Kibambe Mwendapeke v. MERRICK B. GARLAND , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2383
KIBAMBE MWENDAPEKE ,
Petitioner,
v.
MERRICK B. G ARLAND , Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A078-767-766
____________________
A RGUED SEPTEMBER 14, 2023 — D ECIDED D ECEMBER 7, 2023
____________________
Before R OVNER , HAMILTON, and B RENNAN, Circuit Judges.
BRENNAN, Circuit Judge. Kibambe Mwendapeke, a perma-
nent resident of the United States and a citizen of the Congo,
petitions for review of an order from the Board of Immigra-
tion Appeals dismissing his appeal. The Board affirmed an
immigration judge’s decision that Mwendapeke is removable
from the United States because he was convicted of an

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2 No. 22-2383
aggravated felony crime of violence. Mwendapeke argues
that the Board and the immigration judge erroneously cate-
gorized complicity to robbery in the first degree under Ken-
tucky law as a crime of violence.
We apply the categorical approach to a state conviction to
determine whether it is a “crime of violence” under 18 U.S.C.
§ 16(a). The crime of complicity to commit first degree robbery
subsumes the elements of Kentucky’s first-degree robbery
statute. That statute meets the level of force required by the
Supreme Court and has the required mens rea for a “crime of
violence” under § 16(a). Further, the Kentucky complicity
statute is not overbroad with respect to generic aiding-and-
abetting liability. The immigration judge and the Board cor-
rectly concluded that Mwendapeke’s conviction constituted
an aggravated felony, rendering him removable. We therefore
deny the petition for review.
I. Background
Around midnight on January 8, 2013, in the parking lot of
an apartment complex, Mwendapeke brandished a handgun
and demanded the victim give him everything she had, in-
cluding a cell phone, jacket, and purse, before returning to his
vehicle and fleeing. 1 In September 2016, following a jury trial,
Mwendapeke was convicted of the offense of complicity to
robbery in the first degree under K Y. R EV. STAT . A NN.
§§ 502.020 & 515.020. He was sentenced to ten years’ impris-
onment.
1 Mwendapeke v. Commonwealth, No. 2015-CA-000361-MR, 2016 WL
4709141 (Ky. Ct. App. Sept. 9, 2016).

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No. 22-2383 3
In July 2021, the Department of Homeland Security initi-
ated removal proceedings against Mwendapeke under 8
U.S.C. § 1227(a)(2)(A)(iii), based in part on his Kentucky
conviction. Mwendapeke moved to terminate the removal
proceedings. An immigration judge ruled that the Kentucky
statute under which Mwendapeke was convicted is a categor-
ical match for an aggravated felony crime of violence, subject-
ing him to removal. He appealed, and the Board dismissed on
the same ground. Mwendapeke petitions this court to review
the Board’s decision.2 He argues that his conviction is not
such a categorical match under 8 U.S.C. § 1101(a)(43)(F) and
18 U.S.C. 16(a).
II. Analysis
Whether an offense is a crime of violence is a question of
law subject to de novo review, United States v. Woods, 576 F.3d
400, 408 (7th Cir. 2009), including whether the petitioner’s
conviction constitutes an aggravated felony offense rendering
the petitioner removable. Lopez v. Lynch, 810 F.3d 484, 488 (7th
Cir. 2016). Because here the Board adopts the rationale of the
immigration judge, we review the immigration judge’s deci-
sion. Mabuneza v. Garland, 16 F.4th 1222, 1226 (7th Cir. 2021).
A. Complicity is Not a Separate Crime.
We begin by considering the nature of Mwendapeke’s
criminal liability. Under Kentucky law, complicity is not a
crime of its own. Rather, complicity is a theory of criminal
2 The immigration judge had jurisdiction over Mwendapeke’s re-
moval proceedings under 8 U.S.C. § 1229a(a)(1). The Board of Immigra-
tion Appeals had jurisdiction to hear the appeal under 8 C.F.R.
§ 1003.1(b)(3). This court has jurisdiction to consider this question of law
under 8 U.S.C. § 1252(a)(1) and § 1252(a)(2)(D).

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4 No. 22-2383
responsibility that subsumes each element of an underlying
offense. Futrell v. Commonwealth, 471 S.W.3d 258, 277 (Ky.
2015) (collecting cases). A person convicted of complicity to a
crime “shares the mens rea required of the offense, e.g., intent,
and is therefore guilty of committing the offense as is his co-
complicitor.” Priddy v. Commonwealth, 629 S.W.3d 14, 19 (Ky.
Ct. App. 2021). “Complicity under Kentucky law is not a sep-
arate offense, but instead a theory of liability requiring proof
of each element of the underlying offense.” See United States
v. Abney, 817 Fed. App’x 185, 187 (6th Cir. 2020) (Kentucky
conviction for complicity in first-degree robbery is an ACCA-
predicate offense).
Kentucky Revised Statute “502.020 does not create a new
offense known as complicity. It simply provides that one who
aids, counsels or attempts to aid another in committing an
offense with the intention of facilitating or promoting the
commission of the offense is himself guilty of that offense.”
Commonwealth v. Caswell, 614 S.W.2d 253, 254 (Ky. Ct. App.
1981). “[U]nder our penal code ‘complicity’ is not a separate
crime; rather, it is a means by which a crime may be commit-
ted. Therefore, a more accurate name for the crime of an ac-
complice may be ‘First-degree Robbery by Complicity.’”
Smith v. Commonwealth, 370 S.W.3d 871, 873 n.1 (Ky. 2012).
An individual who is found guilty of complicity to a crime
has the same status as one guilty of the principal offense. Com-
monwealth v. McKenzie, 214 S.W.3d 306, 307 (Ky. 2007). “[T]he
person convicted of complicity is convicted of the underlying
crime and is subject to all the consequences thereof.” Priddy,
629 S.W.3d at 19. “[T]o convict a defendant of guilt by com-
plicity, the jury must find beyond a reasonable doubt that the
[principal] offense was, in fact, committed by the person being

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No. 22-2383 5
aided or abetted by the defendant.” Parks v. Commonwealth,
192 S.W.3d 318, 327 (Ky. 2006).
With this in mind, we reject Mwendapeke’s argument that
Kentucky’s complicity statute is overbroad with respect to ge-
neric aiding-and-abetting liability. In Gonzalez v. Duenas-Alva-
rez, the Supreme Court applied the categorical approach to
analyze California’s “natural and probable consequences”
doctrine underlying California aiding-and-abetting liability,
comparing it to a “generic definition of aiding and abetting.”
United States v. Gamez, 77 F.4th 594, 599 (7th Cir. 2023) (citing
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190‒92 (2007)). “Un-
der a generic definition of aiding and abetting, ‘a person aids
and abets a crime when (in addition to taking the requisite
act) he intends to facilitate that offense’s commission.’”
Gamez, 77 F.4th at 599‒600 (quoting Rosemond v. United States,
572 U.S. 65, 76 (2014)). In Duenas-Alvarez, the Supreme Court
concluded that there was nothing “special” about California’s
aiding-and-abetting liability, so the state’s aiding-and-abet-
ting liability “creates [no] sub-species of the [theft] crime that
falls outside the generic definition of theft” and the theft of-
fense was not overbroad. 549 U.S. at 193‒94.
Here, Mwendapeke argues that Kentucky’s complicity
statute is overbroad because it allows for liability for (1) omis-
sions rather than affirmative acts, and (2) mere verbal encour-
agement or support. Neither argument is persuasive. First,
Kentucky imposes complicity liability for omissions only
where the individual was under a legal duty to act. KY . R EV.
STAT . A NN. § 502.020(1)(c) (allowing a complicity conviction
when the defendant, “[h]aving a legal duty to prevent the
commission of the offense, fails to make a proper effort to do
so.”). It is a “general principle that in criminal law, omission

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6 No. 22-2383
in the face of a legal duty is a type of action.” United States v.
Harrison, 54 F.4th 884, 889 (6th Cir. 2022) (citing 2 W AYNE R.
LA FAVE , SUBSTANTIVE C RIMINAL LAW § 15.4(b) (3d ed. 2022 Up-
date); MODEL P ENAL CODE § 2.01). “This general principle …
is equally applicable when the crime charged is aiding and
abetting.” United States v. Sabhnani, 599 F.3d 215, 237 (2d Cir.
2010). Second, the Supreme Court has stated that “intentional
participation” required for criminal aiding-and-abetting lia-
bility “can come in many forms, including abetting, inducing,
encouraging, soliciting, or advising the commission of the of-
fense, such as through words of encouragement or driving the
getaway car.” Twitter, Inc. v. Taamneh, 598 U.S. 471, 490 (2023)
(emphasis added). Consequently, Kentucky’s complicity stat-
ute is a categorical match for generic aiding-and-abetting lia-
bility.
B. Robbery in the First Degree is a Categorical Match.
Next, we apply the categorical approach to decide if the
underlying offense, Kentucky’s first-degree robbery statute,
§ 515.020, is a categorical match to 18 U.S.C. § 16(a) such that
Mwendapeke is removable. “[T]o determine whether an al-
ien’s conviction qualifies as an aggravated felony under
[§ 16(a)], we ‘employ a categorical approach by looking to the
statute … of conviction, rather than to the specific facts under-
lying the crime.’” Esquivel-Quintana v. Sessions, 581 U.S. 385,
389 (2017). The categorical approach requires courts to assess
the minimum conduct required for a conviction under the
state statutes in question. If that conduct would not be suffi-
cient for conviction under the generic federal definitions of
that crime, the statute is overbroad. See id.
Kentucky Revised Statute § 515.020 provides that a person
“is guilty of robbery in the first degree when, in the course of

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No. 22-2383 7
committing theft, he or she uses or threatens the immediate
use of physical force upon another person with intent to ac-
complish the theft… .”3
Under the Immigration and Nationality Act, any “alien
who is convicted of an aggravated felony at any time after ad-
mission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). Per that
statute an “aggravated felony” includes “a crime of violence,
as defined by 18 U.S.C.A. § 16, … for which the term of im-
prisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F).
“[C]rime of violence” is defined as “an offense that has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another.” 18 U.S.C.
§ 16(a). This is the generic federal definition to which we com-
pare § 515.020.
Both the state statute of first-degree robbery, § 515.020,
and the federal definition of that crime under 18 U.S.C. § 16(a),
include the generic elements of force and mens rea. Therefore,
to be categorized as a “crime of violence” satisfying 18 U.S.C.
§ 16(a), § 515.020 must (1) meet the level of force required by
3 Section 515.020 also provides that a defendant must “[c]ause[] phys-
ical injury to any person who is not a participant in the crime; or [i]s armed
with a deadly weapon; or [u]ses or threatens the immediate use of a dan-
gerous instrument upon any person who is not a participant in the crime.”
Each of these additional requirements narrow the statute’s generic physi-
cal force or intent elements, so they do not alter our analysis under the
categorical approach. See Descamps v. United States, 570 U.S. 254, 261 (2013)
(“If the relevant statute has the same elements as the “generic” ACCA
crime, then the prior conviction can serve as an ACCA predicate; so too if
the statute defines the crime more narrowly, because anyone convicted
under that law is “necessarily ... guilty of all the [generic crime's] ele-
ments.”) (citing Taylor v. United States, 495 U.S. 575, 599 (1990)).

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8 No. 22-2383
the Supreme Court and (2) have the requisite mens rea for a
“crime of violence.”
1. Force
“[P]hysical force” under 18 U.S.C. § 16(a) means “violent
force—i.e., force capable of causing physical pain or injury to
another person.” Johnson v. United States, 559 U.S. 133, 134
(2010). This “does not require any particular degree of likeli-
hood or probability that the force used will cause physical
pain or injury; only potentiality.” Stokeling v. United States, 139
S. Ct. 544, 554 (2019).4 See United States v. Chagoya-Morales, 859
F.3d 411, 421 (7th Cir. 2017) (describing Johnson’s “threshold”
as “not a high one” because it “did not hold that ‘physical
force’ requires ‘a level of force likely to cause serious injury,
or traumatic injury,’” but rather, held it “requires only force
capable of causing physical pain or injury to another person”).
Therefore, “an offense per se satisfies [] Johnson’s definition of
force if it involves the offender’s overcoming the victim’s re-
sistance.” Johnson v. United States, 24 F.4th 1110, 1120 (7th Cir.
2022).
Kentucky courts hold that the level of force required for
robbery under § 515.020 is “[a]ny force which is sufficient to
take the property against the owner’s will.” Boger v. Common-
wealth, 2005 WL 1704079, *2 (Ky. Ct. App. Jan. 11, 2006) (quot-
ing Commonwealth v. Davis, 66 S.W. 27, 27 (Ky. 1902)). 5 This
4 Johnson and Stokeling both addressed the Armed Career Criminal
Act, 18 U.S.C. § 924(e)(2)(B)(i), which is nearly identical to 18 U.S.C.
§ 16(a). For our analysis we treat them as the same.
5 Davis referred to Blackstone’s definition of robbery, which states:
“the felonious and forcible taking from the person of another of goods or

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No. 22-2383 9
interpretation fits within the Supreme Court’s explanation of
force sufficient for a “crime of violence” under 18 U.S.C.
§ 16(a). The Sixth Circuit reached the same conclusion when
it held that “second-degree robbery in Kentucky requires a
sufficient level of force to satisfy the elements clause[].” United
States v. Williams, 39 F.4th 342, 348 (6th Cir. 2022). This is be-
cause “robbery occurs when the defendant steals using force
sufficient to overcome the victim’s will and does not encom-
pass taking without the victim’s awareness or without physi-
cal force.” Id. Although not binding, the Sixth Circuit’s ruling
is persuasive here. See, e.g., Shepherd v. Krueger, 911 F.3d 861,
863 (7th Cir. 2018) (“The Sixth Circuit held recently that Ken-
tucky second-degree burglary qualifies as a predicate offense
for an ACCA enhancement. … Our colleagues’ statutory in-
terpretation and conclusion are persuasive.”).
2. Mens Rea
The Supreme Court has provided guidance when consid-
ering the mens rea for a “crime of violence” aggravated felony.
“Offenses with a mens rea of recklessness do not qualify as vi-
olent felonies … .” Borden v. United States, 141 S. Ct. 1817, 1834
(2021). Violent felonies “require … the active employment of
force against another person.” Id. “[T]he ‘use … of physical
force against the person or property of another’—most natu-
rally suggests a higher degree of intent than negligent or
money of any value by violence or by putting him in fear.” Although Davis
was decided before Kentucky adopted its current penal code, Boger found
this definition applicable to the current Kentucky definition of robbery.
Further, the court in Boger was “persuaded to continue to follow the prec-
edent set in Davis as other jurisdictions have more recently analyzed this
issue and have made similar findings.” Id. at *2 n.7 (citing see, e.g., United
States v. Rodriguez, 925 F.2d 1049, 1052 (7th Cir.1991)).

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10 No. 22-2383
merely accidental conduct.” Leocal v. Ashcroft, 543 U.S. 1, 9
(2004).
Kentucky’s first-degree robbery offense, § 515.020, has the
requisite mens rea for a “crime of violence” under 18 U.S.C.
§ 16(a). The plain language of the Kentucky statute states that
the defendant’s use or threatened use of physical force upon
another person must be committed “with intent to accomplish
the theft.” KY. R EV. STAT . A NN. § 515.020. The preposition
“with” directly modifies the force element of the statute. So,
the most natural reading of the statute is that the specific “in-
tent to accomplish the theft” is the particular mental state un-
der which the defendant uses or threatens to use force against
another person. See Nielsen v. Preap, 139 S. Ct. 954, 956 (2019)
(“[W]ords are to be given the meaning that proper grammar
and usage would assign them.”) (quoting A. SCALIA & B.
G ARNER , READING LAW: T HE INTERPRETATION OF LEGAL T EXTS
140 (2012)).
The Sixth Circuit has reached a similar conclusion. See Wil-
liams, 39 F.4th at 348. There, the defendant made the same ar-
gument as Mwendapeke: “The specific intent requirement
only applies to the theft and not to the use of force, which …
can be done recklessly.” Id. The Sixth Circuit rejected this ar-
gument, based on statutory commentary and Kentucky case
law. Id. at 348−50. The commentary to Kentucky’s robbery
statutes states, “an offender must have intended, with his use
or threatened use of physical force, to accomplish a theft.” Id.
(citing K Y. R EV. STAT . A NN. § 515.020, cmt. (1974)). And two
Kentucky Supreme Court cases interpreted the “intent to ac-
complish the theft” mens rea of KY. R EV. STAT . A NN. § 515.020
as necessarily accompanying the defendant’s use or threat-
ened use of force. See Hobson v. Commonwealth, 306 S.W.3d 478,

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No. 22-2383 11
482−83 (Ky. 2010); Slaven v. Commonwealth, 962 S.W.2d 845,
857 (Ky. 1997). 6 So, the Sixth Circuit ruled that “[g]iven the
statute’s plain language, supported by the commentary and
caselaw, Kentucky second-degree robbery requires that an in-
dividual use force with the specific intent to accomplish theft.
Therefore, it is not a crime that can be committed with a mens
rea of recklessness and is not precluded as [a “crime of vio-
lence”] under Borden.” Williams, 39 F.4th at 349–50.
3. Taylor Requirements: Communicative Threats
Mwendapeke claims the Kentucky robbery statute fails to
satisfy the standards set in United States v. Taylor, 142 S. Ct.
2015 (2022). Taylor separated communicative threats, which
are active and intended to threaten, from abstract or atmos-
pheric threats, which are based on the nature of the crime it-
self. Id. at 2022−23. The Supreme Court held that threats must
be active and intentional to fall under the definition of “crime
of violence.” Id. This is because the phrase “‘threatened use of
physical force against the person or property of another’ [re-
quires] a communicated threat … .” Id. Such an interpretation
“fits with” the remainder of the “crime of violence” definition,
which “[p]lainly … requires … that the defendant took spe-
cific action against specific persons or their property.” Id. at
2023. Further, the Court in Taylor warned against finding that
a threat is present based on the nature of the crime. Id.
Mwendapeke cites two Kentucky cases he says demon-
strate that the state’s robbery statute fails to satisfy Taylor.
6 We are bound by Kentucky’s interpretation of its own laws. See John-
son v. Fankell, 520 U.S. 911, 916 (1997) (“Neither this Court nor any other
federal tribunal has any authority to place a construction on a state statute
different from the one rendered by the highest court of the State.”).

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12 No. 22-2383
Lewis v. Commonwealth, 399 S.W.3d 795, 796−97 (Ky. Ct. App.
2013), held that “the threat of physical force … c[ould] be im-
plied by a defendant’s conduct,” irrespective of whether the
defendant intended to communicate the threat to the victim.
And Tunstull v. Commonwealth, 337 S.W.3d 576, 583 (Ky. 2011),
held that physical threats can be implied from the nature of
the crime itself. To Mwendapeke, Lewis and Tunstull consid-
ered abstract or atmospheric, rather than communicative
threats.
Lewis and Tunstull do not hold that the robbery statute
includes abstract and predictive threats to the overall commu-
nity. Rather, those decisions show that Kentucky robbery of-
fenses cover both express and implied threats, but those
threats must be communicated by the defendant towards a
specific person or persons who are the target of the defend-
ant’s theft. Lewis, 399 S.W.3d at 797; Tunstull, 337 S.W.3d at
583.
This aligns with the plain language of the Kentucky stat-
ute under which only threats directed toward another specific
person are covered, as that language requires proof that the
defendant “threatens the immediate use of physical force
upon another person.” KY. R EV. STAT . A NN. § 515.020 (empha-
sis added). This reading is reinforced by Kentucky’s defini-
tion of “physical force,” which again instructs that “force [be]
used upon or directed toward the body of another.” KY. R EV.
STAT . A NN. § 515.010 (emphasis added). Therefore, the de-
fendant must direct his action at, or target, another individ-
ual. The robbery statute does not cover an abstract threat.

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No. 22-2383 13
C. Complicity to Robbery in the First Degree is a Cate-
gorical Match.
Now to the question on which this case turns: whether
conviction for complicity to robbery in the first degree quali-
fies as an aggravated felony under the categorical approach.
Mwendapeke claims that § 502.020 does not categorically con-
stitute a “crime of violence” aggravated felony under 18
U.S.C. § 16(a). His conviction for this crime, he believes,
should not render him removable from the United States.
“If the underlying crime has the necessary physical force
element and a conviction for complicity requires proof of the
underlying crime, then the complicity conviction necessarily
includes the physical force element.” United States v. Johnson,
933 F.3d 540, 547 (6th Cir. 2019). As we decided above, the
Board and the immigration judge correctly ruled that Ken-
tucky’s first-degree robbery statute meets the level of force,
supra Part II, B.1, and the requisite mens rea, supra Part II, B.2,
for a “crime of violence” under 18 U.S.C. § 16(a). It follows
they properly concluded that Kentucky’s complicity to first-
degree robbery statute meets the same requirements and cat-
egorically matches 18 U.S.C. § 16(a).
Mwendapeke offers various arguments for why the Board
and the immigration judge erred in their rulings:
Defendant-Specific, Active Force. A crime of violence “in-
volves the ‘use … of physical force’ against another’s person
or property.” Leocal, 543 U.S. at 2. That “requires active em-
ployment.” Id. Mwendapeke points to Taylor in support of his
claim that 18 U.S.C. § 16(a) requires that the defendant em-
ployed the active force. He argues that § 502.020(1) does not
satisfy this active employment requirement because under

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14 No. 22-2383
Kentucky complicity liability a person may be responsible for
a crime he has not personally carried out.7
According to Mwendapeke, under Taylor the categorical
approach requires using a defendant-specific statutory analy-
sis, which he says fails here. While the Supreme Court
acknowledges that “many who commit the crime of at-
tempted Hobbs Act robbery do use, attempt to use, or
threaten to use force,” it concluded that “some cases are not all
cases, and the government’s problem is that no element of at-
tempted Hobbs Act robbery requires the government to prove
beyond a reasonable doubt that the defendant used, at-
tempted to use, or even threatened to use force.” Taylor, 142 S.
Ct. at 2022.
But in Taylor the Court held that attempted Hobbs Act rob-
bery is not a “crime of violence” because the inchoate crime
of attempt only requires proof that the defendant take a “sub-
stantial step” toward committing a Hobbs Act robbery. That
“substantial step” element does not necessarily require the
use, attempted use, or threatened use of force against another
person. 142 S. Ct. at 2020−26 (2022). As explained, § 502.020(1)
deems the accomplice defendant to have committed every el-
ement of the completed principal offense, including its phys-
ical force element. In contrast, attempted Hobbs Act robbery
is an inchoate offense with separate elements that do not
7 For example, Mwendapeke relies on Quisenberry v. Commonwealth,
336 S.W.3d 19, 36 (Ky. 2011) (“[T]he accused need not have … actually
participated in any other act of force or violence; it is sufficient that he
came and went with the robbers, was present when the robbery was com-
mitted, and acquiesced.”), and Young v. Commonwealth, 426 S.W.3d 577,
582 (Ky. 2014) (regarding complicity through verbal encouragement or
support).

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No. 22-2383 15
require the underlying offense to be completed. Therefore, the
statute being analyzed in Taylor is distinguishable from the
Kentucky statute at hand.
Binding Precedent. As noted above, Mwendapeke claims
that § 502.020(1) does not satisfy the Supreme Court’s active
employment requirement. Yet, we have rejected a substan-
tially similar argument, concluding that Taylor is inapposite
to convictions based on accomplice liability. United States v.
Worthen, 60 F.4th 1066, 1069 (7th Cir. 2023). Mwendapeke con-
cedes that Worthen forecloses his argument based on Taylor.
The defendant in Worthen contended that his conviction
for aiding and abetting a Hobbs Act robbery was not a “crime
of violence” because “a defendant can aid and abet a Hobbs
Act robbery without personally using force.” Id. at 1067; 1069.
Rejecting this argument, we ruled that “aiding and abetting
under [18 U.S.C.] § 2 is ‘not a separate federal crime’ from the
underlying offense, but is instead an alternative theory of lia-
bility for the commission of the principal offense.” Id. at
1069−70. We explained that “convicting an aider or abettor
first requires showing that the underlying crime … ‘was actu-
ally committed,’” therefore, “an aider and abettor of a Hobbs
Act robbery necessarily commits all the elements of a princi-
pal.” Id. “And because the principal offense of Hobbs Act rob-
bery satisfies the force clause … aiding and abetting a Hobbs
Act robbery qualifies as a crime of violence too.” Id. at 1070.
Complicity under Kentucky law, like aiding and abetting
under federal law, requires proof that the underlying crime
was actually committed. This court’s reasoning in Worthen ap-
plies equally to this case. “That is what it means to say that
the law does not distinguish between primary violators and
aiders and abettors.” Id.

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16 No. 22-2383
Plain Language. Even without Worthen as precedent,
Mwendapeke’s “defendant-specific manner” claim does not
comport with the plain language of the statutory definition of
“crime of violence” in 18 U.S.C. § 16(a). That definition does
not require proof that the defendant himself used, attempted
to use, or threatened to use physical force. Rather, it only re-
quires that the “offense … has as an element” such conduct.
Id. “[T]he force need not be exerted by the defendant. All the
elements clause requires is that the offense—here, complicity
to commit [first degree robbery]—necessarily involve the use
of force.” Harrison, 54 F.4th at 895 (Cole, J., concurring); see also
id. at 890.
The statutory language of the aggravated-felony ground
of removal in 8 U.S.C. § 1227(a)(2)(A)(iii) also does not sup-
port Mwendapeke’s suggested method for conducting the
categorical approach. That statutory subsection requires that
Mwendapeke be “convicted of an aggravated felony,” which
means deciding whether he has been convicted of “an offense
that has an element the use, attempted use, or threatened use
of physical force against the person or property of another”
for which the term of imprisonment was at least one year. 8
U.S.C. § 1227(a)(2)(A)(iii); 18 U.S.C. § 16(a); 8 U.S.C.
§ 1101(a)(43)(F).
The focus of the “crime of violence” categorical inquiry is
on whether the convicted offense includes “the use,
attempted use, or threatened use of physical force” as an ele-
ment, not on whether the individual who is charged with re-
moval was convicted of a crime in which he personally used,
attempted to use, or threatened to use physical force against
the person or property of another. See Harrison, 54 F.4th 890.

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No. 22-2383 17
III. Conclusion
Kentucky’s complicity to first-degree robbery statute, KY.
R EV. STAT . A NN. § 502.020(1), is a categorical match to a “crime
of violenceʺ aggravated felony under 18 U.S.C. § 16(a). So, the
immigration judge and the Board of Immigration Appeals
correctly decided that Mwendapeke’s conviction for that
crime rendered him subject to removal.
For these reasons, we DENY the petition for review.

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