In United States v. Linehan, --- F.4th ---, No. 21-50206 (9th Cir. 2022), the Court 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.
The prosecution was based on the fact that 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.
On appeal, the Court "address[ed] 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)." It held, "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."
The opinion contains a lengthy categorical analysis of the predicate crimes, with a focus on "attempted use of force."
It is very hard to summarize the discussion in a way that would be beneficial. So, if you have a case where you are litigating whether a predicate qualifies as a categorical crime of violence, this case is a must read.
