21-1438 Medunjanin v. United States

In the United States Court of Appeals For the Second Circuit _________________

August Term 2023 Submitted: October 3, 2023 Decided: April 24, 2024

Docket No. 21-1438

ADIS MEDUNJANIN, AKA MOHAMMED,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

_________________

Before: JACOBS, WESLEY, and ROBINSON, Circuit Judges. _________________ Adis Medunjanin, appearing pro se, challenges an order of the United States

District Court for the Eastern District of New York (Cogan, J.) denying in part his

motion pursuant to

to vacate one of his convictions under

(c). We granted a certificate of appealability to address whether the

trial court’s instruction that the jury could find Medunjanin guilty of aiding and abetting a crime of violence affected the crime’s validity as a § 924(c) predicate.

We conclude it does not and therefore AFFIRM.

_________________

FOR PETITIONER-APPELLANT: Adis Medunjanin, Pro Se, Terre Haute, IN.

FOR RESPONDENT-APPELLEE: Douglas M. Pravda, (Susan Corkery, on the brief) Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY _________________

PER CURIAM:

BACKGROUND

In 2010, Petitioner-Appellant Adis Medunjanin was arrested and charged

with nine terrorism-related counts stemming from a plot to conduct coordinated

suicide bombings in the New York City subway system. As relevant here, the

indictment charged Medunjanin with one count of attempting to commit an act of

terrorism transcending national boundaries, in violation of

and

2332b, and two counts of possessing a destructive device in furtherance of crimes

of violence, in violation of

(c). One of the § 924(c) counts was

predicated on, among other offenses, the attempted terrorism count.

2 Medunjanin proceeded to trial in 2012. Because several counts charged him

as both a principal and as an aider and abettor, the District Court (Gleeson, J.)

began its jury charge with an instruction on aiding and abetting liability generally.

The court explained that to convict a defendant as an aider and abettor, the

Government needed to prove beyond a reasonable doubt that another person

committed the crime at issue; that the defendant knowingly and intentionally

associated himself in some way with the crime; and that the defendant

participated in the crime by engaging in some affirmative conduct or overt act for

the specific purpose of bringing about the crime.

The District Court later explained the elements of attempted terrorism and

noted that the jury could convict Medunjanin on this count based on an aiding and

abetting theory. Specifically, the District Court explained that if the jury found the

Government had proven “beyond a reasonable doubt that someone else attempted

to commit an act of terrorism transcending national boundaries and applying the

instructions” the District Court previously gave regarding aiding and abetting

liability, the jury could “find [Medunjanin] guilty provided” the Government

established the requisite elements beyond a reasonable doubt. Trial Tr. 2046–47.

3 The jury returned a general verdict sheet, devoid of any indication of any

theory of liability, convicting Medunjanin of all nine counts. Medunjanin was

sentenced to what amounted to a life sentence; 1 we affirmed his conviction on

appeal. See United States v. Medunjanin,

(2d Cir. 2014).

In 2019, Medunjanin moved to vacate several of his convictions pursuant to

. He argued, as relevant here, that his § 924(c) convictions required

vacatur because they were premised on invalid crime of violence predicates in

light of Sessions v. Dimaya,

(2018), and its progeny. The Government

conceded that one of the § 924(c) convictions required vacatur because its

predicates—conspiracy to commit murder abroad in violation of

(a)(1) and receiving military-style training from a foreign terrorist

organization in violation of 18 U.S.C. § 2339D—were not “crime of violence”

predicates. It maintained, however, that the other § 924(c) conviction should be

upheld because one of its predicates, attempted terrorism, remained a crime of

violence.

1 Medunjanin was sentenced, principally, to 65 years’ total imprisonment for the non- § 924(c) counts, plus consecutive terms of 30 years’ imprisonment for the first § 924(c) count and life imprisonment for the second § 924(c) count. 4 The District Court (Cogan, J.) granted in part and denied in part

Medunjanin’s motion. See United States v. Medunjanin, 10-cr-0019 (BMC), 19-cv-

2371 (BMC), 20-cv-2755 (BMC),

, at *1 (E.D.N.Y. Oct. 6, 2020). As

relevant here, it agreed with the Government that Medunjanin’s first § 924(c)

conviction, predicated on conspiracy to commit murder abroad and receiving

military-style training, should be vacated. It also agreed with the Government that

the second § 924(c) conviction should be upheld because attempted terrorism was

categorically a crime of violence. 2 Id. at *3–6. The District Court concluded that

2 To determine whether a predicate offense is a crime of violence, courts apply a “categorical approach” under which they “identify the minimum criminal conduct necessary for conviction under a particular statute by looking only to the statutory definitions—i.e., the elements—of the offense” and “then evaluate whether this minimum conduct falls within the definition of a crime of violence under” § 924(c)(3)(A)’s elements clause. United States v. Pastore,

(2d Cir. 2023) (internal quotations omitted and alterations adopted). Where a statute is “divisible” (meaning it lists elements in the alternative and therefore defines multiple crimes), courts employ a multi-step “modified” categorical approach and review “a limited class of documents from the record of conviction,” including the charging instrument, “to determine what crime, with what elements, serve[d] as the predicate crime of violence.” United States v. Morris,

, 317–18 (2d Cir. 2023) (internal citation and quotations omitted). Courts then return to the categorical analysis and compare the elements of the isolated predicate crime with § 924(c)(3)(A)’s definition of “crime of violence” to determine if the predicate is a crime of violence. See id. at 318–20. The District Court concluded that 18 U.S.C. § 2332b was divisible, looked to the relevant crimes as charged in the indictment and to the jury, and determined that each categorically constituted a crime of violence under § 924(c)(3)(A). The District Court rejected the Government’s assertion that any attempt to commit a crime of violence was

5 aiding and abetting the use of a destructive device did not implicate the crime of

violence analysis; it did not address, however, what impact, if any, the court’s

instructions regarding aiding and abetting liability for attempted terrorism had on

that offense’s status as a crime of violence. Id. at *6. The District Court denied

Medunjanin’s other requests for relief and entered an amended judgment,

resulting in an adjusted total sentence of 95 years imprisonment. Id. at *7–9.

This appeal followed. The appeal was initially stayed pending the Supreme

Court’s disposition of United States v. Taylor,

(2022). After the

Supreme Court issued Taylor, the stay was lifted, and the parties supplemented

their briefings accordingly. Medunjanin argued, among other things, that the

attempted terrorism count was an invalid predicate because (1) attempted

terrorism is not categorically a crime of violence and (2) the jury may have found

him guilty of attempted terrorism based on aiding and abetting liability. We

granted a certificate of appealability to resolve only the issue of “whether the trial

court’s instruction that the jury could find Appellant guilty of the attempted

necessarily a crime of violence itself and instead concluded that any attempts to commit each of the individual § 2332b acts as charged were categorically crimes of violence. See United States v. Medunjanin, 10-cr-0019 (BMC), 19-cv-2371 (BMC), 20-cv-2755 (BMC),

, at *4–6 (E.D.N.Y. Oct. 6, 2020). 6 terrorism count on aiding and abetting liability affected its validity as an

(c) predicate,” and denied a certificate of appealability as to Medunjanin’s

other claims, including his objection to the District Court’s conclusion that 18

U.S.C. § 2332b is a crime of violence.

DISCUSSION

Under

(a), a prisoner may petition a district court to “vacate,

set aside or correct” a sentence if “the sentence was imposed in violation of the

Constitution or laws of the United States, . . . or [the sentence] is otherwise subject

to collateral attack.” “We review de novo a district court’s denial of a § 2255

motion.” Kassir v. United States,

(2d Cir. 2021). Because the

certificate of appealability was limited to the issue of aiding and abetting liability,

our review is limited to Medunjanin’s argument that the attempted terrorism

count is an invalid crime of violence predicate solely because his criminal liability

may have rested on an aiding and abetting theory. See Armienti v. United States,

(2d Cir. 2000) (“We will not address a claim not included in the

certificate of appealability.”).

A bit of background on the evolving “crime of violence” jurisprudence is

helpful. Section 924(c) imposes a mandatory consecutive term of imprisonment

7 when “any person” uses, as relevant here, a destructive device “during and in

relation to any crime of violence . . . for which the person may be prosecuted in a

court of the United States.”

(c)(1)(A)–(B). Section 924(c) defines a

crime of violence in two ways: by reference to an “elements” clause and a

“residual” clause. See § 924(c)(3)(A)–(B). An offense is a crime of violence under

the elements clause if the offense “has as an element the use, attempted use, or

threatened use of physical force against the person or property of another.”

§ 924(c)(3)(A). An offense is a crime of violence under the residual clause if the

offense is one “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.” § 924(c)(3)(B).

In Sessions v. Dimaya, the Supreme Court struck down as unconstitutionally

vague a residual clause in

(b) with the virtually identical wording.

, 174–75 (2018). Dimaya was later extended to § 924(c) itself in United

States v. Davis, where the Supreme Court likewise struck down § 924(c)(3)(B)’s

residual clause as unconstitutionally vague.

(2019). Post-

Davis, a § 924(c) conviction may only be premised on a crime of violence as defined

under § 924(c)(3)(A)’s elements clause.

8 To determine whether an offense constitutes a crime of violence, courts

employ the “categorical approach”; the appropriate inquiry is whether the

relevant felony “has as an element the use, attempted use, or threatened use of

physical force.” Taylor,

(quoting § 924(c)(3)(A)) (emphasis omitted).

“Under this approach, we do not consider the particular facts before us; rather, we

identify the minimum criminal conduct necessary for conviction under a

particular statute by looking only to the statutory definitions—i.e., the elements of

the offense.” United States v. Pastore,

(2d Cir. 2023) (internal

quotations omitted and alterations adopted); see also supra footnote 2.

Section 2 of Title 18 defines the scope of criminal responsibility for violations

of federal criminal law; it provides in part that “[w]hoever commits an offense

against the United States or aids, abets, counsels, commands, induces or procures

its commission, is punishable as a principal.”

(a). “To convict a

defendant of aiding and abetting a substantive crime, the government must prove

that the underlying crime was committed by someone other than the defendant

and that the defendant himself either acted or failed to act with the specific intent

of advancing the commission of the underlying crime.” United States v. Smith,

(2d Cir. 1999) (internal quotations omitted).

9 We previously held that a § 924(c) conviction may be predicated on aiding

and abetting a crime of violence. See United States v. McCoy (“McCoy I”),

, 57–58 (2d Cir. 2021). In McCoy I, the defendants argued that their § 924(c)

convictions premised on aiding and abetting attempted and completed Hobbs Act

robbery should be reversed. In their view, “aiding-and-abetting a substantive

Hobbs Act offense is not a crime of violence” because their involvement in the

underlying offenses was limited to sitting “in nearby cars” while others “entered

the targeted homes, threatened the victims, and stole or attempted to steal the

victims’ property.” Id. In other words, because the defendants may not have

personally used, attempted to use, or threatened the use of force, their convictions

were not categorically crimes of violence.

We disagreed. Explaining that aiding and abetting merely describes a

defendant’s role in the underlying offense—rather than a distinct crime—we

emphasized that the crime ultimately charged in an aiding and abetting

prosecution is the relevant offense itself. Id. at 58 (citing, among other cases, Smith,

198 F.3d at 382–83). Thus, “[i]f the underlying offense is a crime of violence, it is a

predicate for § 924(c) liability; if the defendant aided and abetted that underlying

10 offense, he is guilty of the underlying offense . . . [and was] convicted of crimes

that are proper predicates for § 924(c) liability.” Id.

The Supreme Court later held in Taylor that attempted Hobbs Act robbery

is not categorically a crime of violence, 596 U.S. at 858–60; McCoy I was accordingly

vacated and remanded for further proceedings in light of Taylor,

(Mem.). On remand, we vacated the McCoy I defendants’ § 924(c) convictions

premised on attempted Hobbs Act robbery but upheld their § 924(c) convictions

premised on completed Hobbs Act robbery, which remained a crime of violence

post-Taylor. See United States v. McCoy (“McCoy II”),

, 73–74 (2d Cir.

2023). McCoy II expressly stated, however, that the defendants’ § 924(c)

convictions predicated on completed Hobbs Act robbery were upheld “for the

reasons stated in our earlier opinion,” id. at 75, reasons that necessarily included

McCoy I’s conclusion regarding aiding and abetting liability. See Gomez v. United

States,

, 110 n.4 (2d Cir. 2023) (“In McCoy [II], we reaffirmed on remand

that the completed Hobbs Act robbery—tried on an aiding-and-abetting theory—

remained a valid § 924(c) predicate.”).

11 We now again hold that the fact that a defendant may have been convicted

of an otherwise valid crime of violence based on an aiding and abetting theory of

liability has no effect on the crime’s validity as a § 924(c) predicate.

It is well-settled that we remain bound by a prior decision of this Court

“until it is overruled either by this Court sitting en banc or by the Supreme Court,”

In re Guo,

, 105 (2d Cir. 2020) (quoting Doscher v. Sea Port Grp. Sec., LLC,

(2d Cir. 2016), abrogated on other grounds by Badgerow v. Walters,

(2022)), or until “an intervening Supreme Court decision casts doubt on

the prior ruling” such that “the Supreme Court’s conclusion in a particular case . . .

broke[] the link on which we premised our prior decision or undermined an

assumption of that decision,” Doscher,

(internal citations and

quotations omitted and alterations adopted).

Nothing in Taylor overrules, alters, or otherwise casts doubt on the aiding-

and-abetting logic and conclusion set forth in McCoy I. The Supreme Court in

Taylor rejected the premise that a specific offense—attempted Hobbs Act

robbery—constituted a § 924(c)(3)(A) crime of violence. See 596 U.S. at 850–51.

This is because one element of completed Hobbs Act robbery requires the

defendant to have used “actual or threatened force.” Id. (emphasis added). A

12 person could therefore commit attempted Hobbs Act robbery through the mere

attempted threat of force. It necessarily followed then that attempted Hobbs Act

robbery did not categorically involve the use, attempted use, or threatened use of

physical force and could not qualify as a crime of violence under § 924(c)(3)(A).

Id. at 852.

Unlike attempt, however, aiding and abetting merely assigns criminal

liability; it does not define the crime. Thus, in an aiding and abetting prosecution,

the Government must still prove that “the underlying crime was committed by

someone other than the defendant.” United States v. Pipola,

(2d

Cir. 1996). Where the underlying substantive offense has “as an element . . . the

use, attempted use, or threatened use of force,” Taylor,

, the same

force is necessarily an element in an aiding and abetting prosecution. “[C]riminal

law now uniformly treats [aiders and abettors and principals] alike.” Gonzales v.

Duenas-Alvarez,

(2007). A defendant convicted of aiding and

abetting a crime of violence is therefore guilty of the crime of violence itself; the

crime of violence thus qualifies as a proper predicate for § 924(c) liability.

In so holding, we join our sister Circuits that have likewise rejected the

argument that Taylor called into question the viability of § 924(c) violations or

13 convictions predicated on aiding and abetting crimes of violence. See United States

v. Stevens,

, 661–63 (3d Cir. 2023) (explaining that because the acts of

the principal become those of the aider and abettor as a matter of law, a conviction

for aiding and abetting completed Hobbs Act robbery qualified as a crime of

violence under § 924(c)); United States v. Draven,

, 316–18 (4th Cir. 2023)

(“[O]ur precedent clearly dictates that carjacking resulting in death is a crime of

violence[;] so too [then] is aiding and abetting carjacking resulting in death”

because “aiders and abettors are treated as principals.”); United States v. Hill,

, 362–63 (5th Cir. 2023) (“[W]e conclude that the substantive equivalence

of aiding and abetting liability with principal liability means that aiding and

abetting Hobbs Act robbery is, like Hobbs Act robbery itself, a crime of violence.”);

Nicholson v. United States,

, 880–81 (6th Cir. 2023) (“VICAR [(Violent

Crimes in Aid of Racketeering)] aiding-and-abetting assault with a dangerous

weapon qualifies as a crime of violence because an element of the offense requires

a finding of the use or threatened use of physical force.”); United States v. Worthen,

, 1067–71 (7th Cir. 2023) (holding that because an aider and abettor of

a substantive offense “necessarily commits all the elements” of the offense, when

the substantive offense satisfies § 924(c)(3)(A), aiding and abetting the offense

14 qualifies as a crime of violence as well); United States v. Eckford,

, 1236–

37 (9th Cir. 2023) (“Taylor dealt with an inchoate crime, an attempt, and does not

undermine our precedent on aiding and abetting liability” because “aiding and

abetting is a different means of committing a single crime, not a separate offense

itself.” (citation and internal quotations omitted)); United States v. Wiley,

, 1363–65 (11th Cir. 2023) (rejecting the argument that the reasoning

underlying Taylor’s attempted Hobbs Act robbery analysis was applicable to

accessory liability under § 2 because aiding and abetting “is not a separate federal

crime” like attempt (citation omitted)).

In sum, when a jury convicts a defendant of a crime of violence premised on

aiding-and-abetting liability, that defendant is guilty under the law of the crime of

violence itself. Because Medunjanin was convicted of a crime of violence, his

remaining § 924(c) conviction is valid.

CONCLUSION

For the reasons stated above, the judgment of the United States District

Court for the Eastern District of New York is AFFIRMED.

15