254,

262 (2013)). In applying the modified categorical approach, we may look to the indictment

or jury instructions, and also to comparable judicial records, in order to determine “which

of the statute’s alternative elements formed the basis of the defendant’s prior conviction.”

20 USCA4 Appeal: 22-5 Doc: 49 Filed: 03/18/2024 Pg: 21 of 34

See United States v. Bryant, 949 F.3d 168, 173 (4th Cir. 2020) (quoting Descamps, 570

U.S. at 262).

Of importance in our resolution of these appeals, this Court has already determined

§ 1959(a) of Title 18 to be a divisible statute subject to the modified categorical approach.

See Thomas, 87 F.4th at 272 (specifying that § 1959(a) “sets forth multiple, alternative

versions of a crime with distinct elements”). We are therefore authorized to review the

Indictment and other approved documents to identify the VICAR offense or offenses of

which Tipton and Roane were convicted. Such review confirms that Tipton was convicted

of VICAR murder as charged in Counts Twenty-One, Twenty-Two, and Twenty Three

(and as alleged as predicates for the § 924(c) offense charged in County Twenty); that

Tipton was also convicted of VICAR murder as charged in Counts Twenty-Seven and

Twenty-Eight (and as alleged as predicates for the § 924(c) offense charged in County

Twenty-Six); and that Roane was convicted of VICAR murder as charged in Counts Seven,

Ten, Thirteen, and Fourteen (and as alleged predicates for the § 924(c) offenses alleged in

Counts Six, Nine, Twelve, and Fifteen).

In recognizing that Tipton and Roane were convicted of VICAR murder, we reject

their contention that they are entitled to a presumption that they were instead convicted of

the less serious — and uncharged — § 1959(a) offense of conspiracy to commit VICAR

murder. That contention relies on the district court’s instruction during their 1993 trial that

the jury could convict them of VICAR murder if it found that they “did knowingly and

21 USCA4 Appeal: 22-5 Doc: 49 Filed: 03/18/2024 Pg: 22 of 34

intentionally commit or conspire to commit the crime charged in the particular count under

consideration.” See J.A. 1525 (emphasis added).7

According to Tipton and Roane, the foregoing instruction creates an ambiguity as

to whether they were convicted of VICAR murder or conspiracy to commit VICAR

murder. And as we have explained, where “we conclude that the statute is divisible but are

unable to discern which alternative served as the basis for the defendant’s prior conviction,

we assume that the conviction was for the ‘least serious’ conduct encompassed by the

statute and we apply the categorical approach to that alternative.” See United States v.

Redd, 85 F.4th 153, 162 (4th Cir. 2023) (quoting United States v. Vann, 660 F.3d 771, 775

(4th Cir. 2011) (en banc) (per curiam)). Tipton and Roane identify conspiracy to commit

VICAR murder as the “least serious” alternative based on our precedents recognizing that

conspiracy does not categorically qualify as a “crime of violence” under the force clause

of § 924(c)(3)(A). See, e.g., United States v. Simms, 914 F.3d 229, 233-34 (4th Cir. 2019)

(en banc).

We conclude, however, that although jury instructions may be consulted in

determining the basis of a defendant’s prior conviction, the instruction at issue herein is

wholly insufficient to engender uncertainty as to whether Tipton and Roane were convicted

of VICAR murder or conspiracy to commit VICAR murder. Not only were the relevant

charges in the Indictment limited to VICAR murder, but Tipton’s and Roane’s respective

7 Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in Tipton’s appeal (Appeal No. 22-5).

22 USCA4 Appeal: 22-5 Doc: 49 Filed: 03/18/2024 Pg: 23 of 34

criminal judgments reflect that they received life sentences on all the relevant counts —

the minimum sentence required for VICAR murder under § 1959(a), which mandates a

sentence of “death or life imprisonment.” See 18 U.S.C. § 1959(a)(1). Had Tipton and

Roane instead been convicted of conspiracy to commit VICAR murder, their sentences

would have been limited to “imprisonment for not more than ten years.” See id.

§ 1959(a)(5). It is therefore clear that Tipton and Roane were convicted of VICAR murder,

and not conspiracy to commit VICAR murder. Cf. United States v. McDaniel, 85 F.4th

176, 189 (4th Cir. 2023) (relying on criminal judgment, along with charging instrument

and plea agreement, to determine offense of conviction).

3.

That brings us squarely to the question of whether VICAR murder constitutes an 18

U.S.C. § 924(c) “crime of violence.” In the wake of the Supreme Court’s Davis and Borden

decisions, a qualifying “crime of violence” must satisfy the force clause of § 924(c)(3)(A)

and have a mens rea greater than recklessness. That is,

[a]s it stands now, to qualify as a crime of violence under § 924(c), an offense must “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person or property of another” and that force must be applied with a mens rea greater than recklessness. Both of these things are necessary.

See Thomas, 87 F.4th at 270 (second alteration in original) (quoting 18 U.S.C.

§ 924(c)(3)(A)). We address the requirements for a § 924(c) “crime of violence” in turn.

In assessing whether a predicate offense satisfies the force clause of § 924(c)(3)(A),

we examine “whether the statutory elements of the offense necessarily require the use,

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attempted use, or threatened use of physical force.” See United States v. Simms, 914 F.3d

229, 233 (4th Cir. 2019) (en banc). We also bear in mind that, as the Supreme Court has

recognized, the use of physical force “means violent force — that is, force capable of

causing physical pain or injury to another person.” See Johnson v. United States, 599 U.S.

133, 140 (2010).

Consistent with § 1959(a) of Title 18, our Court has described the elements of

VICAR murder as follows:

VICAR murder requires: (1) there be an “enterprise” as defined in 18 U.S.C. § 1959(b)(2); (2) the enterprise be engaged in “racketeering activity,” as defined in § 1961; (3) the defendant committed a murder; (4) the murder violated state or federal law; and (5) the murder was committed for a pecuniary purpose or for the purpose of gaining entrance to or maintaining or increasing position in the enterprise.

See United States v. Ortiz-Orellana, 90 F.4th 689, 701 (4th Cir. 2024) (alteration and

internal quotation marks omitted). The key elements here are Ortiz-Orellana’s third, which

we will refer to as the “murder element,” and fifth, which we will shorthand as the “purpose

element.” Because of those elements, we conclude that VICAR murder necessarily

requires the use of violent force and thereby satisfies the § 924(c) force clause.

In explaining why that is so, it is notable that when Congress enacted the § 924(c)

force clause, the crime of murder was an offense of utmost concern. See H.R. Rep. No.

849, 99th Cong., 2d Sess. 3 (recognizing that the § 924(c) force clause offenses “would

include such felonies involving physical force against a person such as murder, rape,

assault, robbery, etc.”). Moreover, we have ruled that the 18 U.S.C. § 1111(a) offenses of

premeditated first-degree murder and second-degree retaliatory murder are § 924(c) crimes

24 USCA4 Appeal: 22-5 Doc: 49 Filed: 03/18/2024 Pg: 25 of 34

of violence. See United States v. Jackson, 32 F.4th 278, 287 (4th Cir. 2022); In re Irby,

858 F.3d 231, 236 (4th Cir. 2017). That was because “to commit federal premeditated

first-degree murder, a death-results crime, is to intentionally inflict the greatest physical

injury imaginable — death.” See Jackson, 32 F.4th at 287. Similarly, a second-degree

retaliatory murder cannot be committed without intentionally “applying direct force” or

intentionally “plac[ing] the victim in the path of an inevitable force.” See Irby, 858 F.3d

at 236.

As for VICAR murder, the murder element and the purpose element mean there

must be an intentional murder. That is, the murder must intentionally be “committed for a

pecuniary purpose or for the purpose of gaining entrance to or maintaining or increasing

position in the enterprise.” See Ortiz-Orellana, 90 F.4th at 701 (alteration and internal

quotation marks omitted); see also United States v. Manley, 52 F.4th 143, 152 (4th Cir.

2022) (Niemeyer, J., concurring) (“VICAR’s purpose element requires that the defendant

commit the assault or murder for the purpose of gaining entrance to or maintaining or

increasing position in the enterprise, not that the defendant commit any act with that

purpose that may then have the unintended consequences of resulting in assault or

murder.” (internal quotation marks omitted)). And pursuant to our precedents, it is beyond

dispute that an intentional murder necessarily requires the use of violent force, in

satisfaction of the § 924(c) force clause.8

To be clear, we rule today that because of VICAR’s purpose element, a felony 8

murder — i.e., a murder that may be unintentionally committed in the perpetration or (Continued) 25 USCA4 Appeal: 22-5 Doc: 49 Filed: 03/18/2024 Pg: 26 of 34

Turning to Borden’s mens rea requirement, we inquire whether the predicate offense

has a mens rea greater than recklessness, i.e., whether the “use of force must be ‘purposeful

or knowing.’” See Jackson, 32 F.4th at 284 (quoting Borden, 141 S. Ct. at 1828)). Of

course, as we have already explained, the elements of VICAR murder include what we call

the “purpose element,” under which the murder must be “committed for a pecuniary

purpose or for the purpose of gaining entrance to or maintaining or increasing position in

the enterprise.” See Ortiz-Orellana, 90 F.4th at 701 (alteration and internal quotation

marks omitted). As such, the use of force in a VICAR murder is both purposeful and

knowing, for when a person “murders to gain a personal collateral advantage with an

enterprise, he makes a decision — a deliberate choice — to carry out . . . the murder to

demonstrate his worth to the enterprise.” See Manley, 52 F.4th at 152 (Niemeyer, J.,

concurring).

Indeed, in the words of Judge Wilkinson, “[i]t would be indefensible to hold that a

defendant who committed [a VICAR murder or another VICAR offense] for the purpose

of improving his position in a racketeering enterprise did so recklessly.” See Thomas, 87

F.4th at 274. Simply put, VICAR offenses “are deliberate and purposeful machinations to

raise one’s clout in a criminal enterprise.” Id. VICAR murder therefore carries with it a

requisite mens rea that is greater than recklessness, as required by Borden.

attempted perpetration of another felony offense, see Jackson, 32 F.4th at 286 — cannot constitute a VICAR murder. The parties have suggested to the contrary, but we disagree.

26 USCA4 Appeal: 22-5 Doc: 49 Filed: 03/18/2024 Pg: 27 of 34

***

In sum, we conclude that VICAR murder satisfies both the force clause of

§ 924(c)(3)(A) and Borden’s mens rea requirement. Accordingly, we are satisfied that

VICAR murder constitutes a § 924(c) “crime of violence.”

4.

Nevertheless, Tipton and Roane argue that none of their VICAR murder offenses

can be said to qualify as an 18 U.S.C. § 924(c) “crime of violence” because of a defect in

the Indictment, as well as the jury instructions, that renders it impossible to conduct the

proper analysis — that defect being the failure to identify the state or federal law that each

of the murders allegedly violated. Their argument concerns the fourth element of VICAR

murder described in Ortiz-Orellana — that “the murder violated state or federal law,” see

90 F.4th at 701 — which we now call the “underlying-law element.” As Tipton and Roane

would have it, the proper § 924(c) “crime of violence” analysis of their VICAR murder

offenses requires an examination of the elements of the state or federal law at issue. But

because the Indictment and jury instructions did not specify any state or federal law for

purposes of the underlying-law element, that analysis cannot be conducted.9

9 Our review of the Indictment confirms that it is true, as Tipton and Roane assert, that the VICAR murder charges did not specify any state or federal law that the murders allegedly violated. Those charges are exemplified by Tipton’s VICAR murder charge with respect to victim Bobby Long in Count Twenty-One. In pertinent part, it alleged

that on or about February 1, 1992, at Richmond, Virginia, . . . RICHARD TIPTON . . . did knowingly, intentionally, and unlawfully cause the murder of Bobby Long, as consideration for the receipt of, and as consideration for a promise and agreement to pay, something of pecuniary value from an (Continued) 27 USCA4 Appeal: 22-5 Doc: 49 Filed: 03/18/2024 Pg: 28 of 34

Unfortunately for Tipton and Roane, in our recent Thomas decision, this Court

considered — and roundly rejected — the premise of their argument. See 87 F.4th at 274-

75. That is, Thomas rejected the proposition that the proper § 924(c) “crime of violence”

analysis of a VICAR offense requires a court to “look through” the VICAR statute to the

underlying violation of state or federal law. Id.

The VICAR offense being analyzed in Thomas was VICAR assault with a

dangerous weapon, which has essentially the same five elements described in Ortiz-

Orellana for VICAR murder, except for the requirement of “assault with a dangerous

weapon” rather than “murder.” See Thomas, 87 F.4th at 272-73 (relating that “the elements

necessary for a conviction of VICAR assault with a dangerous weapon are: (1) that there

exists a racketeering enterprise; (2) that the enterprise be engaged in racketeering activity;

(3) that the defendant have committed an assault with a dangerous weapon; (4) that the

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

a racketeering purpose” (internal quotation marks omitted)). Employing an analysis

similar to our assessment of VICAR murder above, Thomas concluded that because of the

enterprise engaged in racketeering activity, and for the purpose of gaining entrance to and maintaining and increasing position in an enterprise engaged in racketeering activity, said racketeering activity being dealing in narcotic or other dangerous drugs.

(In violation of Title 18, United States Code, Sections 1959 and 2.)

See J.A. 76-77.

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third and fifth elements, VICAR assault with a dangerous weapon qualifies as a § 924(c)

“crime of violence.” See id. at 273-74.

Much like Tipton and Roane now do herein, however, the Thomas defendant argued

that we were required to focus instead on the fourth element — the underlying-law element

— and subject the federal or state law at issue to the § 924(c) “crime of violence” analysis.

See Thomas, 87 F.4th at 274. In Thomas’s case, that would have meant “looking through”

the VICAR statute to two Virginia statutes alleged in his indictment as the state laws

violated by his assault with a danger weapon. See id. The Thomas decision rejected

Thomas’s argument for “conflat[ing] the predicate requirements of § 924(c) (which

requires that its predicate qualify as a crime of violence) and the VICAR statute (which

does not).” Id. Additionally, Thomas explained:

To qualify as a “crime of violence” for purposes of § 924(c), an offense must “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) (emphasis added). The fact that the statute’s text speaks so explicitly in terms of a single element is important. If one element of an offense satisfies the force clause, it becomes superfluous to inquire whether other elements likewise meet the requirement.

The VICAR statute makes it a crime to commit any of the statute’s enumerated offenses “in violation of the laws of any State or the United States.” 18 U.S.C. § 1959(a). We have interpreted this language to mean that one element of a VICAR conviction is that the defendant committed the enumerated federal offense, and another is that the defendant’s conduct violated an independent state or federal law. As established above, federal assault with a dangerous weapon easily qualifies as a crime of violence. That this element of VICAR assault with a dangerous weapon qualifies as a crime of violence is sufficient in and of itself to render the offense a crime of violence, we need not progress to the state-law predicates.

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Id. at 274-75. As Thomas was careful to explain, “[t]hat is not to say that courts can never

look at the underlying state-law predicates.” Id. at 275. “But where, as here, the generic

federal offense standing alone can satisfy the crime-of-violence requirements, courts need

not double their work by looking to the underlying predicates as well.” Id.10

Pursuant to Thomas, we need only decide whether the generic federal murder

offense enumerated in the VICAR statute qualifies as a § 924(c) “crime of violence.” And

we have already answered that question in the affirmative. As we recognized in Thomas,

that ruling “is sufficient in and of itself to render [VICAR murder] a crime of violence.”

See 87 F.4th at 275. We therefore reject Tipton’s and Roane’s argument that we must

“look through” the VICAR statute to the underlying state or federal law that each of their

murders allegedly violated, and thus it matters not today that no such state or federal law

was identified in the Indictment.11

10 Our Thomas decision was rendered in November 2023, more than a year after the district court denied Tipton’s and Roane’s motions for habeas corpus relief. In assessing whether Roane’s VICAR murder offenses are valid § 924(c) predicates, the court — lacking the benefit of Thomas and out of an “abundance of caution” — identified and assessed three state and federal laws that were possibly violated. See Roane Opinion 17- 20. That is, the court “looked through” the VICAR statute to Virginia’s murder statute, in Virginia Code section 18.2-32; the statutory definition of a federal murder, in 18 U.S.C. § 1111(a); and a generally accepted common law definition of a murder offense. According to the Roane Opinion, each of those murder offenses qualifies as a § 924(c) “crime of violence.” 11 Notably, neither Tipton nor Roane has heretofore sought to challenge the sufficiency of the Indictment’s VICAR murder charges, either before or during their 1993 trial, on direct appeal, or in any other collateral proceedings. As their lawyers have acknowledged, they are thereby limited in these successive 28 U.S.C. § 2255 proceedings to arguing that defects in the Indictment render it impossible to conduct a proper analysis of VICAR murder as a predicate for their firearm-related § 924(c) offenses. They do not (Continued) 30 USCA4 Appeal: 22-5 Doc: 49 Filed: 03/18/2024 Pg: 31 of 34

Having concluded that VICAR murder qualifies as a “crime of violence” under 18

U.S.C. § 924(c), we next determine whether Tipton and Roane have demonstrated “more

than a reasonable possibility” that their § 924(c) convictions rested solely on some other,

invalid predicate offense. See Said, 26 F.4th at 661-62. In other words, we assess whether

there is more than a reasonable possibility that the jury did not rely on VICAR murder as

a predicate for any of the § 924(c) convictions. If no such possibility has been shown, we

can affirm the district court’s denial of 28 U.S.C. § 2255 relief without considering the

validity of the other predicates, i.e., the drug distribution conspiracy, CCE murder, and

VICAR maiming offenses. Cf. United States v. Draven, 77 F.4th 307, 318-20 (4th Cir.

2023) (explaining that where first predicate was ruled valid and defendant failed to argue

or show more than reasonable possibility that jury relied only on second predicate, there

was no need to decide validity of second predicate).

We emphasize that “mere uncertainty as to which predicate or predicates the jury

relied on when it found the defendant guilty of the § 924(c) counts does not suffice to

demonstrate . . . the sort of substantial and injurious error required for habeas relief.” See

Said, 26 F.4th at 661 (alterations and internal quotation marks omitted). So, even where,

as here, the verdict form did not specify which predicate or predicates the jury found, “that

seek, e.g., the vacatur of their various VICAR murder convictions on the basis of defective charges. See Bousley v. United States, 523 U.S. 614, 622 (1998) (recognizing the high bar for raising a habeas corpus claim when “a defendant has procedurally defaulted [the] claim by failing to raise it on direct review”).

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sort of ambiguity is not enough.” Id. at 662. Moreover, where, as here, the jury found the

defendant guilty “of all the possible predicate theories” — i.e., “every charge” of a

substantive offense also alleged as a § 924(c) predicate — the defendant must “point[] to

ways in which those individual charges [can] be split into valid and invalid predicates.” Id.

at 663.

In seeking to show more than a reasonable possibility that the jury did not rely on

VICAR murder as a predicate for their § 924(c) convictions, Tipton and Roane proffer

several theories, none of which are availing. For example, once again invoking the jury

instruction advising that they could be convicted for “conspir[ing] to commit” VICAR

murder, see J.A. 1525, Tipton and Roane assert a likelihood that the jury found them guilty

not of VICAR murder, but of the invalid predicate offense of conspiracy to commit VICAR

murder.

In addition to other problems with the instruction-based theory, see supra Part

IV.B.2, it is belied by the trial evidence. See United States v. Ali, 991 F.3d 561, 575 (4th

Cir. 2021) (explaining that the inquiry into whether the jury relied upon a certain § 924(c)

predicate “is a case-specific and fact-intensive determination” that may involve reviewing,

inter alia, the jury instructions and the trial evidence (internal quotation marks omitted)).

That is, there was compelling and substantial proof that Tipton and Roane did more than

simply conspire to commit VICAR murders. Indeed, as recounted in Judge Phillips’s 1996

opinion resolving Tipton’s and Roane’s direct appeals, the trial evidence was wholly

consistent with the Indictment’s allegations that Tipton and Roane personally committed,

and aided and abetted, the charged VICAR murder offenses. See United States v. Tipton,

32 USCA4 Appeal: 22-5 Doc: 49 Filed: 03/18/2024 Pg: 33 of 34

90 F.3d 861, 868-69 (4th Cir. 1996); see also Ali, 991 F.3d at 576 (perceiving inadequate

uncertainty as to whether jury convicted defendant of conspiracy or aiding and abetting

where there was “strong proof that [defendant] did more than simply conspire to commit

robberies but that he assisted their commission”).

Another theory proffered by Tipton and Roane to demonstrate more than a

reasonable possibility that their § 924(c) convictions did not rest on VICAR murder

predicates, is the trial evidence that it was other codefendants — and not Tipton and Roane

themselves — who used firearms in committing the VICAR murders. That theory ignores,

however, that Tipton and Roane were charged not only with aiding and abetting the VICAR

murder offenses, but also with aiding and abetting the firearm-related § 924(c) offenses.

And there was ample evidence that Tipton and Roane at least aided and abetted the § 924(c)

offenses committed in the course of the VICAR murders. See United States v. Benson, 957

F.3d 218, 237 (4th Cir. 2020) (“To prove aiding and abetting under § 924(c), the

Government must show ‘that the defendant actively participated in the underlying . . .

violent crime with advance knowledge that a confederate would use or carry a gun during

the crime’s commission.’” (alteration in original) (quoting Rosemond v. United States, 572

U.S. 65, 67 (2014))).

In these circumstances, Tipton and Roane have failed to demonstrate more than a

reasonable possibility that the jury did not rely on the valid VICAR murder predicate for

any of their § 924(c) convictions. Consequently, we reject their challenges to the sentences

resulting from those convictions without reaching and deciding the validity of any other

alleged § 924(c) predicate.

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Pursuant to the foregoing, we affirm the district court’s denials of the 28 U.S.C.

§ 2255 relief being sought by Tipton and Roane in these proceedings.

No. 22-5 — AFFIRMED

No. 23-1 — AFFIRMED