United States Court of Appeals
                      For the First Circuit


No. 21-1214

                      ÁNGEL FORTEZA-GARCÍA,

                      Petitioner, Appellant,

                                v.

                          UNITED STATES,

                      Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF PUERTO RICO

       [Hon. Raúl M. Arias-Marxuach, U.S. District Judge]


                              Before

                       Barron, Chief Judge,
              Montecalvo and Aframe, Circuit Judges.


     Franco L. Pérez-Redondo, with whom Rachel Brill, Federal
Public Defender, District of Puerto Rico, Héctor L. Ramos-Vega,
Interim Federal Public Defender, District of Puerto Rico, and Kevin
E. Lerman, Research and Writing Attorney, were on brief, for
appellant.
     Joshua K. Handell, with whom W. Stephen Muldrow, United States
Attorney, Mariana E. Bauzá-Almonte, Assistant United States
Attorney,    Chief,   Appellate    Division,    and   Ricardo    A.
Imbert-Fernández, Assistant United States Attorney, were on brief,
for appellee.
March 3, 2025
            BARRON, Chief Judge.         Ángel Forteza-García appeals the

District Court's denial of his 

 petition for

post-conviction      relief,     in    which   he     seeks   relief     from    his

conviction under 

(j).                That provision makes it a

crime to "cause the death of a person through the use of a firearm"

in the course of violating 

(c), which in turn

criminalizes using or carrying a firearm "during and in relation

to any crime of violence."            Forteza based his petition on United

States v. Davis, 

 (2019), which held unconstitutionally

vague a portion of the definition of a "crime of violence" in

§ 924(c).     Forteza contends that, in consequence of Davis, the

predicate conviction for his § 924(j) offense does not qualify as

a "crime of violence," and thus that his conviction for that

offense is unconstitutional.           We disagree and affirm.

                                        I.

            Section 924(c) makes it a crime to use or carry a firearm

"during   and   in    relation    to    any    crime    of    violence    or    drug

trafficking     crime . . . for        which    the    [perpetrator]      may    be

prosecuted in a court of the United States," or to possess a

firearm in furtherance of any such crime of violence or drug

trafficking crime.        

(c)(1)(A).                 Section 924(j)

criminalizes anyone who, in the course of committing a violation

of § 924(c), "causes the death of a person through the use of a

firearm,"   with     different    penalties     depending      on    whether    that

                                       - 3 -
killing would qualify as murder or manslaughter under federal law.

Id. § 924(j).

          So, to prove that a defendant has committed a violation

of § 924(j), the government must prove not only that a killing

occurred through the use of a firearm, but also that the killing

occurred in the course of the defendant committing a "crime of

violence or drug trafficking crime" within the meaning of § 924(c).

The relevant definition of "crime of violence" for § 924(c) is set

forth in § 924(c)(3).   It provides that such a crime includes any

felony offense that, under what is known as the force clause, "has

as an element the use, attempted use, or threatened use of physical

force against the person or property of another" or that, under

what is known as the residual clause, "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."

Id. § 924(c)(3).

          Forteza's § 924(j) conviction stems from an indictment

that was handed up in the District of Puerto Rico in March 2003.

The indictment charged him with five counts, though only two are

relevant to this appeal.

          The first relevant count ("Count One") charged Forteza

with "aiding and abetting" a violation of 

(a).

Although often referred to as the federal mail robbery statute

because it criminalizes the robbery of custodians of United States

                              - 4 -
mail, § 2114(a) also criminalizes the robbery of any person who

has "lawful charge" of "any money or other property of the United

States."    

(a); see Garcia v. United States, 

 (1984).   The violation was alleged to have involved

the assault of a government informant, who possessed money provided

by the government for the purpose of effecting a controlled

purchase of a firearm, with the intent to rob him.      This count

further alleged that the victim of the assault was "wounded" and

his life was "put . . . in jeopardy" when he was shot several times

and ultimately died.

            The other count that is relevant to this appeal ("Count

Three") charged Forteza with "aiding and abetting" a violation of

§ 924(j).    It did so by alleging that the violation of § 2114(a)

described in Count One was committed by the use or carrying of a

firearm during the incident, and that "in the course of that crime

of violence," the victim was "unlawfully killed . . . through the

use of a firearm."

            Forteza pleaded guilty in September 2003 only to Count

Three, which had charged him with the § 924(j) offense.         In

exchange for his guilty plea, the government agreed to drop the

remaining four charges -- including the § 2114(a) charge -- and to

recommend a sentence below the maximum term authorized for a

violation of § 924(j).    Forteza was then sentenced to 324 months

in prison, followed by five years of supervised release.

                                - 5 -
            Forteza       unsuccessfully    appealed      his   conviction     and

sentence.    United States v. Fortez[a]-García, Nos. 04-1215, 04-

1398, 04-1216, 04-2458, 

 (1st Cir. Sept. 8, 2006).

He then filed a petition for post-conviction relief under 

 in the District of Puerto Rico in 2006.

            The     petition   alleged     that    Forteza's    conviction     and

sentence were unconstitutional due to prosecutorial and judicial

misconduct    and    his    having    received    ineffective     assistance    of

counsel.     The petition was denied.             Forteza does not appear to

have appealed that ruling.

            In    2017,    however,    Forteza    filed   an    application    for

permission to file a second petition for post-conviction relief

under § 2255.       He did so on the ground that his § 924(j) conviction

was unconstitutional under intervening precedent of the Supreme

Court of the United States in Davis, which was decided in 2019.

There, the Court held that the portion of § 924(c)(3)'s "crime of

violence" definition which encompassed any felony 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" was unconstitutionally vague.                Davis, 

.

            This Court granted that application in 2020.                Forteza

thereafter filed the petition that is at issue in this appeal.



                                       - 6 -
              Forteza's      petition    alleges       that,    in       consequence   of

Davis, his § 2114(a) offense can only properly support his § 924(j)

conviction     if    it    qualifies     as    a    "crime     of       violence"   under

§ 924(c)(3)(A)'s force clause.               But, the petition further alleges,

that offense does not so qualify, because § 2114(a) does not have

"as an element the use, attempted use, or threatened use of

physical force against the person or property of another" that is

required under § 924(c)(3)(A).

              The District Court rejected this argument on the ground

that the § 2114(a) offense of which Forteza had been convicted

does   have    as    an    element     the    use     of   force        contemplated   by

§ 924(c)(3)(A).           Forteza-García v. United States, No. 20-1145,

, at *6 (D.P.R. Feb. 26, 2021).                       In so ruling, the

District   Court      also     noted    that    any    argument          that   Forteza's

predicate offense would not so qualify under the force clause

because he had been an accomplice to that offense, rather than a

principal, was foreclosed by binding First Circuit precedent.                          

Finally,   the      District    Court    denied       Forteza       a    certificate   of

appealability (COA) on his claim.               

              Forteza requested a COA from this Court.                    We granted the

request with respect to his claim that his § 924(j) conviction was

unconstitutional under Davis.




                                        - 7 -
                                II.

          "When reviewing a district court's denial of a § 2255

petition, we review the district court's legal conclusions de novo

and any factual findings for clear error."      Lassend v. United

States, 

 (1st Cir. 2018) (citation omitted).

"The question of whether an offense qualifies as a crime of

violence is a quintessentially legal one[.]"      United States v.

Martinez, 

 (1st Cir. 2014) (citation omitted).

The question of which offense serves as the defendant's purported

predicate offense under the categorical approach, however, is a

question of fact.   Pereida v. Wilkinson, 

 (2021).

Because this is a question of fact that we review for clear error,

we will only disturb the District Court's findings if, after

reviewing the whole record, we are left with "a strong, unyielding

belief that a mistake has been made."        See United States v.

Fitzpatrick, 

 (1st Cir. 2023) (quoting United

States v. Cintrón-Echautegui, 

 (1st Cir. 2010)).

                               III.

          Forteza agrees that he can succeed on his Davis-based

challenge to the denial of his petition only if he can demonstrate

that the § 2114(a) offense underlying his § 924(j) conviction does

not have "as an element the use, attempted use, or threatened use

of physical force against the person or property of another."   

(c)(3); see Mathis v. United States, 

, 504

                               - 8 -
(2016); United States v. Taylor, 

 (1st Cir. 2017);

see also United States v. Collymore, 

 (2d Cir.

2023) (explaining that "because an element of an offense under

section 924(j)(1) is that the defendant was 'in the course of a

violation of [§ 924(c)],'" a predicate that does not qualify for

the purposes of § 924(c) cannot qualify as a predicate for the

purposes of § 924(j)).   But although Forteza contends that he can

demonstrate just that, we conclude that he has failed to do so.

                                A.

          Section 2114(a)1 provides as follows:

          (a) Assault.--A person who assaults any person
          having lawful charge, control, or custody of
          any mail matter or of any money or other
          property of the United States, with intent to
          rob, steal, or purloin such mail matter,
          money, or other property of the United States,
          or robs or attempts to rob any such person of
          mail matter, or of any money, or other
          property of the United States, shall, for the
          first offense, be imprisoned not more than ten
          years; and if in effecting or attempting to
          effect such robbery he wounds the person
          having custody of such mail, money, or other
          property of the United States, or puts his
          life in jeopardy by the use of a dangerous
          weapon, or for a subsequent offense, shall be
          imprisoned not more than twenty-five years.
          

(a).

          The parties agree that § 2114(a) sets out at least two

separate offenses -- a simple form of the offense and an aggravated


     1 Section 2114 also contains a second provision, subsection
(b), but no party contends that this subsection was the basis of
Forteza's § 2114 offense.

                              - 9 -
form of it.   Taylor, 

 (explaining that statutes

which list multiple elements in the alternative are "divisible"

into separate offenses under the categorical approach, meaning

that some forms of the offense may have as an element the requisite

force while other forms of the offense may not).      The parties'

agreement, however, ends there with respect to the nature and

number of offenses that § 2114 delineates.

          As Forteza sees it, the text from § 2114(a) that is

quoted above sets out only two offenses.     The first offense, in

his view, is a single, indivisible, simple variant of a § 2114(a)

offense, which is defined only by the text that precedes the

semicolon in that statute.   The second offense, in his view, is

also a single, indivisible offense, but it is defined by all the

text following the semicolon, which sets forth an aggravated

variant of the § 2114(a) offense.   As a result, he contends that,

although the aggravated form of the § 2114(a) offense can be

committed by wounding or placing the life of a custodian of federal

property in jeopardy in the course of committing simple § 2114(a),

it also can be committed by committing the simple form of the

§ 2114(a) offense more than once.      Forteza then argues that,

because the simple form of mail robbery set forth in § 2114(a) can

be committed without using the force required under § 924(c)(3),

that § 2114(a) offense does not qualify as a "crime of violence"

under the definition of a "crime of violence" that provision sets

                              - 10 -
forth.    And he goes on to argue that it follows that, because the

aggravated variant of the § 2114(a) offense can be committed by

merely committing the simple variant of the § 2114(a) offense

twice, the aggravated form of the § 2114(a) offense also fails to

qualify as a "crime of violence" that could support his § 924(j)

conviction.

           According   to   the   government,   however,    the   text    in

§ 2114(a) that precedes the semicolon sets out three distinct

simple variants of the § 2114(a) offense: the first predicated on

robbery of a custodian of federal property, the second predicated

on assault of that custodian with intent to rob, and the third

predicated on attempted robbery of that custodian.         The government

then goes on to contend that the text after the semicolon sets out

two distinct aggravated variants of the § 2114(a) offense.               The

first of those offenses, according to the government, is for an

offense in which a person wounds the custodian while committing

the simple § 2114(a) offense.         The second of those offenses,

according to the government, is for an offense in which a person

places that custodian's life in jeopardy by the use of a dangerous

weapon.    Finally, the government argues that the remaining text

after the semicolon sets forth not a separate § 2114(a) offense

but merely a sentencing factor, which enhances the sentence for

any § 2114(a) offense -- whether a simple or aggravated variant of



                                  - 11 -
such an offense -- based on the defendant having violated § 2114(a)

more than once.

          From this premise, the government argues that each of

the   robbery-,   wounding-,    and      placing-life-in-jeopardy-based

§ 2114(a) offenses has as an element the use of force that is

required for an offense to qualify as a "crime of violence" under

§ 924(c)(3)(A).     As a result, in the government's view, so long

as Forteza's predicate § 2114(a) offense was for one of these kinds

of § 2114(a) offenses, it was for an offense that suffices to

support Forteza's § 924(j) conviction because it was for a "crime

of violence" within the meaning of § 924(c)(3).

          Against     this   backdrop,     we    begin   with   Forteza's

contention that, because it is not clear from the record whether

his predicate offense was based on the simple or aggravated variant

of the § 2114(a) offense,2 the District Court was obliged to treat

his predicate offense as being for the simple rather than the

aggravated form of the offense and thus to conclude that it did

not qualify as a "crime of violence."           Because we conclude that




      2The government contends that Forteza's challenge to the
District Court's finding that he was convicted of aggravated mail
robbery is "underdeveloped" and thus waived. But, because we find
the "simplest way to decide" Forteza's challenge on this ground is
to proceed to the merits, we do so here. See, e.g., United States
v. Grullon, 

, 32 (1st Cir. 2021) (quoting United States
v. McCullock, 

 (1st Cir. 2021)).

                                - 12 -
there is no merit to this contention, we then proceed to address

Forteza's fallback contentions.

                                    B.

           Forteza begins with the point that the only count of his

indictment that he pleaded guilty to was Count Three, which charged

him with violating § 924(j).      See United States v. Faust, 

 (1st Cir. 2017) (holding that a court may look to a

defendant's "charging document, written plea agreement, transcript

of [their] plea colloquy, and any explicit factual finding by the

trial judge to which the defendant assented," to determine which

offense   under   a   divisible   statute   formed   the   basis   of   the

defendant's predicate (quoting Shepard v. United States, 

 (2005))).      Count Three, to which he pleaded guilty, alleges

that Forteza and his codefendants:

           [A]iding   and   abetting   each   other,    did
           willfully,   intentionally,    and   unlawfully
           possess, use or carry a firearm during and in
           relation to a crime of violence, . . . that
           is, assaulting an individual who lawfully had
           charge, control, or custody of money of the
           United States, with intent to rob, steal, or
           purloin said money, as set forth in COUNT ONE
           herein, which is realleged and incorporated by
           reference herein, . . . and, in the course of
           that crime of violence, the defendants herein
           unlawfully killed [the victim] with malice and
           aforethought    through    the    use    of    a
           firearm, . . . by     knowingly,     willfully,
           deliberately   and    maliciously    and    with
           premeditation shooting [the victim] with a
           firearm thus causing his death . . . .



                                  - 13 -
           Forteza argues that, because there is no reference in

this count to any potentially aggravating element (or elements) of

§ 2114(a) -- that is, to wounding the victim, placing his life in

jeopardy, or committing more than one § 2114(a) offense -- the

count does not make clear that the predicate offense underlying

his § 924(j) conviction was for anything other than the simple

form of the § 2114(a) offense.      Thus, he contends, the District

Court was required to treat his predicate § 2114(a) offense as if

it were for the less serious form of the offense and so was for a

simple rather than an aggravated form of the § 2114(a) offense.

           Moreover, Forteza contends that the District Court's

contrary   conclusion   is   mistaken   insofar   as   it   rests   on   the

references in the text quoted above from Count Three to a firearm

and to the shooting and killing of the victim.          He contends that

those references in the text of Count Three do not establish that

he pleaded guilty to any element (or elements) of having wounded

or placed the life of the victim in jeopardy with respect to an

aggravated form of a § 2114(a) offense.           Instead, he contends,

those references were made with respect to establishing that he

pleaded guilty to the elements of the § 924(j) offense, which

requires that the government establish the death of a victim caused

by a firearm.

           Finally, Forteza disputes that the text of Count One of

the indictment -- the count charging his § 2114(a) offense -- is

                                 - 14 -
incorporated into the text of Count Three.              But, he contends, even

if that text from Count One is in fact incorporated into Count

Three,   the   text   of    Count   One    does   not   itself   reference     any

particular aggravating element of § 2114(a).                Thus, he contends

that text cannot support the conclusion that, because the record

establishes that he pleaded guilty to Count Three, the record

establishes    that   his    predicate      § 2114(a)    offense   was   for   an

aggravated rather than a simple form of that offense.

           Forteza, however, is not correct about the contents of

the text of Count One.        That text does specifically allege that,

in the course of committing the § 2114(a) violation, he and his

codefendants "wounded [the victim], the custodian of said money

and put [the victim's] life in jeopardy, by shooting [him] several

times and causing his death."             (Emphasis added).      The underlined

portions of that text clearly reference the portion of § 2114(a)'s

text that describes wounding or placing a victim's life in jeopardy

by the use of a dangerous weapon.            See 

(a).

           Forteza, therefore, can only succeed in arguing that the

record is not clear as to the nature of his predicate § 2114(a)

offense if the language in Count One concerning his § 2114(a)

offense is not incorporated by reference into the count to which

he pleaded guilty, which is Count Three.                   But, although the

District Court did not make any explicit finding as to whether the

language of Count One was incorporated into Count Three, the record

                                     - 15 -
makes clear that the language of Count One was so incorporated.

See Pullman-Standard v. Swint, 

 (1982) (holding

that appellate courts should remand to the district court to make

"missing   findings . . . unless       the   record    permits    only    one

resolution of the factual issue").

           Count Three -- the § 924(j) count to which Forteza

pleaded guilty -- states that the crime of violence underlying the

§ 924(j) charge is "assaulting an individual who lawfully had

charge, control, or custody of money of the United States, with

intent to rob, steal, or purloin said money, as set forth in COUNT

ONE [of the indictment] herein, which is realleged and incorporated

by reference herein."     (Emphasis added).           In addition, at the

change-of-plea hearing, the sentencing judge confirmed that the

predicate offense underlying the § 924(j) charge was the § 2114(a)

charge "as [was] further described in the main count of the

indictment, [C]ount [O]ne."

           Forteza does argue that this conclusion is foreclosed by

the language in the plea agreement that states that the agreement

"constitutes   the   complete   Plea    Agreement     between    the   United

States, the defendant, and the defendant's counsel," and further

that the "United States has made no promises or representations

except as set forth in writing in this plea agreement and deny

[sic] the existence of any other term and conditions not stated

herein."   But that is not so.     The language of Count One is part

                                 - 16 -
of -- and so within the four corners of -- the plea agreement

itself precisely because it is expressly incorporated into Count

Three    by   that   count's   plain   terms. 3   It   is   thus   clear   that

Forteza's predicate § 2114(a) offense was based on his having aided

and abetted a violation of § 2114(a) that involved placing the

life of the victim in jeopardy by the use of a dangerous weapon

and wounding that victim.        Thus, it is clear from the record that

his § 2114(a) offense was for an aggravated rather than a simple

form of that offense, such that his challenge based on the offense

having been for a simple form of that offense necessarily fails.

                                       C.

              Forteza does separately contend that the aggravated form

of § 2114(a) is indivisible as between wounding, placing life in

jeopardy, and the repeated commission of the simple form of the

§ 2114(a) offense.       Thus, he contends that even the aggravated

form of the § 2114(a) offense charged in Count One does not qualify

as a "crime of violence," precisely because the simple form of

that offense does not.         But we have rejected this exact argument

in Rojas-Tapia v. United States, __ F.4th __ [slip op. at 18-22]

(1st Cir. 2024) [Nos. 20-1514, 20-1735].4         Nor does Forteza develop


     3 Though Forteza is correct that the transcript of the
change-of-plea colloquy did not contain any mention of a wounding
or placing-life-in-jeopardy aggravator of § 2114(a), he makes no
argument that this should trump any explicit reference to such
aggravators in the incorporated language of the plea agreement.
     4   Because we reject Forteza's argument about the indivisible
                                   - 17 -
any other argument as to why we must conclude that the District

Court   was    wrong    to   hold   that     the    aggravated    variant     of   the

§ 2114(a) offense with which he was charged would qualify as a

crime of violence under § 924(c)'s force clause.                       See United

States v. Zannino, 

 (1st Cir. 1990) (deeming issue

waived where party makes no "effort at developed argumentation").

                                           D.

              There remains, then, only Forteza's final ground for

challenging his § 924(j) conviction.               Here, he contends that, even

if his predicate § 2114(a) offense would qualify as a crime of

violence      under    § 924(c)'s    force      clause     when   committed    by    a

principal, it does not so qualify here because he committed that

offense as an aider and abettor.                   See 

 ("Whoever

commits an offense against the United States or aids, abets,

counsels,      commands,     induces    or      procures    its   commission,       is

punishable as a principal.").                But we have also rejected this

argument in Rojas-Tapia.            See Rojas-Tapia, __ F.4th at __ [slip

op. at 26-35].        We thus must reject this aspect of his challenge

to the District Court's decision to deny his habeas petition as

well.




nature of the aggravated form of the § 2114(a) offense on the
merits, we need not address the government's contentions that he
waived this argument both below and on appeal. See, e.g., Grullon,
996 F.3d at 32.

                                       - 18 -
                    IV.

The decision of the District Court is affirmed.




                   - 19 -