NOT RECOMMENDED FOR PUBLICATION

File Name: 23a0293n.06

No. 21-5782

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RANITO ALLEN,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE WESTERN 

DISTRICT OF TENNESSEE

OPINION

Before: MOORE, ROGERS, and GRIFFIN, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge. Ranito Allen was convicted on five counts 

of aiding and abetting attempted murder in aid of racketeering and one count of aiding and abetting 

the use and carrying of a firearm during and in relation to a crime of violence. One of the attempted 

murder convictions served as the predicate offense for Allen’s firearm conviction. Allen moved 

for relief pursuant to 28 U.S.C. § 2255, contending that (1) his firearm conviction is invalid 

because the predicate attempted-murder conviction does not constitute a crime of violence; and 

(2) his trial counsel was ineffective for failing to challenge his firearm conviction on the ground 

that the predicate offense was not a crime of violence. The district court denied Allen’s motion, 

finding that the predicate offense did constitute a crime of violence. Allen now timely appeals. 

For the reasons that follow, we AFFIRM the district court’s judgment.
No. 21-5782, Allen v. United States

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I. BACKGROUND

In October 2015, Allen and several others were arrested in connection with a June 2014 

gang-related shooting that wounded five victims. No. 2:15-cr-20141-SHM, R. 396 (Presentence 

Investigation Report (“PSR”) at 2, 11–12) (Page ID #1158, 1167–68). Allen was indicted on five 

counts of aiding and abetting attempted murder in aid of racketeering, in violation of 18 U.S.C. 

§§ 2, 1959(a)(5), five counts of aiding and abetting the use and carrying of a firearm during and in 

relation to a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(iii), and one count of 

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). No. 2:15-cr-20141-SHM, 

R. 241 (2d Superseding Indictment at 13–22) (Page ID #514–23).

Allen subsequently pleaded guilty on five counts of aiding and abetting attempted murder 

in aid of racketeering and one count of aiding and abetting the use and carrying of a firearm during 

and in relation to a crime of violence. No. 2:15-cr-20141-SHM, R. 359 (Order on Change of Plea) 

(Page ID #907). As part of his plea agreement, Allen admitted that he participated in an act of 

retaliation against a rival gang that resulted in the shooting of five victims, all of whom survived. 

No. 2:15-cr-20141-SHM, R. 355 (Factual Basis at 6–7) (Page ID #901–02). Four of the five 

victims were minors, and some of them “sustained serious bodily injuries.” Id. at 7 (Page ID 

#902). The government then moved to dismiss the remaining counts against Allen. No. 2:15-cr20141-SHM, R. 412 (J. at 1) (Page ID #1288). The district court sentenced Allen to 120 months’ 

incarceration on three of the attempted murder counts, 52 months’ incarceration on the remaining 

two attempted murder counts, and 120 months’ incarceration on the firearm count, to be served 

consecutively, for a total term of 292 months’ incarceration. Id. at 3 (Page ID #1290).
No. 21-5782, Allen v. United States

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Allen did not appeal his conviction or sentence. No. 2:18-cv-02371-SHM, R. 1 (§ 2255 

Motion at 3) (Page ID #2). In June 2018, Allen filed a motion pursuant to 28 U.S.C. § 2255. Id.

at 2 (Page ID #1). His motion raised two grounds for relief: (1) his conviction and sentence for 

aiding and abetting the use and carrying of a firearm during and in relation to a crime of violence, 

in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(iii), are invalid because the predicate attemptedmurder conviction does not constitute a crime of violence; and (2) his trial counsel was ineffective 

for failing to object to his conviction and sentence on that ground. Id. at 5–6 (Page ID #4–5).

The district court denied Allen’s motion, finding that the predicate offense was a crime of 

violence. No. 2:18-cv-02371-SHM, R. 12 (Order Den. Mot. at 13) (Page ID #106). We granted a 

certificate of appealability on both grounds. No. 2:18-cv-02371-SHM, R. 18 (Order at 4) (Page 

ID #153).

II. ANALYSIS

Allen argues that (1) his firearm conviction is invalid because the predicate attemptedmurder conviction does not constitute a crime of violence; and (2) his trial counsel was ineffective 

for failing to challenge his firearm conviction on the ground that the predicate offense was not a 

crime of violence. For both of Allen’s claims, the dispositive question is whether his aiding and 

abetting attempted-murder conviction constitutes a crime of violence such that it can serve as a 

predicate offense for his firearm conviction pursuant to § 924(c). Because we have issued opinions 

that control this question since we granted the certificate of appealability in this case, we hold that 

Allen’s predicate conviction does constitute a crime of violence and that his firearm conviction is 

therefore sound.
No. 21-5782, Allen v. United States

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To secure a conviction pursuant to § 924(c), the government must show that the firearm 

was used or carried “during and in relation to any crime of violence.” 18 U.S.C. § 924(c)(1)(A). 

Following the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319, 2336 (2019), 

holding that the residual-clause definition of a “crime of violence” is unconstitutionally vague, we 

define a crime of violence by the elements clause of § 924(c), which provides that a crime of 

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

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

The predicate offense here was one of the counts of aiding and abetting attempted murder 

in aid of racketeering, which constitutes a violation of 18 U.S.C. § 1959(a)(5), also known as the 

Violent Crimes in Aid of Racketeering (“VICAR”) statute. A VICAR conviction in turn requires 

evidence of “murder[], kidnap[ping], maim[ing], assault[] with a dangerous weapon, commit[ting]

assault resulting in serious bodily injury upon, or threaten[ing] to commit a crime of violence 

against any individual in violation of the laws of any State or the United States.” 18 U.S.C. 

§ 1959(a). Here, the predicate offense for Allen’s VICAR conviction was Tennessee attempted 

second-degree murder. No. 2:15-cr-20141-SHM, R. 241 (2d Superseding Indictment at 14) (Page 

ID #515). At the time of Allen’s offense, Tennessee defined second-degree murder as:

(1) A knowing killing of another; or

(2) A killing of another that results from the unlawful distribution of any Schedule 

I or Schedule II drug, when the drug is the proximate cause of the death of the user.

TENN. CODE ANN. § 39-13-210(a) (2008).

We recently held that the version of the Tennessee second-degree murder statute in effect 

at the time of Allen’s offense is divisible and that the modified categorical approach applies to the 

determination of whether it constitutes a crime of violence. United States v. Martin, No. 22-5278, 
No. 21-5782, Allen v. United States

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2023 WL 2755656, at *5 (6th Cir. Apr. 3, 2023), pet. for cert. filed, 2023 WL 2755656 (U.S. June 

12, 2023) (No. 22-7760). We further held that the knowing-killing subsection of the Tennessee 

second-degree murder statute “has as an element the attempted use of physical force against the 

person of another” and that an individual convicted of attempted murder in violation of the 

knowing-killing subsection of the statute thus has committed a crime of violence. Id. at *6–7. 

Therefore, if Allen’s VICAR conviction was predicated on a violation of the knowing-killing 

subsection, § 39-13-210(a)(1), it constituted a crime of violence.

“Under the modified categorical approach,” we “may look at a ‘limited class of documents 

. . . to determine which alternative [element] formed the basis of the defendant’s prior 

conviction[.]’” Braden v. United States, 817 F.3d 926, 932 (6th Cir. 2016) (quoting United States 

v. Denson, 728 F.3d 603, 608 (6th Cir. 2013)) (alterations in original). This includes charging 

documents. Shepard v. United States, 544 U.S. 13, 16 (2005). The indictment charged that Allen 

“did intentionally and knowingly attempt to murder D.S. in violation of Tennessee Code 

Annotated, Section 39-13-210.” No. 2:15-cr-20141-SHM, R. 241 (2d Superseding Indictment at 

14) (Page ID #515). Although the indictment does not specify which subsection Allen was charged 

under, the charging language clearly tracks the language of § 39-13-210(a)(1), to the exclusion of 

any language relevant to obtaining a conviction pursuant to § 39-13-210(a)(2).

As in Martin, we can therefore determine that the predicate offense for Allen’s VICAR 

conviction was a violation of the knowing-killing variant of the Tennessee second-degree murder 

statute, and that it constituted a crime of violence. See Martin, 2023 WL 2755656, at *5. And 

because the predicate offense for Allen’s VICAR conviction constitutes a crime of violence, the 

VICAR conviction itself must also be a conviction for a crime of violence. See Battle v. United 
No. 21-5782, Allen v. United States

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States, No. 21-5457, 2023 WL 2487342, at *2 (6th Cir. Mar. 14, 2023) (denying relief pursuant to 

§ 2255 and holding that a VICAR murder conviction predicated on the Tennessee first-degree 

murder statute constituted a crime of violence). As we explained in Battle, “[w]e are bound by

[United States v.] Harrison, [54 F.4th 884 (6th Cir. 2022),] which held that murder always involves 

the use of physical force, even when committed by omission.” Id. at *3. We cannot see any reason 

to distinguish this case from our prior holdings. Because the predicate offense for Allen’s firearm 

conviction—his VICAR attempted-murder conviction—constitutes a crime of violence, we hold 

that his firearm conviction is valid and that his trial counsel was not ineffective for failing to 

challenge his firearm conviction on that ground.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.