Appellate Case: 23-4019 Document: 97 Date Filed: 03/06/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 6, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-4019
JULIAN SANDOVAL-FLORES,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the District of Utah (D.C. Nos. 2:16-CV-00719-TC & 2:99-CR-00109-TC-1) _________________________________
Benjamin C. McMurray, Assistant Federal Public Defender (Scott Keith Wilson, Federal Public Defender, with him on the briefs), Salt Lake City, Utah, for Defendant-Appellant.
Tyler L. Murray, Assistant United States Attorney (Trina A. Higgins, United States Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff-Appellee. _________________________________
Before HARTZ, McHUGH, and EID, Circuit Judges. _________________________________
HARTZ, Circuit Judge. _________________________________
While protecting a cache of drugs and money, Defendant Julian Sandoval-
Flores opened fire on several law-enforcement officers. He shot one officer in the
chest and head, but the officer’s protective gear spared him from life-threatening
injury. A federal grand jury indicted Defendant on a number of charges, including Appellate Case: 23-4019 Document: 97 Date Filed: 03/06/2026 Page: 2
multiple counts of attempted murder and of violating 18 U.S.C. § 924(c) by using a
firearm in relation to a “crime of violence.” Under an agreement with the
government, he pleaded guilty to two counts of attempted murder and one count
under § 924(c) (in which the predicate crime of violence was attempted murder), and
he waived any future collateral attacks on his conviction or sentence. In return, the
government dropped other charges against him and agreed not to bring charges
against his son.
Despite his collateral-attack waiver, Defendant has repeatedly sought relief
under 28 U.S.C. § 2255. In the present second-or-successive motion under § 2255, he
asks us to set aside his conviction under § 924(c) on the ground that the trial court
improperly ruled that attempted murder was a crime of violence.
Section 924(c) authorizes heightened criminal penalties for “any person who,
during and in relation to any crime of violence or drug trafficking crime . . . , uses or
carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” 18
U.S.C. § 924(c)(1). The statute provides two alternative definitions for crime of
violence. The first definition, referred to as the “elements clause,” encompasses a
felony that “has as an element the use, attempted use, or threatened use of physical
force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). The
second definition, referred to as the “residual clause,” encompasses 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.” 18 U.S.C.
§ 924(c)(3)(B).
2 Appellate Case: 23-4019 Document: 97 Date Filed: 03/06/2026 Page: 3
In United States v. Davis, 588 U.S. 445 (2019), the Supreme Court invalidated
the residual clause as unconstitutionally vague but did not call into question the
alternative elements clause. Defendant contends that his conviction was based on
application of the residual clause and therefore must be set aside.
Exercising jurisdiction under § 2255(d), we affirm the district court’s denial of
Defendant’s successive § 2255 motion. We agree with the lower court that Defendant
has failed to establish by the preponderance of the evidence that the trial court relied
on the unconstitutional residual clause.
I. BACKGROUND
A grand jury indicted Defendant on four counts of attempted murder under 18
U.S.C. § 1114(a)(3); four counts of violating 18 U.S.C. § 924(c)(1); and one count of
violating 18 U.S.C. § 922(g)(5), which prohibits an alien illegally in the United
States from possessing a firearm. Complying with his agreement with the
government, he pleaded guilty in July 2000 to two counts of attempted murder, one
count of violating § 924(c)(1), and the § 922(g)(5) charge. The government dropped
the remaining charges and promised not to prosecute his son for possession with
intent to distribute controlled substances, perjury, or obstruction of justice. Defendant
waived his right to appeal or collaterally attack his conviction or sentence, except for
a right to appeal his sentence in limited circumstances. The court sentenced him to
450 months’ imprisonment (later reduced to 385 months).
In 2002 and 2003 Defendant filed several (unsuccessful) motions under § 2255
to vacate his sentence. Then, after the Supreme Court ruled in Davis that the residual
3 Appellate Case: 23-4019 Document: 97 Date Filed: 03/06/2026 Page: 4
clause in § 924(c)(1) is unconstitutional, he asked this court for authorization to file a
second-or-successive § 2255 motion to vacate his conviction and sentence on that
basis. See United States v. Copeland, 921 F.3d 1233, 1238 (10th Cir. 2019) (requiring
defendant to “first obtain an order from the appropriate court of appeals authorizing
the district court to consider the [successive] motion” (internal quotation marks
omitted)); 28 U.S.C. §§ 2244(b)(3), 2255(h).
Because the Supreme Court made Davis retroactive to cases on collateral
review through the combination of its holdings in Davis and Welch v. United States,
578 U.S. 120, 130 (2016), we granted Defendant the requested authorization. See In
re Mullins, 942 F.3d 975, 979 (10th Cir. 2019) (noting Davis’s retroactive
application). But we left to the district court to consider the merits of his motion to
vacate, including the “existence or applicability of any plea-agreement waiver.”
Order at 2 n.1, In re Sandoval-Flores, No. 16-4064 (10th Cir. Feb. 6, 2020).
The district court denied Defendant’s § 2255 motion. See Sandoval-Flores v.
United States, No. 2:16-cv-719-TC, 2022 WL 17740409, at *2 (D. Utah Dec. 16,
2022). It first concluded that the collateral-attack waiver in his plea agreement barred
any relief. See id. at *2–5. But because of “uncertainty in Tenth Circuit law” the
district court also addressed remaining issues in the case. Id. at *2. It held that
Defendant failed to satisfy § 2255(h)’s requirements because he had not shown that
the sentencing court relied on the now-invalid residual clause. See id. at *5–8. And
even if the sentencing court had so relied, the district court concluded that any error
was harmless because, despite the unconstitutionality of the residual-clause definition
4 Appellate Case: 23-4019 Document: 97 Date Filed: 03/06/2026 Page: 5
of crime of violence in § 924(c)(3)(B), attempted murder is still a crime of violence
under the alternative definition of the term in the elements clause of § 924(c)(3)(A).
See id. at *11. Finally, the district court denied Defendant a certificate of
appealability (COA) under 28 U.S.C § 2253(c)(1)(B). See id. at *11. Defendant then
obtained a COA from this court. 1
II. DISCUSSION
On appeal from a district court’s denial of a § 2255 motion, we review the
district court’s legal rulings de novo and its factual findings for clear error. 2 See
United States v. Driscoll, 892 F.3d 1127, 1130 (10th Cir. 2018). We need not address
all the grounds on which the district court denied relief because we can affirm on the
1 Although we believe that our COA encompassed our review of whether Defendant showed that the trial court relied on the residual clause, we now grant, out of an abundance of caution, a COA on that issue, which has been briefed on appeal by both parties. 2 We recognize that this court has stated that if the district court did not conduct an evidentiary hearing from which it made findings, we review the district court’s rulings de novo. See, e.g., United States v. Copeland, 921 F.3d 1233, 1242 (10th Cir. 2019); United States v. Spaeth, 69 F.4th 1190, 1204 (10th Cir. 2023). Although this standard of review is not at issue here because the district court conducted an evidentiary hearing, it appears to be in some tension with Fed. R. Civ. P. 52(a)(6), which states, “Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous.” See also Rule 12 of Rules Governing Section 2255 Proceedings (“The Federal Rules of Civil Procedure . . . , to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules”). “Rule 52(a) does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court’s findings unless clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (internal quotations marks omitted). “This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.” Id. 5 Appellate Case: 23-4019 Document: 97 Date Filed: 03/06/2026 Page: 6
district court’s alternative holding that Defendant had not shown that the sentencing
court relied on the now-invalid residual clause.
Defendant “bears the burden of proving by a preponderance of the evidence
that it was use of the residual clause that led to the sentencing court’s enhancement of
his sentence.” United States v. Cooper, 159 F.4th 768, 772–73 (10th Cir. 2025)
(internal quotation marks omitted). As the district court determined, and the
government argues, Defendant has failed to show that the sentencing court more
likely than not relied on the residual clause to enhance his sentence.
One way that a defendant may satisfy his burden is by pointing to a reference
to § 924(c)’s residual clause in the sentencing record, such as the presentence report
or remarks at sentencing. See Copeland, 921 F.3d at 1242. (And, by the same token,
specific reference to the applicability of the elements clause would likely be enough
to defeat the defendant’s claim.) Here, however, the parties agree that the sentencing
record does not mention the residual clause.
Alternatively, even if the sentencing record is silent on the residual clause, the
defendant may satisfy his burden by reference to “the relevant background legal
environment at the time of sentencing.” Id. at 1243. That is, he may use the
background law to show that “the sentencing court must have relied on the residual
clause.” Id. (internal quotation marks omitted). The background law could
demonstrate, for example, that the alternative of applying the elements clause may
have been foreclosed. See Cooper, 159 F.4th at 773 (“reviewing court can conclude
that the sentencing court must have relied on the residual clause” if the background
6 Appellate Case: 23-4019 Document: 97 Date Filed: 03/06/2026 Page: 7
law “precluded use of the . . . elements clause[] for a particular conviction”). On the
other hand, if “there would have been no need” for the trial court to rely on the
residual clause at sentencing, “then the defendant has not shown it is more likely than
not [that] the sentencing court relied on the residual clause.” Id. (internal quotation
marks omitted).
The background legal environment is a “snapshot of what the controlling law
was” at the time that the district court sentenced Defendant (here, 2001). Copeland,
921 F.3d at 1243 (internal quotation marks omitted). We have held that the caselaw
to be reviewed for this inquiry includes opinions “holding that particular offenses
qualify as [crimes of violence]” and those “instructing how to determine whether an
offense qualifies.” Id. (employing this approach to determine whether a crime would
have been considered a “violent felony” under the Armed Career Criminal Act).
Opinions in the first category are cited for their holdings, not their reasoning. We
simply infer what the sentencing court was likely to do by observing what appellate
courts do. The opinions in the second category, in contrast, tell us how the sentencing
court was likely to think about an issue of first impression, even if none of the
opinions specifically addressed the statute of concern (the one defining the predicate
offense). Neither category of opinions helps Defendant.
Defendant’s predicate offense for his § 924(c) conviction was attempted
murder under 18 U.S.C. § 1114(a)(3), which penalizes “[w]hoever . . . attempts to
kill any officer or employee of the United States . . . while such officer or employee
is engaged in or on account of the performance of official duties.” To complete an
7 Appellate Case: 23-4019 Document: 97 Date Filed: 03/06/2026 Page: 8
attempt to kill under § 1114, a defendant must take a “substantial step towards that
crime” and have “a specific intent” to kill. Braxton v. United States, 500 U.S. 344,
349–50 & n.* (1991).
To begin with, we and the parties have identified only one opinion predating
Defendant’s sentence that belongs in the first category. In United States v. Luskin,
926 F.2d 372, 373 (4th Cir. 1991), the defendant’s predicate felony was 18 U.S.C.
§ 1952A (later redesignated without change as 18 U.S.C. § 1958). See Luskin, 926
F.2d at 379 n.3. That statute punishes “[w]hoever travels in or causes another . . . to
travel in interstate or foreign commerce . . . with intent that a murder be committed.”
18 U.S.C. § 1952(A) (1987). The defendant argued that § 1952A could not constitute
a § 924(c) “crime of violence” because it “does not penalize any violent criminal act”
and “instead . . . criminalizes the mere carrying of a firearm in interstate commerce
with the intent to commit murder.” Luskin, 926 F.2d at 379. The court rejected this
argument, explaining that it “ignores the definition of a ‘crime of violence’ under
section 924(c),” which includes statutes that criminalize even a threatened use of
violence. Id. The court said that the defendant violated § 1952A “by travelling in
interstate commerce three times with the intent to commit murder” and that “[t]his
conduct certainly threatened the use of violence.” Id. (The court also held that
§ 1952(A) was a crime of violence under the residual clause.)
Defendant responds that even if the holding of Luskin—namely, that attempted
murder satisfies the elements clause—would otherwise support the government in
this case, the reasoning of the Luskin opinion is faulty, rendering the opinion
8 Appellate Case: 23-4019 Document: 97 Date Filed: 03/06/2026 Page: 9
“inapposite.” Aplt. Reply Br. at 6. The flaw in Luskin, according to Defendant, is that
it did not apply what is known as the “categorical approach” to analyze whether
§ 1952A was a crime of violence.
The categorical approach was first set forth by the Supreme Court in Taylor v.
United States, 495 U.S. 575, 602 (1990) (addressing enhancement under 18 U.S.C.
§ 924(e) for having committed a “violent felony”). Under that approach, when
determining whether a predicate crime is a crime of violence, courts do not consider
the specific conduct of the defendant in committing the prior offense but look “only
to the fact of conviction and the statutory definition of the prior offense.” Taylor, 495
U.S. at 602. In doing so, courts compare the elements of the alleged crime (here,
attempted murder under § 1114(a)(3)) to the applicable statutory definition of “crime
of violence” (here, § 924(c)’s residual and elements clauses). See United States v.
Kendall, 876 F.3d 1264, 1267 (10th Cir. 2017). And “if someone could be convicted
of violating the statute [defining the charged crime] but not commit a crime of
violence—the statute cannot categorically be considered a crime of violence.” Id. at
1267–68 (emphasis omitted).
To be sure, Luskin did not explicitly apply the categorical approach. But
whether Luskin explicitly applied the categorical approach is of no consequence
because Luskin’s reasoning would require the same result under that approach.
Without considering any of the facts specific to the defendant’s conduct in that case,
the Fourth Circuit made the commonsense observation that when someone commits
the elements of the charged offense—traveling in interstate commerce with intent to
9 Appellate Case: 23-4019 Document: 97 Date Filed: 03/06/2026 Page: 10
commit murder—that person “threaten[s] the use of violence” against another within
the meaning of § 924(c)’s elements clause. Luskin, 926 F.2d at 379 (emphasis added).
Nor can Defendant find help in the second category of relevant opinions. He
has pointed to no material change in the years since imposition of his sentence that
would alter how courts determine whether a statute defines a crime of violence. In
other words, the relevant background legal environment at the time he was sentenced
is identical to the relevant background legal environment today. And one can
therefore readily infer the likelihood that a court would have determined in 2001
(when Defendant was sentenced) that attempted murder is a crime of violence under
the elements clause simply by looking at what courts have done since then. See
Cooper, 159 F.4th at 776 (appellate decisions rendered after a defendant’s sentencing
“do[] not establish the governing law at the time of sentencing, [but those decisions]
nonetheless support[] our understanding of how courts [would have] interpreted [case
law] at that time”). What we find does not help Defendant.
Defendant’s predicate felony was attempted murder in violation of 18 U.S.C.
§ 1114(a)(3), which penalizes attempts to kill officers and employees of the United
States engaged in their duties. Defendant has not pointed to, nor are we aware of, any
appellate decisions holding that attempted murder is not a crime of violence under
the elements clause of § 924(c)(3)(A). And several have held that it is. See, e.g.,
United States v. Pastore, 83 F.4th 113, 120 (2d Cir. 2023) (because second-degree
murder is a crime of violence, an attempt to commit that crime “is itself categorically
a crime of violence”), aff’d sub nom., Delligatti v. United States, 604 U.S. 423
10 Appellate Case: 23-4019 Document: 97 Date Filed: 03/06/2026 Page: 11
(2025); United States v. Smith, 957 F.3d 590, 596 (5th Cir. 2020) (“[A]ttempted
murder invariably requires the actual, attempted, or threatened use of physical
force”), abrogation on other grounds recognized by United States v. Robinson, 67
F.4th 742, 750–51 (5th Cir. 2023); Rose v. United States, 153 F.4th 664, 669 (8th Cir.
2025) (“If murder qualifies as the use of physical force, then attempted murder
logically should qualify as the attempted use of physical force” (internal quotation
marks omitted)); Dorsey v. United States, 76 F.4th 1277, 1283 (9th Cir. 2023)
(applying categorical approach in determining that attempted murder is a crime of
violence under § 924(c)(3)(A) because “[e]ven if the defendant took only a slight,
nonviolent act with the intent to cause another’s death, that act would pose a threat of
violent force sufficient to satisfy” the statutory definition (internal quotation marks
omitted)); Alvarado-Linares v. United States, 44 F.4th 1334, 1347 (11th Cir. 2022)
(since “the completed crime of murder has as an element the use of force, the attempt
to commit murder has as an element the attempted use of force” (emphasis omitted));
see also United States v. Báez-Martinez, 950 F.3d 119, 132 (1st Cir. 2020) (under the
Armed Career Criminal Act, “if murder requires violent force because death results,
then attempted murder does, too, because the defendant attempted to reach that
result”).
The caselaw in this circuit is not to the contrary. Although there are no
published Tenth Circuit opinions on the subject, an unpublished opinion has held that
attempted murder is a § 924(c) crime of violence under the elements clause. See
United States v. Ivory, 861 F. App’x 233, 237–38 (10th Cir. Jul. 6, 2021) (attempted
11 Appellate Case: 23-4019 Document: 97 Date Filed: 03/06/2026 Page: 12
killing of a witness); see also United States v. Rayford, 840 F. App’x 393, 394 (10th
Cir. Mar. 22, 2021) (“[W]hen a completed crime [bank robbery] has as an element
the actual use of physical force, it stands to reason that any attempt to commit that
completed crime necessarily has as an element the attempted use of such physical
force—thus satisfying the elements clause” (internal quotation marks omitted));
United States v. Neely, 763 F. App’x 770, 780 (10th Cir. 2019) (same, for attempted
battery).
Defendant does make one effort to rely on background legal principles. But the
effort fails. He points out that one can be guilty of attempting to commit a violent
felony without using any physical force. He cites United States v. Washington, 653
F.3d 1251, 1264 (10th Cir. 2011) (to be guilty of an attempt, the only act one must
commit is an act constituting “a substantial step towards commission of the
substantive offense” (internal quotation marks omitted)), and United States v.
Martinez, 775 F.2d 31, 35 (2d Cir. 1985) (similar). But he ignores that the definition
of crime of violence in the elements clause includes a felony that “has as an element
the . . . attempted use . . . of physical force.” 18 U.S.C. § 924(c)(3)(B). Perhaps one
who has committed the crime of attempting to commit an offense that has as an
element the use of physical force would not necessarily have committed an offense
that has as an element the attempted use of physical force. But in the absence of any
appellate precedent supporting such a conclusion, the probability is quite high that
the court that sentenced Defendant would have found otherwise—in other words, it
would have determined that attempted murder satisfies the elements clause.
12 Appellate Case: 23-4019 Document: 97 Date Filed: 03/06/2026 Page: 13
Although Defendant contends that “the force of logic” supports his view that
attempted murder is not a crime of violence, he admits that “the great weight of
authority” is to the contrary. Aplt. Reply Br. at 1. Given the above case law, he has
not established that the sentencing court more likely than not relied on the residual
clause in sentencing him under § 924(c).
III. CONCLUSION
We AFFIRM the district court’s dismissal of Defendant’s motion under
§ 2255.