USA V. DAVID LINEHAN

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50206
Plaintiff-Appellee, D.C. Nos.
2:20-cr-00417-
v. ODW-1
2:20-cr-00417-
DAVID LINEHAN, ODW
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted May 20, 2022
Pasadena, California
Filed December 22, 2022
Before: Kenneth K. Lee and Daniel A. Bress, Circuit
Judges, and Sidney A. Fitzwater, * District Judge.
*
The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
2 UNITED STATES V. LINEHAN
SUMMARY **
Criminal Law
The panel affirmed David Linehan’s conviction for
soliciting the transportation of an explosive device in
commerce with the knowledge or intent that it would be used
to kill, injure, or intimidate a person or damage property, in
violation of 18 U.S.C. §§ 373(a) and 844(d); reversed his
conviction for soliciting the use of facilities of commerce
with the intent that a murder be committed, in violation of
18 U.S.C. §§ 373(a) and 1958(a); and remanded for
resentencing, in a case in which Linehan, while in prison on
federal charges, solicited others to deliver a bomb to the
home of a witness who had testified against him at his
criminal trial.
Section 373(a) punishes the solicitation of federal crimes
that have “as an element the use, attempted use, or threatened
use of physical force against property or against the person
of another.” The panel addressed whether, under the
categorical approach, transportation of an explosive (§
844(d)) and using a facility of interstate commerce with
intent that a murder be committed (§ 1958(a)) are crimes of
violence under § 373(a).
The panel held that a violation of § 844(d) is a categorical
match to § 373(a). Rejecting an argument in which Linehan
relied on United States v. Taylor, 142 S. Ct. 2015 (2022),
which held that attempted Hobbs Act robbery is not a crime
of violence under 18 U.S.C. § 924(c)(3)(A), the panel noted
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. LINEHAN 3
that Linehan was not convicted of soliciting the attempted
transportation of an explosive; he was convicted of soliciting
the completed offense. The panel concluded that a violation
of § 844(d) requires the defendant to have undertaken a
substantial step toward the use of violent force, which means
that a violation of § 844(d) categorically requires the
attempted use of physical force within the meaning of §
373(a). The panel rejected Linehan’s argument that if the
“attempted use” of force is the source of § 373(a) liability,
the court must import a specific intent mens rea that is
associated with attempt offenses, so that a predicate offense
like § 844(d) that requires merely “knowing” misconduct is
insufficient. The panel wrote that even if “attempted uses”
of force did require a higher mens rea, § 844(d) contains a
mens rea requirement that enables it to categorically qualify
as an attempted use of force.
The panel held that, as the government now concedes, a
violation of § 1958(a) does not qualify as a crime of violence
under § 373(a) because, as the Solicitor General conceded in
Grzegorczyk v. United States, 142 S. Ct. 2580 (2022),
§ 1958(a) does not require that a defendant actually enter
into a murder-for-hire agreement, that he carry out or
otherwise attempt to accomplish his criminal intent, or that
the contemplated murder be attempted or accomplished by
another person.
4 UNITED STATES V. LINEHAN
COUNSEL
Elizabeth Richardson-Royer (argued), San Francisco,
California, for Defendant-Appellant.
Mark R. Rehe (argued), Carling Donovan, Fred Sheppard,
and Daniel E. Zipp, Assistant United States Attorneys;
Merrick B. Garland, United States Attorney General, Office
of the United States Attorney, San Diego, California, for
Plaintiff-Appellee.
OPINION
BRESS, Circuit Judge:
While in prison on federal charges, David Linehan
solicited others to deliver a bomb to the home of a witness
who had testified against him at his criminal trial. The
federal solicitation statute, 18 U.S.C. § 373, punishes the
solicitation of federal crimes that have “as an element the
use, attempted use, or threatened use of physical force
against property or against the person of another,” which is
to say violent crimes. In this case, we address whether,
under the categorical approach, two predicate crimes—
transportation of an explosive, 18 U.S.C. § 844(d), and using
a facility of interstate commerce with intent that a murder be
committed, 18 U.S.C. § 1958(a)—are crimes of violence
under § 373(a).
We hold that a violation of § 844(d) is a categorical
match to § 373(a), but that a violation of § 1958(a) is not, a
point the government now concedes. We affirm in part,
reverse in part, and remand for resentencing.
UNITED STATES V. LINEHAN 5
I
In 1989, David Linehan was involved in a serious car
accident in Florida. United States v. Linehan, 835 F. App’x
914, 915–16 (9th Cir. 2020). David Sims, a Florida State
Trooper, arrived at the scene and cited Linehan for careless
driving. Linehan disputed the citation, and a state court held
a hearing at which Sims testified. The state court found that
Linehan was at fault for the accident and fined him less than
$200.
Tragically, the other driver in the accident later
committed suicide. Linehan, 835 F. App’x at 916. Linehan
came to believe that Sims unfairly blamed him for the other
driver’s death. Id. Linehan’s automobile insurance policy
was also used to compensate the other driver’s estate. In
connection with those proceedings, Linehan was involved in
“contentious litigation” over his own culpability for the
accident and the other driver’s death. Somewhat
improbably, Linehan developed an obsession with Sims over
this incident and spent years harassing and threatening him.
In 2001, Linehan moved to China. He also lived for
periods in Thailand, Hong Kong, and Cambodia. While in
Asia, Linehan continued his “30-year history of threatening
harm to government officials who did not respond to his
grievances,” which culminated in Linehan threatening to
firebomb the U.S. Embassy in Phnom Penh. Linehan, 835
F. App’x at 916. This led to his expulsion from Cambodia
and his arrest upon returning to the United States. Id. at 915.
Sims testified against Linehan at his criminal trial for the
Cambodia threats, after which a jury convicted Linehan of
transmitting a threat in foreign commerce. Id. Linehan was
sentenced to 33 months’ imprisonment. Id. at 916. We
6 UNITED STATES V. LINEHAN
affirmed Linehan’s conviction on direct appeal. Id. at 916–
17.
While in federal prison, Linehan contacted a fellow
inmate whom he believed was soon to be released and asked
him to locate Sims’s residential mailing address for the
purpose of mailing a bomb to Sims’s home. In a series of
handwritten messages that spanned nearly a month, Linehan
provided instructions to his fellow inmate on how to find
Sims and construct an explosive device. Linehan promised
to pay the inmate $200 up front, with a further $25,000
payment upon confirmation that the bomb had been sent to
Sims. The inmate turned on Linehan, notified the FBI, and
agreed to cooperate.
An undercover agent posing as a willing bomber
contacted Linehan, and Linehan arranged for the agent to be
paid $200 in cash. Linehan and the undercover agent
engaged in several recorded conversations during which
Linehan confirmed that he wanted the agent to send a bomb
to Sims’s house, and that he would pay $25,000 to see it
done. Linehan wanted the bomb to “blow Sims’ f—ing head
up” and “rip his lungs out.”
For this, Linehan was charged with a new round of
federal offenses: retaliating against a trial witness (Sims), in
violation of 18 U.S.C. § 1513(a) (Count 1); soliciting the
transportation of an explosive device in commerce with the
knowledge or intent that it would be used to kill, injure, or
intimidate a person or damage property, in violation of 18
U.S.C. §§ 373(a) and 844(d) (Count 2); and soliciting the use
of facilities of commerce with the intent that a murder be
committed, in violation of 18 U.S.C. §§ 373(a) and 1958(a)
(Count 3).
UNITED STATES V. LINEHAN 7
Before trial, Linehan moved to dismiss Counts 2 and 3
for failure to state an offense. He argued that the underlying
offenses—§ 844(d) and § 1958(a)—did not have “as an
element the use, attempted use, or threatened use of physical
force,” as § 373(a) requires. The district court denied
Linehan’s motion. Linehan unsuccessfully renewed his
arguments concerning Counts 2 and 3 at the conclusion of
the trial.
The jury acquitted Linehan on Count 1, but convicted
him on Counts 2 and 3. Before his sentencing, Linehan
renewed his arguments for acquittal for a third time, but the
district court again denied his motion. The district court
sentenced Linehan to consecutive 60-month sentences on
Counts 2 and 3, for a total term of 120 months’
imprisonment, to be followed by three years of supervised
release. We review de novo the district court’s denials of
pretrial motions to dismiss and motions for acquittal. United
States v. Riggins, 40 F.3d 1055, 1057 (9th Cir. 1994).
II
Under the federal solicitation provision, which is entitled
“Solicitation to commit a crime of violence,”
Whoever, with intent that another person
engage in conduct constituting a felony that
has as an element the use, attempted use, or
threatened use of physical force against
property or against the person of another in
violation of the laws of the United States, and
under circumstances strongly corroborative
of that intent, solicits, commands, induces, or
otherwise endeavors to persuade such other
person to engage in such conduct, shall be
imprisoned . . . .
8 UNITED STATES V. LINEHAN
18 U.S.C. § 373(a). To determine whether a defendant
solicited a qualifying federal offense, we apply the
categorical approach. See United States v. Devorkin, 159
F.3d 465, 469 (9th Cir. 1998) (“[W]e hold that § 373 requires
a categorical approach, rather than a fact-based, case-by-
case analysis of the actual result of the solicitation.”); see
also, e.g., United States v. Doggart, 947 F.3d 879, 887–88
(6th Cir. 2020) (applying categorical approach to § 373(a));
United States v. Gillis, 938 F.3d 1181, 1201 (11th Cir. 2019)
(per curiam) (same).
Under the categorical approach, we consider not the
specific facts of a given conviction but whether the elements
of the predicate offense meet the federal definition of a
“crime of violence.” Moncrieffe v. Holder, 569 U.S. 184,
190 (2013). “If any—even the least culpable—of the acts
criminalized do not entail that kind of force, the statute of
conviction does not categorically match the federal standard,
and so cannot serve as . . . [a] predicate.” Borden v. United
States, 141 S. Ct. 1817, 1822 (2021) (plurality opinion).
The language used in § 373(a) is substantially similar to
other “crime of violence” or “violent felony” provisions
found elsewhere in the federal criminal code. See 18 U.S.C.
§§ 16(a), 924(c)(3)(A), 924(e)(2)(B)(i). Although we have
not before interpreted § 373(a)’s “elements clause” (also
known as a “force clause”) to any great extent, the parties
agree that the same basic framework used for other elements
clauses applies to the elements clause in § 373(a). Thus, the
parties agree that the phrase “physical force” here, as
elsewhere, means “violent force—that is, force capable of
causing physical pain or injury to another person.” Johnson
v. United States, 559 U.S. 133, 140 (2010). And the phrase
“against property or against the person of another” requires
that the crime solicited be one that requires purposeful or
UNITED STATES V. LINEHAN 9
knowing conduct, see Borden, 141 S. Ct. at 1826–28, or
conduct evincing extreme recklessness, see United States v.
Begay, 33 F.4th 1081, 1093–94 (9th Cir. 2022) (en banc).
Both the solicited offenses here have the necessary mens
rea levels (knowledge or higher), for purposes of Borden.
See 18 U.S.C. §§ 844(d), 1958(a). The key question is thus
whether, under the categorical approach, they have as an
element the use, attempted use, or threatened use of physical
force.
III
We begin with the transportation of an explosive, in
violation of 18 U.S.C. § 844(d). The relevant portion of
§ 844(d) provides that:
Whoever transports or receives, or attempts
to transport or receive, in interstate or foreign
commerce any explosive with the knowledge
or intent that it will be used to kill, injure, or
intimidate any individual or unlawfully to
damage or destroy any building, vehicle, or
other real or personal property, shall be
imprisoned for not more than ten years, or
fined under this title, or both . . . .
Id. To convict a defendant of a completed offense under
§ 844(d), the government must prove that he “(1) transported
or received in interstate commerce (2) any explosive (3) with
the knowledge or intent that it would be used to kill, injure,
or intimidate any individual” or damage any property.
United States v. Michaels, 796 F.2d 1112, 1118 (9th Cir.
1986).
10 UNITED STATES V. LINEHAN
A
Linehan focuses some of his argument on that portion of
§ 844(d) that criminalizes the attempted transportation of an
explosive. Relying on the Supreme Court’s recent decision
in United States v. Taylor, 142 S. Ct. 2015 (2022), which
held that attempted Hobbs Act robbery is not a crime of
violence under 18 U.S.C. § 924(c)(3)(A), Linehan argues
that a person could be convicted of attempting to transport
an explosive based on acts preparatory to such transportation
that may not themselves involve the use, attempted use, or
threatened use of physical force.
We need not explore that issue for the basic reason that
Linehan was not convicted of soliciting the attempted
transportation of an explosive; he was convicted of soliciting
the completed offense. Section 844(d) punishes anyone who
“transports or receives, or attempts to transport or receive, in
interstate or foreign commerce any explosive with the
knowledge or intent that it will be used to kill, injure, or
intimidate any individual or unlawfully to damage”
property. Id. (emphasis added). When a criminal statute is
“divisible,” meaning that it “comprises multiple, alternative
versions of the crime,” we apply what is known as the
“modified categorical approach.” Descamps v. United
States, 570 U.S. 254, 261–62 (2013); see also, e.g., United
States v. Buck, 23 F.4th 919, 924 (9th Cir. 2022). In that
instance, we then consult permitted sources to determine
whether the defendant was convicted of that divisible portion
of the predicate offense that qualifies as a categorical match
to the elements clause. See, e.g., Johnson, 559 U.S. at 144(explaining that courts may consider “the trial record—
including charging documents, plea agreements, transcripts
of plea colloquies, findings of fact and conclusions of law
from a bench trial, and jury instructions and verdict forms”).
UNITED STATES V. LINEHAN 11
“A statute is divisible when it ‘list[s] elements in the
alternative and thereby define[s] multiple crimes.’” Buck,
23 F.4th at 924 (alterations in original) (quoting Mathis v.
United States, 579 U.S. 500, 505 (2016)). But if a statute
merely lists “alternative means of committing the same
crime,” it is not divisible. Almanza-Arenas v. Lynch, 815
F.3d 469, 478 (9th Cir. 2016) (en banc); see also Mathis, 579
U.S. at 505. In this case, we have little difficulty concluding
that, at the very least, § 844(d) is divisible into completed
and attempted offenses.
Taylor guides our analysis on this point. There, the
Supreme Court interpreted the Hobbs Act robbery provision,
which, like § 844(d), imposes criminal penalties for both the
completed and attempted offense. 18 U.S.C. § 1951(a)
(“Whoever . . . affects commerce . . . by robbery or extortion
or attempts or conspires so to do . . . shall be fined under this
title or imprisoned not more than twenty years, or both.”
(emphasis added)). In holding that the offense of attempted
Hobbs Act robbery was not a crime of violence, the Court
did not suggest that completed Hobbs Act robbery must be
treated identically, even though both the attempted and
completed offenses were included in the same provision.
See Taylor, 142 S. Ct. at 2020 (“Whatever one might say
about completed Hobbs Act robbery, attempted Hobbs Act
robbery does not satisfy the elements clause.”). And it is
well established both pre- and post-Taylor that completed
Hobbs Act robbery is a crime of violence under the elements
clause. See Jones v. United States, 36 F.4th 974, 985 (9th
Cir. 2022) (“Hobbs Act robbery is a crime of violence under
the elements clause.”); United States v. Franklin, 18 F.4th
1105, 1113 (9th Cir. 2021); United States v. Baker, 49 F.4th
1348, 1360 (10th Cir. 2022).
12 UNITED STATES V. LINEHAN
Similarly here, in the context of § 844(d) an attempt to
commit the offense is distinct from the completed offense.
The indictment and jury instructions thus make clear that
Linehan was charged with and convicted of soliciting the
completed transportation of an explosive. Our task now is
to compare the elements of a completed offense under
§ 844(d) to the elements clause in § 373(a), to see whether
there is a categorical match.
B
We therefore turn to the language of § 373(a), which
punishes the solicitation of a federal offense that “has as an
element the use, attempted use, or threatened use of physical
force against property or against the person of another.” 18
U.S.C. § 373(a) (emphasis added). Like other elements
clauses, this statute is written in the disjunctive, meaning that
a predicate offense can qualify as a categorical match so long
as it requires one of the specified uses of force: actual,
attempted, or threatened. See, e.g., United States v. Ladwig,
432 F.3d 1001, 1005 (9th Cir. 2005) (“By using the
disjunctive ‘or,’ Congress explicitly provided that the
[elements clause] applies to the ‘threatened use of physical
force against the person of another,’ even absent actual or
attempted physical force against the person of another.”
(citation omitted)).
The government now effectively concedes that under the
Supreme Court’s recent decision in Taylor, § 844(d) does
not categorically involve the “threatened use” of physical
force. Taylor explained that “in the criminal law the word
‘threat’ and its cognates usually denote a communicated
intent to inflict physical or other harm.” 142 S. Ct. at 2022
(quotations omitted). The government now acknowledges
that under Taylor, transporting or receiving an explosive
UNITED STATES V. LINEHAN 13
under § 844(d) does not categorically require an outwardly
communicated threat of harm. 1
Assuming the threatened use of physical force is out, we
are left with either the actual or attempted use of physical
force. We need not decide whether a violation of the
completed offense in § 844(d) requires the actual use of
physical force because we conclude that at the very least, it
requires the attempted use of such force.
1
The “attempted use” component of elements clauses has
received little independent consideration in the case law. In
part, that may be because pre-Taylor, we treated the
attempted version of a crime as a crime of violence if the
completed offense was so treated. See United States v.
Dominguez, 954 F.3d 1251, 1262 (9th Cir. 2020). But
Taylor confirms that analysis is not appropriate. See Taylor,
142 S. Ct. at 2021 (rejecting the government’s argument that
“because completed Hobbs Act robbery qualifies as a crime
of violence, it follows that attempted Hobbs Act robbery
1
We note, however, that Taylor considered the elements clause in 18
U.S.C. § 924(c)(3)(A). Taylor more narrowly interpreted the phrase
“threatened use” of force to require a communicative act in part to avoid
overlap with the now-invalid residual clause in § 924(c)(3)(B). See 142
S. Ct. at 2023–24. But § 373(a) has no accompanying residual clause,
which raises the question whether the same narrowing of “threatened
use” should control. If “threatened use” of force in § 373(a) is permitted
a broader construction than in § 924(c)(3)(A), it would seem clear that a
violation of § 844(d) would categorically qualify as the threatened use
of physical force, given the imminent threat to persons and property
when an explosive is transported with the intent to kill, injure, or
intimidate, or damage property. We need not resolve this issue in light
of our conclusion that a violation of § 844(d) categorically requires the
“attempted use” of physical force.
14 UNITED STATES V. LINEHAN
does too”). Taylor thus invites a deeper engagement with
both attempt offenses and the statutory phrase “attempted
use” in an elements clause. The lack of case law on
“attempted use” may also be due to the fact that many
predicate offenses involve the actual use of physical force,
and so by definition the attempted use. See, e.g., Buck, 23
F.4th at 928 (holding that putting a mail carrier’s life in
jeopardy by the use of a dangerous weapon under 18 U.S.C.
§ 2114 “necessarily requires the use, attempted use, or
threatened use of violent physical force”).
But the “attempted use” of force comes into play here
because § 844(d) is a somewhat different breed of crime. It
treats as a completed offense the transportation or receipt in
commerce of “any explosive with the knowledge or intent
that it will be used to kill, injure, or intimidate any individual
or unlawfully to damage or destroy any” property. 18 U.S.C.
§ 844(d). The explosive need not be detonated or cause
harm; what is criminalized is the conveyance of the
explosive in commerce with the knowledge or intent that it
will be used for harmful purposes. See Michaels, 796 F.2d
at 1118; see also United States v. Strickland, 261 F.3d 1271,
1273 (11th Cir. 2001) (affirming § 844(d) conviction of
defendant accused of “manufacturing, transporting, and
affixing a pipe bomb to the vehicle of his ex-wife’s new
husband”).
The parties agree that in construing the “attempted use”
of physical force under § 373(a), we should employ the
traditional meaning of “attempt” as requiring an individual
to engage in conduct that reflects a “substantial step” toward
the wrongful end. See, e.g., Taylor, 142 S. Ct. at 2020. In
the context of § 373(a)’s elements clause, this means that the
predicate offense must categorically punish conduct that
constitutes a substantial step toward the use of physical
UNITED STATES V. LINEHAN 15
force, defined as “violent force,” meaning “force capable of
causing physical pain or injury to another person.” Johnson,
559 U.S. at 140. In this case, we conclude that someone who
solicits a violation of § 844(d) categorically solicits the
attempted use of physical force: transporting or receiving an
explosive with the knowledge or intent that it will be used to
kill, injure, or intimidate any person, or damage property, is
categorically a substantial step toward the use of violent
force.
To constitute a substantial step, conduct “must go
beyond mere preparation and must be strongly corroborative
of the firmness of a defendant’s criminal intent.” United
States v. Smith, 962 F.2d 923, 930 (9th Cir. 1992)
(quotations omitted). That is, “the defendant’s conduct must
(1) advance the criminal purpose charged, and (2) provide
some verification of the existence of that purpose.” United
States v. Goetzke, 494 F.3d 1231, 1235–36 (9th Cir. 2007)
(per curiam) (quoting Walters v. Maass, 45 F.3d 1355,
1358–59 (9th Cir. 1995)).
Transporting or receiving an explosive under § 844(d) is
better characterized as a substantial step toward the use of
force as opposed to a mere preparation for the use of force.
See United States v. Soto-Barraza, 947 F.3d 1111, 1120 (9th
Cir. 2020) (noting that courts are more likely to find that
defendants have attempted an offense when they have
“equipped themselves with the items needed to commit the
offense”). The statutory definition of “explosive” is critical
to our analysis. For purposes of § 844(d), the term
“explosive” means any device or chemical “in such
proportions, quantities, or packing that ignition by fire, by
friction, by concussion, by percussion, or by detonation of
the compound, mixture, or device or any part thereof may
cause an explosion.” 18 U.S.C. § 844(j).
16 UNITED STATES V. LINEHAN
As the last sentence of § 844(j) confirms, the device must
be readily capable of explosion through a basic act, such as
ignition by fire. An explosion is inherently violent, capable
of causing death or serious injury to persons and serious
damage to property. By its nature, it deploys violent force.
Transporting or receiving an explosive brings it closer to its
contemplated or potential detonation. Conveying such a
device is a highly dangerous undertaking that requires
deliberate and considered action. We do not think it is
necessary to imagine every possible type of explosive device
and the myriad ways in which they could be triggered to
recognize that a prepared explosive is capable of serious
physical harm.
Section 844(d) further requires that the person who
transports or receives the explosive must do so in service of
a violent objective: “with the knowledge or intent that it will
be used to kill, injure, or intimidate” any person or damage
property. Killing, injuring, and damaging property
inherently involves the use of physical force. And given the
nature of an explosive device, acting with knowledge or
intent to intimidate through transport or receipt of an
explosive involves the attempted use of force as well. To
“intimidate” is not merely to scare. See United States v.
Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017) (per curiam)
(explaining that intimidation involves the use of force “in
such a way that would put an ordinary, reasonable person in
fear of bodily harm” (quoting United States v. Selfa, 918
F.2d 749, 751 (9th Cir. 1990))). As then-Judge Breyer
explained, § 844(d) intimidation requires some degree of
coercive conduct because “the statute’s basic purpose
suggests that it was not designed to punish pure ‘frightening’
without any element of intent to injure, or to affect future
conduct, or to cause some other sort of relatively serious
UNITED STATES V. LINEHAN 17
harm.” United States v. Norton, 808 F.2d 908, 909 (1st Cir.
1987) (Breyer, J.); see also id. (“Nothing in the statute’s
history suggests an intent to make unlawful the
transportation of a firecracker across a state line solely for
the purpose of scaring a relative, friend, or neighbor.”).
To violate § 844(d), one must thus at a minimum intend
to intimidate by deploying a readied explosive capable of
causing death, injury, or damage to property. This level of
intimidation connotes violent force—or, in Justice Breyer’s
words, force “likely to cause any significant public harm.”
Id. at 910. As the Supreme Court has explained, “force
capable of causing physical pain or injury” under the
elements clause “does not require any particular degree of
likelihood or probability that the force used will cause
physical pain or injury; only potentiality.” Stokeling v.
United States, 139 S. Ct. 544, 554 (2019). Taking all these
points together, the person who violates § 844(d)
categorically takes a substantial step toward using “force
capable of causing physical pain or injury to another
person.” Johnson, 559 U.S. at 140.
This is consistent with Taylor, which notes that for a
predicate offense to qualify as the “‘use’ or ‘attempted use’
of ‘physical force against the person or property of
another,’” the government must “prove that the defendant
took specific actions against specific persons or their
property.” 142 S. Ct. at 2023. Here, § 844(d) requires the
government categorically to prove that a defendant took the
specific action of transporting or receiving a readied
explosive device with the intent or knowledge that it would
be used to kill, injure, or intimidate a person or damage
property. This substantial step toward a completed crime of
violence is concrete and defined and does not merely
18 UNITED STATES V. LINEHAN
“sweep[] in conduct that poses an abstract risk to community
peace and order.” Id.
The example employed in Taylor further illustrates how
this case is distinguishable from attempted Hobbs Act
robbery. Taylor described a hypothetical “Adam” who, with
the goal of robbing a store, “buys a ski mask, plots his escape
route, and recruits his brother to drive the getaway car.” 142
S. Ct. at 2021. Adam also drafts a threatening note that is a
bluff, and is arrested when he “crosses the threshold into the
store.” Id. Adam has attempted to commit Hobbs Act
robbery but has not attempted to use physical force because
his note was a bluff and he never delivered it. Id.
A completed violation of § 844(d) does not involve
conduct analogous to the “Adam” hypothetical, such as
making a shopping list of bomb materials. Instead, it
punishes someone who actually transports or receives a
readied explosive knowing that it will be used to kill, injure,
or intimidate, or damage property. Adam could have been
bluffing, and the note itself was not capable of violent force.
See id. Here, by contrast, § 844(d)’s “will be used”
requirement creates a more imminent connection to a violent
aim. And the explosive, unlike Adam’s handwritten note, is
readily capable of violent force. Thus, we conclude that a
violation of § 844(d) requires the defendant to have
undertaken a substantial step toward the use of violent force.
This means that a violation of § 844(d) categorically requires
the attempted use of physical force within the meaning of
§ 373(a).
Our holding is consistent with our most analogous
precedent, United States v. Collins, 109 F.3d 1413 (9th Cir.
1997). There, we considered whether mailing an item with
intent to kill or injure another, 18 U.S.C. § 1716, qualified as
UNITED STATES V. LINEHAN 19
a crime of violence under 18 U.S.C. § 924(c)(1). Id. at
1418–19. That predicate offense is like § 844(d) in that it
criminalizes transmitting a dangerous item with an unlawful
intent but does not require that the contemplated harm
transpire. We had little difficulty in Collins concluding that
a violation of § 1716 had as an element “the use or attempted
use of physical force.” Id. at 1419 (emphasis added).
In holding that § 844(d) constitutes a crime of violence,
we also align ourselves with other courts which have treated
§ 844(d) accordingly, albeit without analysis. See Worman
v. Entzel, 953 F.3d 1004, 1006 (7th Cir. 2020) (relying on
our decision in Collins and noting that the “mailing of a pipe
bomb [in violation of § 844(d)] constituted the predicate
crime of violence for purposes of the § 924(c) charge”);
United States v. Barefoot, 754 F.3d 226, 247 (4th Cir. 2014)
(noting that “receiving an explosive with the intent that it be
used to kill, injure, or intimidate, or to damage or destroy
buildings, manifestly would have been a crime of violence
according to the parties’ mutual understanding”); Strickland,
261 F.3d at 1274 (treating a violation of § 844(d) as a
predicate offense under § 924(c)).
Linehan, meanwhile, has not identified any case holding
that § 844(d) is not a crime of violence. And to the extent
one could devise obscure hypotheticals suggesting that it
might be theoretically possible to carry out the completed
offense in § 844(d) without the attempted use of force, that
“legal imagination” cannot carry the day. Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007) (categorical
approach requires “realistic probability” of prosecution);
United States v. Rodriguez-Gamboa, 972 F.3d 1148, 1150
(9th Cir. 2020) (noting that “the categorical approach should
not be applied in a legal vacuum”).
20 UNITED STATES V. LINEHAN
2
Linehan nonetheless argues that a violation of § 844(d)
cannot categorically qualify as an offense that requires the
attempted use of force because attempt traditionally requires
the mens rea of specific intent, see, e.g., Braxton v. United
States, 500 U.S. 344, 351 n.* (1991), and a violation of §
844(d) only requires “knowledge.” Here we think Linehan
reads too much into the “attempted use” of force clause, but
his argument fails even on its own terms.
Section 373(a), to return to the key provision, punishes
one who, “under circumstances strongly corroborative of
that intent,” intentionally solicits another to “engage in
conduct constituting a felony that has as an element the use,
attempted use, or threatened use of physical force against
property or against the person of another.” 18 U.S.C. §
373(a). This statutory provision not only imposes its own
mens rea requirement, but (as we noted above) requires that
the underlying predicate offense itself have a certain
elevated mens rea. In Borden, the Supreme Court held that
the phrase “against the person of another,” “when modifying
the ‘use of force,’ demands that the perpetrator direct his
action at, or target, another individual.” 141 S. Ct. at 1825
(emphasis added). This means that predicate offenses with
a mens rea of purpose or knowledge are sufficient, but
predicate offenses that merely require reckless conduct are
not. Id. at 1826. In Begay, our en banc court addressed a
question left open in Borden and held that a mens rea of
extreme recklessness also qualifies as a crime of violence
under the elements clause. 33 F.4th at 1093–94.
Section 844(d) satisfies Borden because it requires the
defendant to have transported or received an explosive with
“the knowledge or intent that it will be used to kill, injure, or
UNITED STATES V. LINEHAN 21
intimidate any individual or unlawfully to damage or
destroy.” 18 U.S.C. § 844(d) (emphasis added). But
Linehan maintains that if the “attempted use” of force in the
elements clause is the source of § 373(a) liability, we must
import a specific intent mens rea that is associated with
attempt offenses, so that a predicate offense like § 844(d)
that requires merely “knowing” misconduct is insufficient.
We do not think Linehan is correct.
Although § 373(a)’s elements clause invokes the concept
of “attempt,” § 373(a) has its own mens rea (“intent”) and is
not itself an attempt offense. Nor does it require a predicate
offense that is itself an attempt crime. The underlying
offense also must already have a heightened mens rea—
knowledge or intent, or at the very least extreme
recklessness. See Borden, 141 S. Ct. at 1825; Begay, 33
F.4th at 1093–94. Linehan cites no authority for the
proposition that “attempted uses” of force in an elements
clause require predicate offenses with an additional and even
higher mens rea, which would confusingly layer multiple
mens rea requirements into the same elements clause. We
thus do not read § 373(a) as incorporating a further mens rea
requirement specific to attempt.
This does not mean that the phrase “attempted use” of
force is without content, however. As we explained above,
an “attempted use” of force does require a predicate crime
that, at minimum, categorically requires the offender to
engage in a substantial step toward the use of violent
physical force. Reading § 373(a) in context and as part of
the broader elements clause, we merely conclude that
“attempted use” of force does not also impose a further mens
rea requirement beyond the one that the elements clause
already requires.
22 UNITED STATES V. LINEHAN
We note, though, that even if Linehan were correct that
the “attempted use” of force means that the predicate offense
must require a mens rea commensurate with that required for
attempt crimes, Linehan’s argument still fails. Although
attempt classically requires specific intent, see Braxton, 500
U.S. at 351 n.*, “[t]raditionally, ‘one intends certain
consequences when he desires that his acts cause those
consequences or knows that those consequences are
substantially certain to result from his acts.’” Tison v.
Arizona, 481 U.S. 137, 150 (1987) (quoting W. LaFave &
A. Scott, Criminal Law § 28, p. 196 (1972)); see also W.
LaFave, Substantive Criminal Law § 5.2(a) (3d. ed. 2017)
(explaining the “traditional view” that specific intent lies
“(1) when [a person] consciously desires [a] result, whatever
the likelihood of that result happening from his conduct; and
(2) when he knows that that result is practically certain to
follow from his conduct, whatever his desire may be as to
that result”). Thus, attempt requires “an intent to do an act
or to bring about a certain consequence which would in law
amount to a crime.” LaFave, Substantive Criminal Law
§ 11.3.
Linehan points to authorities noting that a distinction
between “purposeful” and “knowing” conduct can be
relevant for “inchoate offenses such as attempt and
conspiracy.” United States v. Bailey, 444 U.S. 394, 405
(1980). But that distinction is important because “a
purposeful mental state may help separate criminal conduct
from innocent behavior.” Borden, 141 S. Ct. at 1823 n.3;
see also Bailey, 444 U.S. at 405 (explaining that the purpose
of a “heightened mental state” for inchoate offenses such as
attempt is to “separat[e] criminality itself from otherwise
innocuous behavior”).
UNITED STATES V. LINEHAN 23
Here, however, § 844(d) does not require mere
“knowledge” of some bare facts, nor does it criminalize the
mere knowing transportation or receipt of an explosive.
Instead, it requires someone to transport or receive in
commerce a readied explosive “with the knowledge or intent
that it will be used to kill, injure, or intimidate” a person or
damage property. 18 U.S.C. § 844(d) (emphasis added). A
person who acts with such knowledge is not engaged in
innocent behavior. Thus, we think § 844(d) contains a mens
rea requirement that enables it categorically to qualify as an
attempted use of force, even on Linehan’s mistaken view
that “attempted uses” of force require a higher mens rea.
In sum, when Linehan solicited the completed offense in
§ 844(d), he solicited a crime of violence under § 373(a).
We affirm Linehan’s conviction under Count 2. 2
IV
We lastly consider whether a violation of 18 U.S.C.
§ 1958(a) qualifies as a crime of violence under § 373(a).
The government now concedes it does not. That concession
is well-taken.
Section 1958(a) provides:
Whoever travels in or causes another
(including the intended victim) to travel in
interstate or foreign commerce, or uses or
causes another (including the intended
2
We note that § 373(a) contains an even further protection for criminal
defendants: they must not only intend to solicit a crime of violence but
must do so “under circumstances strongly corroborative of that intent.”
18 U.S.C. § 373(a). Linehan does not raise any challenge to the
sufficiency of the evidence under this portion of the statutory provision.
24 UNITED STATES V. LINEHAN
victim) to use the mail or any facility of
interstate or foreign commerce, with intent
that a murder be committed in violation of the
laws of any State or the United States as
consideration for the receipt of, or as
consideration for a promise or agreement to
pay, anything of pecuniary value, or who
conspires to do so, shall be fined under this
title or imprisoned not more than twenty
years, or both . . . .
18 U.S.C. § 1958(a). To be convicted of violating § 1958(a),
an offender must (1) have traveled or caused another to
travel in interstate commerce, or used or caused another to
use an instrumentality of interstate or foreign commerce, or
conspired to do the same; (2) have done so with the intent
that a murder be committed; and (3) have intended that the
murder be committed in exchange for something of
pecuniary value. See Ninth Cir. Model Crim. Jury
Instruction No. 16.7 (2022); see also United States v.
Phillips, 929 F.3d 1120, 1123 (9th Cir. 2019).
Although it is natural to assume that when “murder” is
referenced in a criminal statute the offense qualifies as a
crime of violence, the United States has conceded on appeal
that § 1958(a) is, in fact, not a predicate offense under the
elements clause of § 373(a). The government’s concession
is based on the Solicitor General’s same concession several
months ago in Grzegorczyk v. United States, 142 S. Ct. 2580
(2022). As the Solicitor General explained in that case, §
1958(a)
require[s] only that a defendant travel in, or
use a facility of, interstate commerce with the
requisite criminal intent; it does not require
UNITED STATES V. LINEHAN 25
that a defendant actually enter into a murder-
for-hire agreement, that he carry out or
otherwise attempt to accomplish his criminal
intent, or that the contemplated murder be
attempted or accomplished by another
person.
Br. of United States at 9, Grzegorczyk, 142 S. Ct. 2580 (No.
21-5967) (quotations and emphasis omitted).
We agree with this analysis. 3 And we further note that
our holding here is consistent with those of other courts to
have addressed the issue. See United States v. Cordero, 973
F.3d 603, 625–26 (6th Cir. 2020) (agreeing with the
government’s concession that § 1958 is not a crime of
violence under U.S.S.G. § 4B1.1(a) because it is “apparent
under the categorical approach that a violation of § 1958 can
occur without the ‘use, attempted use, or threatened use of
physical force’ against another” (quoting U.S.S.G. §
4B1.2(a)(1))); United States v. Boman, 873 F.3d 1035, 1042
(8th Cir. 2017) (explaining that § 1958 is not a crime of
violence under § 924(c)’s elements clause); Fernandez v.
United States, 2021 WL 5113406, at *7 (S.D.N.Y. Nov. 3,
2021); Qadar v. United States, 2020 WL 3451658, at *2
(E.D.N.Y. June 24, 2020); Dota v. United States, 368 F.
Supp. 3d 1354, 1360–61 (C.D. Cal. 2018); United States v.
Herr, 2016 WL 6090714, at *4 (D. Mass. Oct. 18, 2016).
3
Although the Supreme Court declined to remand in Grzegorczyk as the
Solicitor General requested, it did so not because it rejected the United
States’s concession but because the defendant had entered an
unconditional guilty plea that precluded him from challenging his
sentence. 142 S. Ct. at 2580–81 (Kavanaugh, J., respecting the denial of
certiorari).
26 UNITED STATES V. LINEHAN
For these reasons, we reverse Linehan’s conviction on
Count 3 for soliciting a violation of § 1958. 4
* * *
We affirm Linehan’s conviction on Count 2, reverse his
conviction on Count 3, and remand for resentencing
consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND
REMANDED.
4
We do not address whether the aggravated offenses of § 1958(a)—
which impose longer terms of imprisonment if personal injury or death
results—should be treated differently. See United States v. Runyon, 994
F.3d 192, 201–03 (4th Cir. 2021).