Nakai v. USA

Filing 53

ORDER - IT IS ORDERED: Judge Boyle's R&R (Doc. 48 ) is accepted in part and rejected in part. Nakais § 2255 motion (Doc. 3 ) is denied with respect to Counts 2 and 8 (§ 924 convictions based on first-degree murder), Count 10 (
67; 924 conviction based on carjacking), and Count 14 (§ 924 conviction based on robbery). The motion is granted with respect to Counts 6 and 18 (§ 924 convictions based on kidnapping) and Counts 4, 12, and 16 (§ 924 convictions bas ed on felony murder). Nakai's convictions and sentences with respect to Counts 4, 6, 12, 16, and 18 are vacated. A certificate of appealability is granted. See document for complete details. Signed by Senior Judge David G Campbell on 8/11/2021. (WLP) NEF regenerated to Ninth Circuit Court of Appeals only on 8/12/2021 (NKS).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gregory Nakai,

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No. CV-16-08310-PCT-DGC

Petitioner,
CR-01-01072-01-PCT-DGC

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v.

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United States of America,

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Respondent.

ORDER

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Movant Gregory Nakai filed a motion to vacate, set aside, or correct his sentence

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pursuant to 28 U.S.C. § 2255. Doc. 3 at 3-11.1 Magistrate Judge John Boyle recommends

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that: (1) Nakai’s convictions on counts 6 and 18 be vacated; (2) his motion otherwise be

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denied; and (3) a certificate of appealability be granted. Doc. 48 (“R&R”). Nakai objects.

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Doc. 49. The Court will adopt the R&R in part, grant Nakai’s motion in part, and grant a

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certificate of appealability.2

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Background.

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A.

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In 2003, a jury convicted Nakai on each count in an 18-count indictment arising

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from a double murder on the Navajo Reservation in August 2001. Doc. 6 at 2-4. The

Relevant Legal Background.

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Documents filed in this civil action, No. CV-16-08310, are cited as “Docs.”
Documents filed in Nakai’s criminal case, No. CR-01-01072, are cited as “CR Docs.”
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After Nakai’s counsel filed objections on his behalf, Nakai filed a separate set of
“pro se objections.” See Doc. 51. The pro se objections violate the Court’s local rules and
will not be considered. See LRCiv 83.3(c)(2).
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indictment charged Nakai with nine substantive offenses and nine corresponding violations

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of 18 U.S.C. §§ 924(c) and 924(j). Section 924(c)(3) imposes extended prison sentences

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for use of a firearm in connection with crimes of violence, and § 924(j) requires a sentence

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of death or life in prison if § 924(c) applies and the underlying crime is murder as defined

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in 18 U.S.C. § 1111. See CR Doc. 280 at 1-2; 18 U.S.C. §§ 924(c)(3), 924(j)(1), 1111(a).

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Nakai’s nine § 924(c) convictions resulted in 720 months of incarceration following six

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consecutive life terms, all in addition to the concurrent life sentences he received for the

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nine substantive offenses. CR Doc. 280 at 2.

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For § 924(c)(3) and § 924(j) to apply in Nakai’s case, the jury needed to find that

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he used a firearm in a “crime of violence.” 18 U.S.C. § 924(c), (j). The statute defines a

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“crime of violence” as:

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an offense that is a felony and—

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(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or

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(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.

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18 U.S.C. § 924(c)(3). Subsection (c)(3)(A) is commonly known as the “force” or

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“elements” clause, and will be referred to in this order as the “force clause.” Subsection

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(c)(3)(B) commonly is called the “residual clause.” See United States v. Davis, 139 S. Ct.

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2319, 2324 (2019).

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In 2015, the Supreme Court held that a similar residual clause found in the definition

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of “violent felony” in the Armed Career Criminal Act (“ACCA”), 18 U.S.C § 924(e)(2)(B),

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was unconstitutionally vague. Johnson v. United States, 576 U.S. 591 (2015) (“Johnson

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II”). The Supreme Court later held that Johnson II “announced a substantive rule that has

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retroactive effect in cases on collateral review,” allowing defendants to invoke Johnson II

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to vacate their sentences in federal collateral review proceedings. See Welch v. United

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States, 136 S. Ct. 1257, 1268 (2016). In June 2019, the Supreme Court extended Johnson
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II to the definition of a “crime of violence” in § 924(c)(3)(B), holding that the residual

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clause was also unconstitutionally vague. Davis, 139 S. Ct. at 2324.

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B.

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Nakai’s first § 2255 motion, filed in October 2006, was denied in August 2007. See

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Nakai v. United States, Case No. 3:06-cv-02394-FJM-JCG, Doc. 2. In 2016, after Johnson

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II was decided, the Ninth Circuit granted Nakai’s application to file a second or successive

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§ 2255 motion. Doc. 3; see also 28 U.S.C. § 2255(h). The motion alleged, among other

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things, that eight of Nakai’s § 924 convictions were unconstitutional under Johnson II.

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Doc. 3-3 at 7, 10. The government filed a motion to dismiss Nakai’s motion, and in

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December 2017 Judge Boyle issued an R&R recommending that the motion be granted.

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Doc. 13. In April 2018, the Court dismissed the majority of Nakai’s § 2255 claims, but

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held that Nakai had properly raised the issue of whether some of his predicate offenses

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were no longer valid grounds for a § 924 conviction under Johnson II. See Doc. 17 at 4.

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The Court remanded the case for further briefing on the merits. Id. at 4.

Procedural History.

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Judge Boyle stayed the case in September 2018 to await resolution of various cases

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before the Ninth Circuit and Supreme Court. Doc. 48 at 5. In October 2020, Judge Boyle

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lifted the stay and ordered additional briefing on whether the predicate offenses for the

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§ 924 convictions remained “crimes of violence” after the Supreme Court’s decision in

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Davis. Id. In December 2020, after further supplemental briefing (Docs. 46-47), Judge

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Boyle issued an R&R recommending that Nakai’s § 2255 motion be granted with respect

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to counts 6 and 18 – Nakai’s § 924 convictions based on kidnapping – and be denied with

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respect to Nakai’s remaining § 924 convictions because the predicate offenses constitute

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crimes of violence. Doc. 48 at 1-2. Judge Boyle further recommended that a certificate of

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appealability be granted because reasonable jurists could debate his conclusions. Id. at 14.

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Nakai objects that the following § 924 convictions are based on predicate offenses that do

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not constitute crimes of violence: (1) first-degree murder (Counts 2 and 8); (2) felony

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murder (Counts 4, 12, and 16); and (3) carjacking (Count 10). See Doc. 49.

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R&R Standard of Review.

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court “must

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review the magistrate judge’s findings and recommendations de novo if objection is made,

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but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en

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banc). The Court is not required to conduct “any review at all . . . of any issue that is not

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the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

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Analysis.

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Nakai has not objected to Judge Boyle’s recommendation on Counts 6 and 18 (the

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§ 924 convictions based on kidnapping) or Count 14 (the § 924 conviction based on

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robbery).3 The Court will address Nakai’s specific objections below, accept Judge Boyle’s

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recommendations with respect to Counts 2, 8, and 10 (the § 924 convictions based on first-

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degree murder and carjacking), and grant Nakai’s § 2255 motion with respect to Counts 4,

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12, and 16 (the § 924 convictions based on felony murder).

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A.

Retroactive Applicability of Davis.

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Congress has erected a high bar for second or successive § 2255 motions. Nakai’s

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motion must “rel[y] on a new rule of constitutional law, made retroactive to cases on

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collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C.

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§ 2244(b)(2); see also 28 U.S.C. § 2255(h). As a threshold matter, the Court must

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determine whether the holding in Davis – that § 924(c)(3)’s residual clause is void for

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vagueness – applies retroactively to cases on collateral review.4

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The introduction to Nakai’s objection states that he “objects to the portions of the
Report that concern . . . Count 14 (predicate offense being robbery),” see Doc. 49 at 2, but
he never addresses this issue in his objection. Because he has made no specific objection
with respect to Count 14, the Court will not address it. See Fed. R. Civ. P. 72(b)(2) (the
party seeking de novo review must provide “specific written objections to the proposed
findings and recommendations” of the magistrate judge) (emphasis added).
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When its prerequisites are met, § 2255(h) provides that a second or successive
motion must be certified “as provided in section 2244 by a panel of the appropriate court
of appeals[.]” The Ninth Circuit authorized Nakai to file a second or successive motion,
but considered only whether he had made a prima facie showing “of possible merit to
warrant a fuller exploration by the district court.” Henry v. Spearman, 899 F.3d 703, 706
(9th Cir. 2018) (quoting Cooper v. Woodford, 358 F.3d 1117, 1119 (9th Cir. 2004))
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The Supreme Court and Ninth Circuit have not addressed the issue, but other circuits

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have concluded that Davis applies retroactively. See United States v. Reece, 938 F.3d 630,

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635 (5th Cir. 2019) (“the rule in Davis meets the standard for a new substantive rule” with

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retroactive application); United States v. Bowen, 936 F.3d 1091, 1097 (10th Cir. 2019)

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(“We first conclude that the Supreme Court’s ruling in Davis that § 924(c)(3)’s residual

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clause is void for vagueness is a new constitutional rule that is retroactive on collateral

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review”); In re Hammoud, 931 F.3d 1032, 1031 (11th Cir. 2019) (“[F]or purposes of

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§ 2255(h)(2), we conclude that, taken together, the Supreme Court’s holdings in Davis and

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Welch “necessarily dictate” that Davis has been made retroactively applicable to criminal

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cases that became final before Davis was announced.”) (internal quotation marks and

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citations omitted). The Court agrees with these cases. Davis applies retroactively to this

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case, particularly in light of the Supreme Court’s decision in Welch. Because the residual

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clause in § 924(c)(3)(B) is unconstitutionally vague, Nakai’s offenses can constitute crimes

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of violence only under the force clause in § 924(c)(3)(A).

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B.

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To determine whether a crime qualifies as a crime of violence, courts use a

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categorical approach. United States v. Calvillo-Palacios, 860 F.3d 1285, 1288 (9th Cir.

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2017). “[T]he facts of a given case are irrelevant. The focus is instead on whether the

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elements of the statute of conviction meet the federal standard.” Borden v. United States,

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141 S. Ct. 1817, 1822 (2021). Here, the relevant inquiry is the language of the force clause

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– whether the offense necessarily involves the “use, attempted use, or threatened use of

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physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). “If

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any – even the least culpable – of the acts criminalized do not entail that kind of force, the

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statute of conviction does not categorically match the federal standard, and so cannot serve

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as” a predicate offense for purposes of § 924(c)(3)(A). Borden, 141 S. Ct. at 1822.

Force Clause Analysis.

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(emphasis in Cooper); 28 U.S.C. § 2244(b)(3)(C). This determination does not preclude a
district court from determining whether the statutory threshold has in fact been met. See
United States v. Villa-Gonzalez, 208 F.3d 1160, 1164 (9th Cir. 2000) (“Villa-Gonzalez
contends that our grant of permission forecloses the district court from finding his motion
does not meet the statutory requirements. Villa-Gonzalez’s contention lacks merit.”).
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The Supreme Court has provided importance guidance on application of the

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categorical approach to statutory language like the force clause in § 924(c)(3)(A). In

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Leocal v. Ashcroft, 543 U.S. 1 (2004), the Court held that negligence cannot give rise to a

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crime of violence under language virtually identical to the force clause, which requires “a

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higher degree of intent than negligent or merely accidental conduct.” Id. at 9. In Borden,

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141 S. Ct. 1817, the Court held that recklessness cannot satisfy the essentially identical

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definition of “violent felony” found in 18 U.S.C. § 924(e)(2)(B). The reasoning of these

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cases will become important to the decision in this case, as discussed below.

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First-Degree Murder.

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Nakai moves to vacate Counts 2 and 8, the § 924 counts based on his predicate

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offense of first-degree murder. 18 U.S.C. § 1111(a) defines murder as “the unlawful killing

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of a human being with malice aforethought.” Unlike second-degree murder, which “may

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be committed recklessly . . . and need not be committed willfully or intentionally,” United

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States v. Begay, 934 F.3d 1033, 1040 (9th Cir. 2019), first-degree murder requires a higher

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standard of intent that includes “willful, deliberate, malicious, and premeditated killing[.]”

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18 U.S.C. § 1111(a).

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Nakai argues that first-degree murder is not a “crime of violence” under Johnson v.

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United States, 559 U.S. 133 (2010) (“Johnson I”), which addressed the meaning of the

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words “physical force” in the ACCA’s definition of a “violent felony,” a definition almost

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identical to § 924(c)(3)(A)’s definition of a “crime of violence.”

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§ 924(e)(2)(B)(i) (“violent felony” “has as an element the use, attempted use, or threatened

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use of physical force against the person of another.”). The Supreme Court acknowledged

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that the term “force,” in legalese, was commonly used in the context of common-law

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battery to mean “even the slightest offensive touching.” 559 U.S. at 139. Noting that this

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would be a “comical misfit” in the context of a violent felony statute, the Supreme Court

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concluded that “the phrase ‘physical force’ means violent force – that is, force capable of

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causing physical pain or injury to another person.” Id. at 140 (citations omitted).

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See 18 U.S.C.

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Nakai argues that first-degree murder does not satisfy this force requirement under

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the categorical approach because “there are non-violent, non-forceful ways to commit

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murder.” Doc. 46 at 5-6. He provides examples of poisoning, a parent withholding medical

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care from a child, or striking a match to start a fire in a building. Doc. 22 at 8-9.

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Judge Boyle correctly rejected this argument. The Ninth Circuit has stated that first-

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degree murder is “categorically a crime of violence under the [force] clause of § 924(c).”

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United States v. Arthur, 750 Fed. App’x. 540, 543 (9th Cir. 2018); see also United States

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v. Studhorse, 883 F.3d 1198 (9th Cir. 2018) (attempted first-degree murder is a “crime of

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violence” under a clause of the Immigration and Nationality Act virtually identical to the

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force clause of § 924(c)(3)(A)).

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The Supreme Court rejected Nakai’s hypothetical non-violent ways of committing

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murder in United States v. Castleman, 572 U.S. 157 (2014). The Court clarified that

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“physical force” encompasses even the indirect application of force, such as poisoning. Id.

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at 171; see also United States v. Gray, CR-15-08076-PCT-DGC, 2017 WL 3675383, at *4

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(D. Ariz. Aug. 25, 2017) (“Each of Defendants’ examples – using water to cause drowning,

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withholding food to cause starvation, infecting with a virus to cause death, and using fire

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to cause death – also employs a device to cause physical harm.”).

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Nakai objects that Castleman is distinguishable because the Supreme Court was

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analyzing the meaning of “physical force” in the context of a domestic violence

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misdemeanor statute, not a violent felony statute. See 572 U.S. at 165 (because domestic

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violence “is a term of art encompassing acts that one might not characterize as ‘violent’ in

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a nondomestic context,” the common law meaning of physical force, rather than Johnson

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I’s “violent force,” was applied). Nakai is correct that the definition of “force” depends on

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the context of the underlying statute. See, e.g., United States v. Melgar-Cabrera, 892 F.3d

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1053, 1064 (10th Cir. 2018) (together, Johnson I and Castleman “demonstrate that before

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a court can determine whether a predicate crime falls within a particular statute’s [force]

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clause, it must first determine whether the statute’s use of the word “force” requires

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“violent force” [as in Johnson I, analyzing §924(e)], or instead whether it requires the

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common-law meaning of force [as in Castleman, analyzing § 921(a)(33)(A)].”); see also

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United States v. Fitzgerald, 935 F.3d 814, 817 (9th Cir. 2019) (whether a crime requires

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Johnson I-level “violent” force depends on how the underlying statute defines the resulting

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injury produced). Nakai essentially argues that the indirect uses of force presented in his

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hypotheticals, while they may constitute “force” in the context of a Castleman-type

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domestic violence misdemeanor statute, do not constitute the type of “force” required for

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“crimes of violence” under the force clause of § 924(c)(3(A). Doc. 49 at 5.

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The Court does not agree. The Ninth Circuit has held that first-degree murder

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necessarily entails the use of violent force. Studhorse, 883 F.3d at 1206. Nakai contends

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that Studhorse is distinguishable because it addressed attempted murder rather than murder,

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but attempt crimes can constitute crimes of violence. See, e.g., Arellano Hernandez v.

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Lynch, 831 F.3d 1127, 1132 (9th Cir. 2016) (“We have ‘generally found attempts to

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commit crimes of violence, enumerated or not, to be themselves crimes of violence.’”)

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(quoting United States v. Riley, 183 F.3d 1155, 1160 (9th Cir. 1999)). The Ninth Circuit

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also held in Arthur, 750 F. App’x at 54, that first-degree murder is a crime of violence.

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Nakai objects that Arthur is an unpublished decision and not controlling, but the Court

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finds it persuasive in light of the Ninth Circuit cases on which it relies. See Ninth Circuit

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Rule 36-3. Nakai cites no contrary authority.

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First-Degree Felony Murder.

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Nakai was convicted of felony murder-robbery (Count 11) and felony murder-

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kidnapping (Counts 3 and 15), and moves to vacate his § 924(c) convictions associated

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with these offenses (Counts 4, 12, and 16). In recommending that this argument be

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rejected, Judge Boyle noted that the federal felony-murder statute, 18 U.S.C. § 1111(a),

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requires “malice aforethought,” which is a higher mental state than recklessness. Doc. 48

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at 10-11. Judge Boyle cited Umaña v. United States, 229 F. Supp. 3d 388 (W.D.N.C.

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2017), a case which distinguished between recklessness and malice aforethought in holding

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felony murder to be a crime of violence. Id. at 11.

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Nakai objects to this conclusion, arguing that felony-murder cannot constitute a

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crime of violence because the underlying felonies can be committed recklessly,

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negligently, or even accidentally. Docs. 22 at 13-14; 49 at 6-7 (citing Leocal, 543 U.S. at

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6-10); see also Dean v. United States, 556 U.S. 568, 575 (2009) (“The felony-murder rule

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is a familiar example: If a defendant commits an unintended homicide while committing

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another felony, the defendant can be convicted of murder.”).

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In response to this objection, the government does not adopt Judge Boyle’s analysis

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– it does not argue that felony murder is a crime of violence because it requires malice

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aforethought. Doc. 50 at 7-9. The government instead argues that felony murder in the

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Ninth Circuit is a specific-intent crime – it can be committed only when the defendant

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specifically intends to commit the underlying felony. Id. Because specific intent is “the

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highest mental state in criminal law” (id. at 8), the government argues that it forecloses any

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possibility that felony murder can be committed recklessly or negligently. Id.

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The Court is not persuaded by the analyses of Judge Boyle or the government.
a.

Malice Aforethought and Felony Murder.

The federal murder statute does require malice aforethought, and includes felony
murder, as shown by the following italicized language:
Murder is the unlawful killing of a human being with malice
aforethought. Every murder perpetrated by poison, lying in wait, or any
other kind of willful, deliberate, malicious, and premeditated killing; or
committed in the perpetration of, or attempt to perpetrate, any arson, escape,
murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse
or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of
a pattern or practice of assault or torture against a child or children; or
perpetrated from a premeditated design unlawfully and maliciously to effect
the death of any human being other than him who is killed, is murder in the
first degree.

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18 U.S.C. § 1111(a) (emphasis added).
To prove felony murder, however, the government need not prove malice
aforethought. The law implies malice aforethought if the defendant caused a death in the

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course of committing another felony. Indeed, the very definition of malice aforethought

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includes killings committed in the course of another felony. Malice aforethought is:

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The requisite mental state for common-law murder, encompassing
any one of the following: (1) the intent to kill, (2) the intent to inflict
grievous bodily harm, (3) extremely reckless indifference to the value of
human life (the so-called “abandoned and malignant heart”), or (4) the intent
to commit a dangerous felony (which leads to culpability under the felonymurder rule).
Malice Aforethought, Black’s Law Dictionary (11th ed. 2019).

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Thus, a defendant who causes a death in the course of committing another felony

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will be found to possess malice aforethought even if the death itself was caused by

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recklessness, negligence, or a simple accident. See United States v. Miguel, 338 F.3d 995,

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1006 (9th Cir. 2003) (To prove felony murder under § 1111(a), “the Government need only

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prove the intent to commit the felony, not the intent to inflict the injury.”); United States v.

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Chanthadara, 230 F.3d 1237, 1258 (10th Cir. 2000) (“Because malice aforethought is

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proved by commission of the felony, there is no actual intent requirement with respect to

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the homicide.”); Schad v. Arizona, 501 U.S. 624, 640 (1991) (at common law, the intent to

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kill and intent to commit a felony were “alternative aspects of the single concept of ‘malice

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aforethought’”); see also United States v. Vederoff, 914 F.3d 1238, 1247 (9th Cir. 2019)

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(felony murder as a method of second-degree murder was not a “crime of violence” under

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a force clause similar to § 924(c) because state law “impose[d] liability for negligent or

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even accidental felony murder”).

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In crafting the doctrine of felony murder, the law has made a policy choice. Malice

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aforethought is supplied by the mere fact that the defendant caused death while committing

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another felony.

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accidentally by holding them strictly liable for the killings that are the result of the felony

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or an attempted one.” United States v. Tham, 119 F.3d 1501, 1509 (11th Cir. 1997); see

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also People v. Cavitt, 91 P.3d 222 (Cal. 2004) (“The purpose of the felony-murder rule is

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to deter those who commit the enumerated felonies from killing by holding them strictly

The policy purpose is to “deter felons from killing negligently or

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responsible for any killing committed by a cofelon, whether intentional, negligent, or

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accidental, during the perpetration or attempted perpetration of the felony.”). In effect,

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“the commission of the specified felony supplies the constructive or implied malice

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necessary to satisfy the malice aforethought element of § 1111(a) felony murder.” United

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States v. Pearson, 159 F.3d 480, 486 (10th Cir. 1998) (emphasis added).

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Thus, the malice aforethought required for felony murder is not an actual, proven

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mental state. It is a constructive or implied mental state designed to deter felons from

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recklessly or negligently causing death. As a result, the Court cannot rely on malice

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aforethought in Nakai’s felony-murder convictions as supplying the intentional mental

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state necessary for a crime of violence under Leocal, Borden, and their progeny.
b.

The Government’s Specific Intent Argument.

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As noted, the government argues that felony murder is a crime of violence because

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it requires proof of specific intent under Ninth Circuit law. The government relies on

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United States v. Lilly, 512 F.2d 1259 (9th Cir. 1975), which held that specific intent to

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commit the underlying felony is required under § 1111(a). Id. at 1261. But Lilly appears

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to be limited to felony murder based on robbery. The decision focused on the fact that

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robbery under 18 U.S.C. § 2111 required specific intent when § 1111(a) was enacted, and

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Congress therefore likely assumed specific intent would continue to be needed for robbery.

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Id. It does not address § 1111(a) more broadly.

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The government does cite other Ninth Circuit cases which seem to suggest that Lilly

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applies to § 1111(a) more generally. See United States v. Bordeau, 168 F.3d 352, 356 (9th

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Cir. 1999) (Lilly “held that robbery as an element of felony murder under the felony murder

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statute, 18 U.S.C. § 1111, required specific intent, not because of anything contained in

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§ 2111 but because otherwise an individual could be convicted of first-degree murder

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without having the specific intent to commit any crime”). But some Ninth Circuit cases

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suggest that the intent normally required for the underlying felony, whether specific or

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general, is the only intent requirement for felony murder under § 1111(a). See United

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States v. Chischilly, 30 F.3d 1144, 1160 (9th Cir. 1994) (“conviction for felony murder

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under 18 U.S.C. § 1111 requires the commission of an enumerated felony with the requisite

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mens rea for the underlying offense.”) (emphasis added).5

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The Court need not sort out the precise proof requirements for felony murder,

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however, because even if the government is correct, a specific intent to commit the

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underlying felony would not be enough to satisfy the Supreme Court’s crime-of-violence

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cases. Under Leocal and Borden, the intentional conduct must be with respect to the use

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of force against another.

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The force clause states that a crime of violence “has as an element the use, attempted

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use, or threatened use of physical force against the person or property of another[.]” 18

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U.S.C. § 924(c)(3). Interpreting essentially the same language from another statute, Leocal

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held that the words “use of force” and “against another” imply volitional action and require

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more than negligence:

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The critical aspect of § 16(a) is that a crime of violence is one involving the
‘use . . . of physical force against the person or property of another.’ As we
said in a similar context in Bailey, ‘use’ requires active employment. . . . The
key phrase in § 16(a) – the ‘use . . . of physical force against the person or
property of another’ – most naturally suggests a higher degree of intent than
negligent or merely accidental conduct.
543 U.S. at 9 (emphasis added).

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The Supreme Court’s recent decision in Borden takes the same tack in interpreting

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the definition of “violent felony” in the ACCA, a definition which uses essentially the same

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language as the force clause at issue in this case and the statute addressed in Leocal – a

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crime which “has as an element the use, attempted use, or threatened use of physical force

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The Ninth Circuit has no model jury instruction for first-degree felony murder, and
instead refers the reader to the Tenth and Eleventh Circuit jury instructions. See Ninth
Circuit Model Crim. Instr. 8.107 cmt. Those instructions require that the defendant
specifically intend to commit the underlying felony. See Tenth Cir. Model Crim. Jury Instr.
2.52.1 (first-degree felony murder under § 1111 is “a killing that occurs during the knowing
and willful commission of some other specified felony offense.”) (emphasis added);
Eleventh Cir. Model Crim. Jury Instr. O45.2 (felony murder under § 1111 is “a killing that
takes place during the knowing and willful commission of some other specified felony
crime.”) (emphasis added). This cross-reference would seem to confirm that a specific
intent to commit the underlying felony is required in the Ninth Circuit. That apparently is
how the jury was instructed in Nakai’s case. See Doc. 47 at 10-11.
12

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against the person of another[.]” 18 U.S.C. § 942(e)(2)(B).6 Borden held that “[t]he critical

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context here is the language that ‘against another’ modifies the ‘use of physical force.’ As

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just explained, ‘use of force’ denotes volitional conduct.” 141 S.Ct. at 1826. The Court

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accordingly held that a violent felony as defined in the ACCA is “best understood to

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involve not only a substantial degree of force, but also a purposeful or knowing mental

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state – a deliberate choice of wreaking harm on another, rather than mere indifference to

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risk.” Id. at 1830. The defendant must intend to use force against another.

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The Ninth Circuit has also recognized that, under the Supreme Court’s reasoning in
Leocal, the object of a defendant’s intent must be the use of force against another:
Whereas the word “use,” taken alone, could “in theory” connote the
accidental employment of force, it would be “much less natural to say that a
person actively employs [i.e., uses] physical force against another person by
accident.” Thus, the [Supreme] Court reasoned, 18 U.S.C. § 16(a)’s
requirement that force be used “against” someone or something suggested
that crimes of violence require “a higher degree of intent than negligent or
merely accidental conduct.”

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Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1127 (9th Cir. 2006).7

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See United States v. Watson, 881 F.3d 782, 784 (9th Cir. 2018) (noting that the
interpretation of “physical force” in § 924(e)(2)(B)(i)’s definition of “violent felony” also
applies to § 924(c)(3)(A)’s definition of “crime of violence.”).
7

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The Ninth Circuit took a somewhat different approach in Vederoff. See 914 F.3d
at 1247. The court noted that felony murder statutes generally fall into three categories:
those that (1) penalize accidental conduct and non-dangerous felonies; (2) specifically
enumerate the types of felonies constituting felony murder; and (3) require the predicate
offense to be a dangerous felony. Id. Because the state statute in Vederoff fell into the first
category, broadly allowing liability to be imposed “for negligent or even accidental felony
murder,” the Ninth Circuit held that the state’s felony murder statute was not a crime of
violence. Id. at 1248. At least one district court has read Vederoff to suggest that felony
murder statutes falling into the remaining categories – including those, such as § 1111,
which specifically enumerate felony offenses – qualify as crimes of violence. See Shrader
v. United States, No. 1:09-CR-00270, 2019 WL 4040573, at *3 (S.D.W. Va. Aug. 27,
2019). But Vederoff addressed the enumerated offenses clause of the Federal Sentencing
Guidelines § 4B1.2(a), which defines a crime of violence as “murder, voluntary
manslaughter, kidnapping, [and] aggravated assault[.]” Vederoff, 914 F.3d at 1243
(quoting § 4B1.2(a)). In its discussion of the Guidelines’ force clause – the relevant
comparison here – the Ninth Circuit made clear that negligent or accidental conduct was
not sufficient for a crime of violence. Id. at 1248.
13

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The point is simply this: the intentional action required for a crime of violence under

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the force clause is the intentional use of force against another. It is not enough, as the

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government argues, that felony murder requires the intentional commission of the

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underlying felony. One can intentionally commit a felony and, in the process, accidentally

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cause the death of another. That scenario may satisfy the requirements for felony murder,

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but it does not involve the intentional use of force against another and therefore is not a

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crime of violence under the force clause as interpreted by the Supreme Court.

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The government argues that several district courts have found felony murder to be

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a crime of violence. In Shrader v. United States, No. 1:09-CR-00270, 2019 WL 4040573

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(S.D.W. Va. Aug. 27, 2019), the court held that felony murder as a method of first-degree

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murder was a “violent felony” under the ACCA’s force clause because the state law in

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question “holds defendants who commit enumerated felonies to be legally responsible for

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deaths that occur as a result of those felonies, as if they purposefully committed the

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murder.” Id. at *3. In Umaña, the court noted that first-degree murder under North

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Carolina law – which included felony murder – was a “crime of violence” under the force

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clause because the requisite “malice aforethought” was supplied by commission of the

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underlying felony and involved a higher degree of intent than reckless, negligent, or

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accidental conduct. See 229 F. Supp. 3d at 394-95. The Court respectfully disagrees with

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these decisions for reasons stated above. The imputation of malice aforethought from the

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mere commission of a felony – even the intentional commission of a felony – does not

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prove that the defendant intentionally used force against another as required by Leocal and

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Borden.

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negligently causes the death of another. This is not a crime of violence under the force

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clause.8

To the contrary, felony murder can occur when a defendant recklessly or

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The government also cites United States v. Vickers, 967 F.3d 480 (5th Cir. 2020)
in which the Fifth Circuit held that felony murder was a violent felony under the ACCA
because, at the time of the defendant’s conviction, felony murder under the relevant state
statute “required a mental state of recklessness or higher,” which the Court noted would
have required that defendants “have taken active steps to ‘use’ physical force.” But Vickers
was vacated by the Supreme Court in light of Borden. See Vickers v. United States, No.
20-7280, --- S.Ct. ---, 2021 WL 2519058, at *1 (U.S. June 21, 2021).
14

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Carjacking.
Nakai moves to vacate Count 10, the § 924 count associated with his predicate

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offense of carjacking.

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“[w]hoever, with the intent to cause death or serious bodily harm[,] takes a motor vehicle

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. . . from the person or presence of another by force and violence or by intimidation[.]” 18

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U.S.C. § 2119 (emphasis added). In United States v. Gutierrez, 876 F.3d 1254 (9th Cir.

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2017), decided after Johnson I, the Ninth Circuit joined several other circuits in concluding

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that carjacking is a crime of violence under the force clause of §924(c) because the term

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“intimidation” still requires “the threatened use of violent physical force.” Id. at 1256.

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Citing Gutierrez, Judge Boyle correctly concluded that carjacking is a crime of violence

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under § 924(c)(3)(A). Doc. 48 at 12.

The federal carjacking statute, 18 U.S.C. § 2119, penalizes

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Nakai acknowledges the holding of Gutierrez, but argues that its “logic is flawed”

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because including violent physical force in the definition of “intimidation” renders the term

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superfluous. Doc. 49 at 8-9. The Court need not pause to address this argument, however,

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because Gutierrez is binding precedent the Court must apply. The Court will adopt Judge

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Boyle’s recommendation and deny Nakai’s motion to vacate Count 10.

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Certificate of Appealability.

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Judge Boyle recommends granting a certificate of appealability. Because Nakai’s

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petition raises current and debated issues, the Court will grant the certificate. See Slack v.

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McDaniel, 529 U.S. 473, 484 (2000).

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IT IS ORDERED:

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1.

Judge Boyle’s R&R (Doc. 48) is accepted in part and rejected in part.

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2.

Nakai’s § 2255 motion (Doc. 3) is denied with respect to Counts 2 and 8

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(§ 924 convictions based on first-degree murder), Count 10 (§ 924

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conviction based on carjacking), and Count 14 (§ 924 conviction based on

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robbery). The motion is granted with respect to Counts 6 and 18 (§ 924

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convictions based on kidnapping) and Counts 4, 12, and 16 (§ 924

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convictions based on felony murder).

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3.

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Nakai’s convictions and sentences with respect to Counts 4, 6, 12, 16, and
18 are vacated.

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4.

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Dated this 11th day of August, 2021.

A certificate of appealability is granted.

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