Ranito Allen v. United States ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0293n.06
No. 21-5782
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jun 23, 2023
DEBORAH S. HUNT, Clerk
RANITO ALLEN, )
)
Petitioner-Appellant,
) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v.
) COURT FOR THE WESTERN
UNITED STATES OF AMERICA, ) DISTRICT OF TENNESSEE
)
Respondent-Appellee. )
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
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-cr-
20141-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).
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No. 21-5782, Allen v. United States
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 attempted-
murder 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 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. 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.
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No. 21-5782, Allen v. United States
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,
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No. 21-5782, Allen v. United States
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
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No. 21-5782, Allen v. United States
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.
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