PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20
- 9

UNITED STATES OF AMERICA , Plaintiff

– Appellee ,

v. RICHARD ALLEN JACKSON , Defendant

– Appellant

. Appeal from the United States District Court for the Western District of North Carolina , at Asheville

. Martin K. Reidinger , Chief District Judge. ( 1:00

- cr - 00074

- MR

- 1; 1:16

- cv 00212

- MR )
Argued : March 10, 2022 D ecided: April 20, 2022

Before NIEMEYER, MOTZ, and KING , Circuit Judges.

Affirmed by published opinion

. Judge Motz wrote the opinion, in which Judge Niemeyer and Judge King joined.

ARGUED: Andrew Reed Childers, FEDERAL COMMUNITY DEFENDER OFFICE FOR THE EASTERN DISTRICT OF PENNSY LVANIA, Philadelphia, Pennsylvania, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Shawn Nolan, FEDERAL COMMUNITY DEFENDER OFFICE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, Philadelphia, Pennsylvania, for Appellant. Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. USCA4 Appeal: 20-9 Doc: 67 Filed: 04/20/2022 Pg: 1 of 142 DIANA GRIBBON MOTZ, Circuit Judge: Convicted of causing the death of another through the use of a firearm during a

“ crime of violence ” in violation of 18 U.S.C. § 924(c) and s entenced to death pursuant to 18 U.S.C. § 924(j) , Richard Allen Jackson moves for relief under 28 U.S.C. § 2255

. He contends that the G overnment failed to prove that he comm itted a “ crime of violence. ” He is wrong. T he jury unanimously found Jackson guilty of federal premeditated first

- degree murde r , which constitutes a qualifying “ crime of violence

. ” Accordingly, we affirm the district court’s denial of Jackson’s successive § 2255 motion

. I. We assume familiarity with the facts underlying this case, which are set out in detail
in United States v. Jackson , 327 F.3d 273, 279

– 81 (4th Cir. 2003). To summa rize, Jackson confessed that h e kidnapped twenty

- two

- year - old Karen Styles as she went for a run in the Pisgah National Forest in North Carolina in October 1994 . Jackson duct

- taped Styles to a tree and raped her. He then shocked her with a stun gun above her left breast and multiple times in her pubic area. When Styles began to scream after the duct tape Jackson had placed on her mouth became loose, Jackson shot her once in the head, killing her.
In 1995, a North Carolina state jury convicted Jackson of first

- degree murder, first

degree rape, and first

- degree kidnapping

. T he court, consistent with the jury’s recommendation, imposed the death penalty

. But i n 1998, t he Supreme Court of North Carolina vacated Jackson’s conviction s and sentence after determining that the police violated his Miranda rights when interrogating him

. See State v. Jackson , 497 S.E.2d 409 (N.C. 1998 ), abrogated by State v. Buchanan , 543 S.E.2d 823 (N.C. 2001). In March 2000, USCA4 Appeal: 20-9 Doc: 67 Filed: 04/20/2022 Pg: 2 of 143 p rior to a planned second sta te trial, Jackson pled guilty to second

- degree murder and related offenses . A state court sentenced him to twenty

- five to thirty

- one years ’ i mprisonment

. Then, i n October 2000, a federal grand jury returned a single

- count superseding indictment charging Jackson with : 1) using and carrying a firearm during and in relation
to a “ crime of violence ” in violation of 18 U.S.C. § 924(c) and 2) using and carrying a firearm during a “ crime of violence ” resulting in death in violation of 18 U.S .C. § 924(j). 1
The G overnment alleged that Jackson committed three “ crimes of violence ” : 1) federal first

- degree murder, in violation of 18 U.S.C. § 1111(a); 2) federal kidnapping in violation of 18 U.S.C. § 1201(a)(2); and 3) federal aggravated sexual abuse, in violation of 18 U.S.C. § 2241(a)(1)

– (2). In 2001, a federal jury unanimously voted to convict Jackson and recommended he be sentenced to death. The two

- page verdict sheet reports the jury’s unanimous finding that Jackson committed 1) “ the crime of kidnap [ p ] ing Karen Styles ” ; 2) “ the crime of aggravated sexual abuse of Karen Styles ” ; and 3) “ the crime of the murder of Karen Sty les .” As to the murder conviction , the jury specifically found that Jackson committed the murder of Karen Styles 1) “ with malice aforethought, willfully, deliberately, maliciously and with premeditation ” ; 2) “ during the perpetration of kidnap[p]ing ” ; and 3)

“ during the perpetration of aggravated sexual abuse. ” On direct appeal, we affirmed

1 18 U.S.C. § 924(j) provides that “[a] person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall

— (1) if the killing is a murder (as defined in section 1111), be punished by death or by imprisonment f

or any term of years or for life.” USCA4 Appeal: 20-9 Doc: 67 Filed: 04/20/2022 Pg: 3 of 144 Jackson’s conviction and sentence. See Jackson , 327 F.3d at 279

. In 2009, t he district court denied Jackson’s first motion for post

- conviction relief under 28 U.S.C. § 2255 . It subsequently denied Jackson a certificate of appealability, as did this Court. In 2015, the Supreme Court issued its decision in Johnson v. United States , 576 U.S. 591 (2015). There, the Court struck down the residual clause of the Armed Career Criminal
Act (ACCA) , 18 U.S.C. § 924(e)(2)(B)(ii), as unconstitutionally vague. This meant that to serve as a predicate offense under the ACCA , a “ violent felony ” now had to satisfy the force (or e lements ) c lause. 2 I n 2016, the Court held that Johnson applies retroactively to cases on collateral review. See Welch v. United States , 578 U.S. 120 (2016). Given these developments in the law, we authorized Jackson to file a successive § 2255 motion relying

on Johnson and Welch

. The district court stayed action on Jackson’s successive § 2255 motion pending multiple subsequent decisions from the Supreme Court and this C ourt. Most relevant here,
i n 2019, the Supreme Court applied Johnson ’s reasoning to 18 U.S.C. § 924(c), the statute under which the federal jury convicted Jackson. See United States v. Davis , 139 S. Ct. 2319 (2019). In doing so, it struck down the r esidual c lause of 18 U.S.C. § 924(c)(3)(B) as unconstitutionally vague. Id. at 2336. Post

- Davis , an underlying “ crime of violence ” must satisfy the f orce (or elements) c lause of § 924(c)(3)(A) . That is, it must “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person or

2 To satisfy the force (or elements) clause, the “violent felony” must “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). USCA4 Appeal: 20-9 Doc: 67 Filed: 04/20/2022 Pg: 4 of 145 property of another.” We subsequently held that Davis established a new rule of constitutional law made retroactive on collateral review

. 3 See In re Thomas , 988 F.3d 783, 786 (4th Cir. 2021)

. In March 2020, the district court granted the G overnment’s motion to dismiss Jackson’s successive § 2255 motion and denied Jackson a certificate of appealability. The court did so because in its view, both murder and aggravated sexual abuse qualified as

“ crimes of violence ” under § 924(c)(3)(A)

. The district court relied on our prior decisions , In re Irby , 858 F.3d 231 (4th Cir. 2017) , and United States v. Mathis , 932 F.3d 242 (4th Cir. 2019) , to hold that “the offense of murder in the first degree is unq uestionably a crime of violence under the f orce c lause.” In Irby , we reasoned that “[c]ommon sense dictates that murder is categorically a crime of violence under the force clause

. . . . In sum, one cannot unlawfully kill another human being without a use of physical force capable of causing physical pain or injury to another.” 858 F.3d at 237

– 38

. In Mathis , we relied on Irby to hold that the Virginia first

- degree murder statute, Va. Code § 18.2

- 32 (which is almost identical to the federal first

- degree murder statute at issue here in defining both premeditated murder and felony murder as first

- degree murder) , is categorically a “ crime of violence. ” See 932 F.3d at 265. Critically, the district court d enied § 2255 relief prior to the Supreme Court’s decision in Borden v. United States , 141 S. Ct. 1817 (2021). Borden holds that a criminal offense that requires only a mens rea of reckless ness cannot qualify as a “violent felony”

3 For this reason, the G overnment’s first argument, that procedural default bars Jackson’s § 2255 motion because he did not raise this issue on direct appeal, fails. USCA4 Appeal: 20-9 Doc: 67 Filed: 04/20/2022 Pg: 5 of 146 unde r the force (or elements) clause of the ACCA. Id . at 1821

– 22 , 1834

. “I n light of the striking similarities [in the] definitions [of “ crime of violence ” in § 924(c) and “ violent felony ” in the ACCA], the court decisions interpreting one such definition are persuasive as to the meaning of the other[]

. ” United States v. McNeal , 818 F.3d 141, 153 n.9 (4th Cir. 2016)

. 4 Jackson contends that Borden requires reversal of the district court’s denial of his successive § 2255 motion.
We granted Jackson a certificate of appealability and now consider that question.
II. To support a conviction under § 924(c) for using or carrying a firearm during and in relation to a “ crime of violence, ” the G overnm ent need only prove one qualifying predicate offense

. See United States v. Said , 26 F.4th 653, 659 (4th Cir. 2022) (“[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.”). That crime must be 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). This use of force must be “purposeful or knowing , ” Borden , 141 S. Ct. at 182 8 , and have the “potential [] ” to “cause physical pain or injury.” Stokeling v. United States , 139 S. Ct. 544, 554 (2019). To determine whether a felony meets this definition and thus constitutes a “ crime of violence , ” we generall y use the categorical approach. See United States v. Roof , 10

4 The Government does not argue that we should not apply Borden to § 924(c) and we see no reason not to do so. See United States v. Toki , 23 F.4th 1277, 1281 (10th Cir. 2022) (“[A]fter Borden , an offense that can be committed recklessly is not categorically a ‘crime of violence’ under § 924(c).”). USCA4 Appeal: 20-9 Doc: 67 Filed: 04/20/2022 Pg: 6 of 147 F.4th 314, 398 (4th Cir. 2021) , cert. pending (2022). Th at is , we “ look to whether the statutory elements of the offense necessarily require the use, attempted use, or threatened use of physical force.” United States v. Simms , 914 F.3d 229, 233 (4th Cir. 2019) (en banc)

. We consider only the elements of the crime as def ined in the statute, not the facts particular to the case at hand. Thus, we ask whether the “most innocent conduct” criminalized by the statute meets the definition of a “ crime of violence. ” Roof , 10 F.4th at 398. In certain circumstances, we apply a “variant” of the categorical approach referred to as the modified categorical approach. Descamps v. United States , 570 U.S. 254 , 257 (2013). We use the modified categorical approach when the statute at issue is divisible. Divisible statutes set forth “ multiple, alternative versions of the crime ” with distinct elements, i d . at 262 , while indivisible statutes merely set out different means of completing the crime

. Elements, as opposed to means , are the “ ‘ constituent parts ’ o f a crime’s legal definition ” that the “ prosecution must prove to sustain a conviction ” and which “ the jury must find beyond a reasonable doubt to convict the defendant. ” Mathis v. United States , 136 S. Ct. 2243, 2248 (2016) (citations omitted)

. III. With this history and these controlling legal principles in mind, we turn to Jackson’s challenge to the denial of his successive § 2255 motion , which we review de novo. United States v. Mayhew , 995 F.3d 171, 176 (4th Cir. 2021)

.

A. USCA4 Appeal: 20-9 Doc: 67 Filed: 04/20/2022 Pg: 7 of 148 Recall that the federal jury found Jackson guilty of first

- degree murder, first

- degree aggravated sexual abuse , and first

- degree kidnapping. Jackson maintains that none of the se crimes constitute s a “ crime of violence ” under § 924(c). Because conviction under § 924(c) requires proof of only one underlying “ crime of violence , ” we need only consider the first

degree murder statute

. 5
Th at statute, 18 U.S.C. § 1111(a) , defines four types of first

- degree murder as follows: Murder is the unlawful killing of a human being with malice aforethought. Every murder [1] perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or [2] committed in the perpetration of, or atte mpt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or [3] perpetrated as part of a pattern or practice of assault or torture against a child or children; or [4] 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. § 1111(a) (enumeration a dded)

. Jackson argues that § 1111(a) is a single indivisible statute to which we apply the categorical approach. He further contends that felony murder, the conduct delineated in the second clause of the second sentence of this assertedly indivisible statute , requires only a mens rea of rec klessness and so its commission cannot qualify as a “ crime of violence. ”
I f the statute is indivisible , he is correct . This is so because it is the most innocent conduct criminalized by a n indivisible statute that must categorically meet the definition o f a “ crime

5 Thus, we need not re ach the question of whether aggravated sexual abuse is also a

“ crime of violence. ” We have previously held that federal kidnapping does not qualify as a “ crime of violence

. ” S ee United States v. Walker , 934 F.3d 375, 379 (4th Cir. 2019)

. USCA4 Appeal: 20-9 Doc: 67 Filed: 04/20/2022 Pg: 8 of 149 of violence

. ” F elony murder cannot qualify as a “ crime of violence ” because it requires only the mens rea necessary to attempt or complete the underlying felony (i.e., arson, escape, etc.) . That mens rea is not more than recklessness and thus, does not satisfy Borden

. 6
But the G overnment maintains that the federal first

- degree murder statute is divisible and sets out four alternative versions of first

- degree murder . If this is so, then the modified categorical approach applies

. That means we examine whether the particular version of first

- degree murder committed by Jackson is a “ crime of violence

. ” I f the statute is divisible and the jury found Jackson guilty of a version of federal f irst

- degree murder that requires an intentional mens rea (such as premeditated murder) , Borden provides him no assistance

. B.
We turn to the critical issues in this appeal : whether § 1111(a) is divisible and if so, whether the version of first

- degree murder committed by Jackson qualifies as a “ crime of violence ” sufficient to support his conviction of violating 18 U.S.C. § § 924(c) and (j)

. Section 1111(a) is phrased alternatively

. The second sentence contains four separate components , the first two of which are relevant here

. E ach component is separated

6 The Governme nt has acknowledged this result of Borden in another case

. See Supplemental Brief f or t he United States at 18, United States v. King , Nos. 18

- 2800, 18

- 2877 (8th Cir. Mar. 30, 2022) (“The Government’s position here . . . acknowledges the consequence that s ome forms of federal first

- degree murder, namely first

- degree felony murders predicated on felonies that do not require the use of force against a person, are not crimes of violence. That position is not taken lightly, but after Borden , it is what the categorical approach requires.”). USCA4 Appeal: 20-9 Doc: 67 Filed: 04/20/2022 Pg: 9 of 1410 by a semicolon followed by the word “or.” The first component of § 1111(a) sets out premeditated murder as a type of first

- degree murder, while the second co mponent sets out felony murder as a type of first

- degree murder

. Each of these component s requires the
Government to prove a unique element that the jury must find unanimously; the first component requires proof of premeditation, and the second requires p roof of the accomplishment (or attempted accomplishment) of a listed felon y . The refore, these two components list alternative versions of first

- degree murder , which makes the statute divisible. 7 Several indicia of divisibility support this conclusion. First, the text of § 1111(a) describes the alternative versions of first

- degree murder by using the disjunctive

. While not dispositive, “[w]hen a criminal statute is phrased disjunctively it serves as a signal that it may well be divisible.” United States v. Allred , 942 F.3d 641, 649 (4th Cir. 2019)

. Further, t he underlying conduct for premeditated murder differs significantly from the underlying conduct for felony murder. To be guilty of premedi tated murder, the Government must prove a person intend ed to kill the victim. In contrast, proof of felony

7 Jackson ’s contention , that in Schad v. Arizona , 501 U.S. 624 (1991) , the Supreme Court established that § 1111(a) is indivisible , is meritless. There, the Supreme Court simply held that the U nited Stat es Constitution permitted the Supreme Court of Arizona to uphold a state conviction of first

- degree murder based on a general verdict that combined findings of premeditation and felony murder. Id

. at 630

– 31. The Court expressly disclaimed any opinion on whether the Arizona statute was divisible; the Supreme Court of Arizona had already held that it was not. See id. at 636 (“If a state’s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than i ndependent elements of the crime, we simply are not at liberty to ignore that determination.”). In contrast, the question here is not whether it would be constitutional to combine premeditated and felony murder, but whether Congress has in fact done so

. USCA4 Appeal: 20-9 Doc: 67 Filed: 04/20/2022 Pg: 10 of 1411 murder does not require proof of intent bu t rather proof of the (attempted) perpetration of a listed crime. In other words, the two rest on differe nt formulations and “ e ach formulation of the crime involves a different type of conduct.” United States v. Vinson , 794 F.3d 418, 425 (4th Cir.), rev’d on reh’g on other grounds , 805 F.3d 120 (4th Cir. 2015). “That the kind of conduct proscribed by the different formulations . . . differs quite significantly suggests that . . . the different formulations should be treated as separate crimes warranting the use of the modified categorical approach.” Id

. 8
T he r ecord in this case reinforces th is conclusion as to the divisibility of § 1111(a)

. A court may “pee k at the record documents . . . [to] determin[e] whether the listed items are elements of the offense.” Mathis , 136 S. Ct. at 2256

– 57 (cleaned up)

. Doing so reveals that the indictment d oes not simply charge Jackson with first

- degree murder. Instead, it states that Jackson “unlawfully killed a human being, Karen Styles, with malice aforethought , by shooting her with the firearm [1] willfully, deliberately, maliciously, and with premeditation, and [2] in the perpetration and attempted perpetration of a felony, to wit: kidnapping and aggravated sexual abuse,” i.e. , that Jackson separately committed 1) premeditated murder and 2) felony murder. 9 (enumeration added).

8 Jackson notes that the statute sets out the same penalty for all four versions of first

degree murder listed in § 1111(a). Reply Br. at 10. But while the existence of different penalties for different segments of a statute necessitates finding divisibil ity, the absence of distinct punishments is not dispositive. See Mathis , 136 S. Ct. at 2256. 9 We note that indictments in other cases have similarly been held to demonstrate that prosecutors charge defendants with a specific alternative version of fede ral first

- degree murder, not first

- degree murder in general. See, e.g ., United States v. Lespier , 725 F.3d 437, 443 n.4 (4th Cir. 2014) (quoting the indictment , which charged the defendant with premeditated murder); United States v. Higgs , 353 F.3d 281, 299 (4th Cir. 2003) (quoting (Continued) USCA4 Appeal: 20-9 Doc: 67 Filed: 04/20/2022 Pg: 11 of 1412 The jury instructions also point toward divisibility. T he district court specifically instructed the jury that to convict it had to “unanimously agree that the G overnment has proved beyond a reasonable doubt that the defen dant committed murder in one of the three manners alleged” and that it had to “unanimously agree on the same one.” This confirms that each component of § 1111(a) is a separate crime : to convict, each member of the jury had to agree that Jackson committed one of those crimes

. If premeditated murder and felony murder were merely means of committing a single crime as Jackson urges, the jury could have found Jackson guilty of first

- degree murder in the absence of unanimous agreement as to the type of murder he committed. The jury could have reach ed a verdict of first

- degree murder if some jurors found Jackson guilty of premeditated murder (but others did not), while some jurors found Jackson guilty of felony murder ( but others did not). The district court i nstructed the jury that it could not convict Jackson on this basis. Finally, we may also look to the verdict form

. See Johnson v. United States , 559 U.S. 133, 144 (2010). Here, the verdict form exactly matches the jury instructions. The verdict form directed the jury to decide specifically whether Jackson committed the murder of Karen Styles 1) “with malice aforethought, willfully, deliberately, maliciously and with premed itation” ; 2) “during the perpetration of kidnap[p]ing” ; and 3) “during the perpetration of aggravated sexual abuse.” The jur ors clearly indicated, by the check mark s

the indictment , which separately charged the defendant with premeditated murder and felony murder.). In Higgs , we affirmed the defen dant’s convictions of multiple counts of premeditated murder and multiple counts of felony murder in violation of § 1111(a). Id

. at 313

– 14, 334. USCA4 Appeal: 20-9 Doc: 67 Filed: 04/20/2022 Pg: 12 of 1413 they placed next to all three of these crime s on the verdict form, that they found Jackso n guilty of all three

. Accordingly , we apply the modified categorical approach to this divisible statute

. To do so, w e consult these same record documents to determine which version of first

degree murder Jackson committed. See id. at 144; Shepard v. Un ited States , 544 U.S. 13,
21

– 23 (2005). T he jury unanimously and unambiguously found that Jackson committed
two versions of first

- degree murder : premeditated murder and felony murder (through the commission of two separate felonies). Jackson argues that we cannot rely on the modified categorical approach to affirm on the basis that premeditated murder is a “ crime of violence ” because the “ Shepard documents do not prove with certainty that the § 924(c) predicate upon which Mr. Jackson was nece ssarily convicted was premeditated murder.” Reply Br. at 18. T hat argument fails

. T he verdict sheet ( a Shepard document ) plainly shows that the jury unanimously found that Jackson committed premeditated murder. As to this finding, the jury could not ha ve been clearer. Undoub t edly, federal premedi t ated first

- degree murder is a “ crime of violence

. ” Jackson does not eve n argue to the contrary. Moreover, federal p remeditated murder requires an intentional mens rea and thus does not in any way violate Borden ’s requirement

. 141 S. Ct. at 1821

– 22 , 1834

. And premeditated murder necessarily requires the use of

“ violent force

— that is, force capable of causing physica l pain or injury to another person.” Johnson , 559 U.S. at 140. Indeed, to commit federal p remeditated first

- degree murder, a death

- results crime, is to intentionally inflict the greatest physical injury imaginable

— death. See Roof , 10 F.4th at 401

. Thus, p remeditated murder in violation of § 1111(a) is USCA4 Appeal: 20-9 Doc: 67 Filed: 04/20/2022 Pg: 13 of 1414 categorically a “ crime of violence. ” And this “ crime of violence ” constitutes a valid underlying crime sufficient to support Jackson’s conviction of violating §§ 924(c) and (j). Accordingly, his succ essive § 2255 motion fails

. I V. For the foregoing reasons, the judgment of the district court is
AFFIRMED

. USCA4 Appeal: 20-9 Doc: 67 Filed: 04/20/2022 Pg: 14 of 14