United States of America v. Craig Xavier Alston, a/k/a CK

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7906
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CRAIG XAVIER ALSTON, a/k/a CK,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:12-cr-00513-JFA-5; 3:16-
cv-01888-JFA)
Submitted: July 1, 2021 Decided: August 13, 2021
Before DIAZ and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Craig Xavier Alston, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Craig Xavier Alston appeals the district court’s order denying relief on his 28 U.S.C.
§ 2255 motion. On appeal, Alston challenges the district court’s rejection of his claim that
his 18 U.S.C. § 924(c) conviction is infirm following United States v. Davis, 139 S. Ct.
2319 (2019) (holding that residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally
vague). We affirm.1
“We review de novo the district court’s denial of a [§] 2255 motion.” United States
v. Pressley, 990 F.3d 383, 387 (4th Cir. 2021). Liberally construing Alston’s informal
brief, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), Alston fairly challenges only the
district court’s determination that the predicate crime of violence underlying his § 924(c)
conviction was the offense charged in Count 6 of the indictment: a violent crime in aid of
racketeering (VICAR), see 18 U.S.C. § 1959(a)(3), (6), committed through South Carolina
attempted murder and assault and battery in the first degree, see S.C. Code Ann. §§ 16-3-
29, 16-3-600(c)(1).2
1 The district court previously granted a certificate of appealability on Alston’s sole
claim for relief. See 28 U.S.C. § 2253(c)(1)(B).
2 Because Alston does not address the district court’s determination that these
offenses qualify as crimes of violence under the force clause of § 924(c), he has forfeited
appellate review of the issue. See 4th Cir. R. 34(b) (confining appellate review to issues
raised in informal brief); Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The
informal brief is an important document; under Fourth Circuit rules, our review is limited
to issues preserved in that brief.”). While in rare circumstances, we may overlook this
forfeiture rule in cases in which “a miscarriage of justice would otherwise result,” Suarez-
Valenzuela v. Holder, 714 F.3d 241, 249 (4th Cir. 2013) (internal quotation marks omitted),
we discern no such circumstances on the record before us.

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Identifying the predicate offense supporting a § 924(c) conviction is a fact-intensive
inquiry. See United States v. Ali, 991 F.3d 561, 574 (4th Cir. 2021). While “proof of a
predicate offense is an essential element of a § 924(c) violation,” United States v. Randall,
171 F.3d 195, 205 (4th Cir. 1999), the Government is not required to identify a specific
§ 924(c) predicate offense in the indictment or to separately charge the defendant with the
predicate offense, id. at 208. Nor must the defendant be “convicted—either previously or
contemporaneously—of the predicate offense, so long as the evidence was sufficient to
permit the jury to find the elements of the predicate offense beyond a reasonable doubt.”
United States v. Crawley, __ F.4th __, __, No. 19-7369, 2021 WL 2557790, at *5 (4th Cir.
June 23, 2021) (brackets and internal quotation marks omitted).
“[A] voluntary and intelligent plea of guilty is an admission of all the elements of a
formal criminal charge and . . . all material facts alleged in the charge.” United States v.
Willis, 992 F.2d 489, 490 (4th Cir. 1993) (citation and internal quotation marks omitted);
see United States v. Vann, 660 F.3d 771, 775 (4th Cir. 2011) (en banc) (per curiam for en
banc majority) (“The ‘formal criminal charge’ . . . is nothing more than the least serious of
the disjunctive statutory conduct, not the entirety of the conduct alleged in the
conjunctive.”). Thus, identifying the predicate crime of violence underlying a guilty plea
to a § 924(c) offense requires reviewing the language of the indictment, the plea agreement,
and the defendant’s admissions during the plea colloquy to determine what offense
necessarily supported the conviction. See Crawley, 2021 WL 2557790, at *3-8; In re
Navarro, 931 F.3d 1298, 1302 (11th Cir. 2019).

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Here, neither the indictment nor the plea agreement identified a predicate crime of
violence for the § 924(c) count. However, our review of the record, including the
indictment, plea agreement, and plea colloquy, readily supports the district court’s
conclusion that the predicate crime of violence underlying Alston’s § 924(c) conviction
was the VICAR offense alleged in Count 6. Further, the record amply demonstrates that
this offense was itself supported—at the very least—by aiding and abetting South Carolina
assault and battery in the first degree, as described in the indictment. See Crawley, 2021
WL 2557790, at *5-6; Vann, 660 F.3d at 775.
Alston’s contrary assertion that the predicate crime of violence was conspiracy to
commit murder is unsupported by the relevant portions of the record. While the
presentence report at times identified conspiracy to commit murder as the predicate crime
of violence underlying the § 924(c) offense, any such statement made in the context of the
sentencing proceedings could not alter the essential elements of the offense to which Alston
pled guilty. See Randall, 171 F.3d at 205; Brown v. United States, 942 F.3d 1069, 1074
n.5 (11th Cir. 2019) (explaining that reference to alternative § 924(c) predicate at
sentencing did not alter nature of conviction, as “the trial court had no discretion to
unilaterally change the crime that [the defendant] had pled guilty to”). We therefore find
Alston’s attempt to analogize to United States v. Hodge, 902 F.3d 420 (4th Cir. 2018),
unpersuasive. And, because Alston’s § 924(c) offense was not predicated on a VICAR
offense under 18 U.S.C. § 1959(a)(5), Alston’s reliance on United States v. McCollum, 885
F.3d 300 (4th Cir. 2018), is likewise misplaced.

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Accordingly, we deny Alston’s motion for appointment of counsel and affirm the
district court’s judgment. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED

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