United States of America v. Dameia O. Smith, a/k/a Omar, a/k/a D

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 24-2020
______
UNITED STATES OF AMERICA
v.
DAMEIA O. SMITH, a/k/a Omar, a/k/a D,
Appellant
______
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2:99-cr-00445-001)
District Judge: Honorable Gerald A. McHugh
______
Argued October 1, 2025
Before: CHAGARES, Chief Judge, BIBAS, and FISHER,
Circuit Judges.
(Filed: February 3, 2026)
Jessica A. Ettinger ARGUED
Lisa Evans Lewis, Chief Federal Defender
Federal Community Defender Office for the Eastern District
of Pennsylvania

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601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Robert A. Zauzmer ARGUED
Jacqueline C. Romero, United States Attorney
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
This appeal requires us to decide whether, under the
categorical approach, attempted murder of a federal witness is
a “crime of violence” as defined in 18 U.S.C. § 924(c). We
conclude that it is.
More than twenty years ago, a jury convicted Dameia
Smith of both solicitation and attempted murder of a federal
witness. The jury also convicted him of using or carrying a
firearm “during and in relation to” a “crime of violence,” 18
U.S.C. § 924(c)(1)(A), which triggered a significant sentence
enhancement that culminated in forty years’ imprisonment.
Throughout the following two-plus decades, the Supreme
Court narrowed the scope of predicate offenses that qualify as
crimes of violence. Based on those intervening decisions,
Smith argues that his § 924(c) conviction should be vacated
either because attempted murder of a federal witness is not a

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“crime of violence” or, alternatively, because the jury could
have convicted based only on the invalid predicate of
solicitation. The District Court denied relief.
If “the categorical approach ends up in the right place”
only “[o]nce in a blue moon,” then this is one of the “rare
night[s] when the blue moon has risen.” United States v. Vines,
134 F.4th 730, 732–33 (3d Cir. 2025). The categorical
approach leads to the common-sense conclusion that attempted
murder of a federal witness is a crime of violence because the
government must necessarily prove that the defendant at least
attempted to use physical force. Additionally, there is not a
reasonable probability that Smith’s § 924(c) conviction is
based only on the invalid solicitation predicate. Therefore, we
will affirm.
I.
A.
In September 1998, Smith, an IRS tax examining clerk,
robbed a restaurant employee as she attempted to deposit the
restaurant’s money at a bank. Smith, who knew the victim
through his girlfriend, threatened the victim with a handgun
and demanded the money. He was charged with robbery two
weeks later and, after learning the victim was cooperating with
authorities, told acquaintances that “something might happen
to her” if she identified him in court. App. 116.
In October 1998, Smith unlawfully accessed the IRS
database to obtain the victim’s home address and other
personal information. In January 1999, Smith told a girlfriend
that “he was going to kill” the victim before she could testify.
App. 117. Accompanied by a different friend, Smith drove
with a firearm to the victim’s home. After explaining that the
person who lived there was a witness against him in a robbery
case, Smith handed the gun to the friend and repeatedly asked

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him to enter the house and kill the victim. The friend refused,
but Smith pressured him into committing another crime—bank
robbery. They failed to complete the bank robbery, and Smith’s
friend soon began cooperating with the authorities, leading to
Smith’s arrest in February 1999.
B.
Smith went to trial on six counts: (1) Hobbs Act
robbery, 18 U.S.C. § 1951(a); (2) using a firearm “during and
in relation to” a “crime of violence,” 18 U.S.C. § 924(c),
predicated on Count One; (3) unauthorized access of a
computer in furtherance of a criminal or tortious act, 18 U.S.C.
§ 1030; (4) solicitation to commit a “crime of violence,” 18
U.S.C. § 373, predicated on murder of a federal witness; (5)
attempted murder of a federal witness, 18 U.S.C.
§ 1512(a)(1)(C); and (6) using a firearm “during and in relation
to” a “crime of violence,” 18 U.S.C. § 924(c), predicated on
Count Four or Count Five. A jury convicted Smith on Count
Three, unauthorized access of a computer, but it was unable to
reach a verdict on the other counts.
The Government retried Smith on the remaining five
counts in May 2000, and the jury returned a conviction on each
count. The jury used a general verdict form where it simply
marked either “guilty” or “not guilty” next to a brief
description of each count. App. 102. The form described the
Count Six firearm charge as “[u]sing or carrying a firearm
during and in relation to the crimes charged in Count Four
[solicitation] or Count Five [attempted murder].” Id. The trial
judge instructed the jury that it could return a § 924(c) guilty
verdict predicated on either count. The jury did not specify
whether it relied on solicitation or attempted murder as the
predicate crime of violence for the Count Six § 924(c)
conviction, and the Count Six conviction alone subjected

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Smith to a mandatory consecutive sentence of twenty-five
years in prison. In August 2000, the court imposed a total
prison term of 481 months (more than forty years). After our
Court affirmed, Smith moved for relief under 28 U.S.C.
§ 2255, which the District Court denied in December 2002.
This appeal concerns the validity of Smith’s conviction
under Count Six. At the time of the conviction, § 924(c)
defined a “crime of violence” under two different provisions.
First, under the “elements clause,” a crime of violence “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.
§ 924(c)(3)(A). Second, under the “residual clause,” a crime of
violence “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)(B).
In 2019, the Supreme Court held that the residual clause
in § 924(c)(3)(B) is unconstitutionally vague. United States v.
Davis, 588 U.S. 445, 448 (2019). In light of Davis, we granted
Smith leave to file a second § 2255 motion and remanded the
case for further proceedings. The District Court denied relief
and declined to issue a certificate of appealability. It held that
attempted murder of a federal witness is a crime of violence
under the elements clause.
Soon thereafter, we stayed the deadline for Smith to
move for a certificate of appealability pending the outcome of
the Supreme Court’s decision in United States v. Taylor, 596
U.S. 845 (2022). After the Court held in Taylor that attempted
Hobbs Act robbery does not qualify as a crime of violence as
defined by the elements clause, 596 U.S. at 852, Smith moved
for a certificate of appealability. In August 2022, we granted a
certificate of appealability, vacated the District Court’s earlier
order, and remanded for further consideration in light of

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Taylor.
In May 2024, the District Court again denied relief,
holding that Taylor did not impact its previous holding that
attempted murder of a federal witness is a crime of violence as
defined by the elements clause. This appeal followed. We held
it c.a.v. pending the Supreme Court’s decision in Delligatti v.
United States, 604 U.S. 423 (2025), and our decision in United
States v. Vines, 134 F.4th 730 (3d Cir. 2025). It is now ripe for
resolution.
II.
The District Court had jurisdiction under 18 U.S.C.
§ 3231 (offenses against the laws of the United States) and 28
U.S.C. § 2255 (collateral petition). We have jurisdiction under
28 U.S.C. § 2255(d) (final judgment on collateral petition).
Whether a conviction qualifies as a predicate offense is
a question of law subject to de novo review. See United States
v. Peppers, 899 F.3d 211, 219–20 (3d Cir. 2018). “In reviewing
jury instructions, we consider the legal standard stated in the
instructions de novo” and review “the specific wording of the
instructions” for abuse of discretion. United States v. Boone,
458 F.3d 321, 326 (3d Cir. 2006).
III.
A.
Under the elements clause, a crime of violence is a
felony 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. § 924(c)(3)(A). We must apply “the
much-maligned categorical approach” to decide whether
Smith’s Count Five conviction of attempted murder of a
federal witness, 18 U.S.C. § 1512(a)(1)(C), validly serves as a
predicate crime of violence under the elements clause. Vines,

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134 F.4th at 733. The categorical approach “precludes . . . an
inquiry into how any particular defendant may commit the
crime.” Taylor, 596 U.S. at 850. Rather, the court should
“identify ‘the least culpable conduct hypothetically necessary
to sustain a conviction under the statute’ and presume the
defendant engaged in that conduct when committing the prior
offense.” United States v. Harris, 68 F.4th 140, 145 (3d Cir.
2023) (quoting Hernandez-Cruz v. Att’y Gen., 764 F.3d 281,
285 (3d Cir. 2014)). “The only relevant question is whether the
federal felony at issue always requires the government to
prove—beyond a reasonable doubt, as an element of its case—
the use, attempted use, or threatened use of force.” Taylor, 596
U.S. at 850. Therefore, we are required to consider only one
question: whether a conviction for attempted murder of a
federal witness requires, in every instance, proof of the “use,
attempted use, or threatened use of physical force.” 18 U.S.C.
§ 924(c)(3)(A).
1.
To obtain a conviction for attempted murder of a federal
witness, the government must prove several elements, but only
the first element is at issue here: that the defendant attempted
to kill a person. 18 U.S.C. § 1512(a)(1); see also United States
v. Tyler, 956 F.3d 116, 123 (3d Cir. 2020). The parties agree
that an attempted killing is committed by someone who (1) has
an intent to kill another and (2) takes a substantial step toward
that end. Appellant’s Br. 22; Appellee’s Br. 20; see also
Braxton v. United States, 500 U.S. 344, 349 (1991) (attempted
killing is a “substantial step” together with “the requisite mens
rea”).
The parties first disagree about whether Taylor alone is
dispositive. Taylor holds that attempted Hobbs Act robbery is
not a crime of violence under § 924(c). 596 U.S. at 852. The

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Court noted that a completed Hobbs Act robbery is an
“unlawful taking or obtaining of personal property from the
person . . . of another, against his will, by means of actual or
threatened force.” Id. at 850 (quoting 18 U.S.C. § 1951(b)). For
attempted Hobbs Act robbery, then, “the government must
prove two things: (1) The defendant intended to unlawfully
take or obtain personal property by means of actual or
threatened force, and (2) he completed a ‘substantial step’
toward that end.” Id. at 851 (quoting United States v. Resendiz-
Ponce, 549 U.S. 102, 107 (2007)). The Court explained that
proving the “substantial step” element of attempted Hobbs Act
robbery “does not require the government to prove that the
defendant used, attempted to use, or even threatened to use
force against another person or his property.” Id.
The Court offered a helpful hypothetical: “Adam” tells
a friend he is planning to rob a store. Id. at 851–52. Adam then
takes “substantial step[s]” toward committing the robbery
when he buys a ski mask, plans an escape route, and recruits a
getaway driver. Id. at 852. “Finally, he drafts a note—‘Your
money or your life’—that he plans to pass to the cashier. The
note is a bluff, but Adam hopes its implication that he is armed
and dangerous will elicit a compliant response.” Id. Adam’s
friend tips off the police, who arrest him as he enters the store.
Id. While this is no doubt enough to convict Adam of attempted
Hobbs Act robbery, he did not commit a crime of violence
because he “did not ‘use’ physical force. He did not ‘attempt’
to use such force—his note was a bluff and never delivered.
And he never even got to the point of threatening the use of
force against anyone or anything.” Id.
Smith argues that Taylor’s holding extends to other
attempt-based offenses that have a common law analogue and,
therefore, that attempted murder of a federal witness is not a
crime of violence. He says that attempt crimes, including

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attempted murder, require only (1) intent and (2) a substantial
step and that a substantial step need not categorically involve
the use, attempted use, or threatened use of force. Conversely,
the Government argues that Taylor is distinguishable. Because
one can complete a Hobbs Act robbery by threatening to use
force, the Government contends that one can complete
attempted Hobbs Act robbery—at issue in Taylor—by “an
attempt to threaten force,” which is not included under the
elements clause of § 924(c). Appellee’s Br. 19. The
Government notes that murder of a federal witness, unlike
Hobbs Act robbery, cannot be completed by threatening the
use of force, so attempted murder of a federal witness cannot
be completed by an attempt to threaten force.
The parties disagree about the application of the
following sentence from Taylor: “[W]hatever a substantial step
requires, it does not require the government to prove that the
defendant used, attempted to use, or even threatened to use
force against another person or his property.” 596 U.S. at 851.
Smith argues that this sentence applies broadly and resolves
this case because the Government can secure a conviction for
attempted murder of a federal witness by proving that the
defendant took non-violent substantial steps. But the
Government says this sentence from Taylor is “cherry-picked”
and lacks important context. Appellee’s Br. 25–26 (quoting
United States v. Lassiter, 96 F.4th 629, 638 (4th Cir. 2024)).
The Government is correct. First, the sentence is in a
paragraph discussing the elements of attempted Hobbs Act
robbery. Taylor, 596 U.S. at 851. And neither that paragraph
nor any other part of the opinion discusses common law-
derived attempt crimes in general. Second, like the
hypothetical involving the bank robber Adam and his
threatening note, the Court’s subsequent analysis focused
almost exclusively on the meaning of “threat” in the elements

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clause. Taylor, 596 U.S. at 851–52, 854–57. That analysis is
inapplicable in this case because the statute at issue here
involves only “kill[ing] or attempt[ing] to kill another person,”
not threatening to kill another person. 18 U.S.C.
§ 1512(a)(1)(C). Third, the Supreme Court has declined to
decide whether Taylor extends to attempted murder, let alone
all common law-based attempt offenses. See Delligatti, 604
U.S. at 428 nn.1, 2 (2025).
For these reasons, we decline to read Taylor as holding
that all common law-based attempt offenses are not crimes of
violence. Rather, Taylor’s holding is limited to attempted
Hobbs Act robbery and, at most, extends to other crimes where
a conviction can be obtained by a showing of an attempt to
threaten force. A conviction for attempted murder of a federal
witness cannot be obtained by a showing of an attempt to
threaten force. Therefore, we must independently apply the
categorical approach to determine if it is a crime of violence.
2.
Under the categorical approach, we must consider
whether a conviction for attempted murder of a federal witness
requires in every instance proof of the “use, attempted use, or
threatened use of physical force.” 18 U.S.C. § 924(c)(3)(A);
see also Taylor, 596 U.S. at 850. The core dispute between the
parties is what conduct constitutes “attempted use . . . of
physical force” and whether a defendant can attempt to murder
a federal witness without attempting to use force. 18 U.S.C.
§ 924(c)(3)(A). The parties provide different interpretations of
what “attempt” means in the context of the elements clause.
Smith argues that attempted use of physical force
includes only the “unsuccessful active employment of violent
force,” Appellant’s Br. 30, while the use of physical force
requires “the successful active employment of violent force,”

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id. at 34. Although he doesn’t provide any examples, Smith
appears to suggest that an “unsuccessful active employment of
violent force”—or attempted use of physical force—is
something like firing a gun but missing the target or driving a
car at someone but failing to make contact. See D. Ct. Dkt. 186
at 3 (arguing that one who sets out to run someone over with a
car but gets waylaid before beginning to drive the car at the
intended victim does not even “attempt” to use physical force).
Because a conviction for attempted murder can be obtained
through a showing of something less than the unsuccessful
active employment of violent force—such as by showing that
the defendant solicited someone else to do the killing—Smith
concludes that attempted murder of a federal witness is not a
crime of violence.
At points, Smith implies that use of physical force
requires direct contact between the defendant and the victim.
This is incorrect. As Delligatti makes clear, someone who uses
force indirectly, or even by omission, has made use of physical
force under § 924(c). 604 U.S. at 429–34. Regardless, Smith
offers no cases suggesting that “attempt” in § 924(c) means an
“unsuccessful” use of force. Citing dictionary definitions, he
says that his definition of “attempt” derives from its “ordinary,
plain meaning.” Appellant’s Br. 34. But courts have rejected
this argument, and for good reason: it would reduce the
“attempted use” portion of the elements clause to a near or total
nullity, and it would eliminate from the crime-of-violence
category most—or perhaps all—attempted violence crimes
under the categorical approach. See United States v. Hunt, 99
F.4th 161, 177 (4th Cir. 2024).
According to Smith, a predicate offense can result in a
§ 924(c) conviction under the “attempted use” portion of the
clause only if the prosecution must prove that a defendant (1)
employed the use of force but (2) failed to commit the

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completed offense with that use. However, criminal laws are
rarely written so narrowly. Rather than expressly prohibit
nearly completed offenses, they typically make it illegal to
engage in a broader range of conduct while intending to
complete an offense. In other words, Smith’s definition
reduces the “attempted use” portion of the elements clause to a
near or total nullity. Hunt, 99 F.4th at 177. “We should not
lightly conclude that Congress enacted a self-defeating
statute.” Quarles v. United States, 587 U.S. 645, 654 (2019).
Additionally, Smith’s definition fails to capture nearly
all attempt offenses. Our circuit “follow[s] the Model Penal
Code’s framework for attempt liability.” United States v.
Daniels, 915 F.3d 148, 161 (3d Cir. 2019). That framework
“requires intent and a substantial step towards . . . the
commission of the crime.” Id. (quoting United States v. Glass,
904 F.3d 319, 323 n.3 (3d Cir. 2018)). “[A] substantial step is
conduct that is strongly corroborative of the firmness of a
defendant’s criminal intent.” United States v. Cicco, 10 F.3d
980, 985 (3d Cir. 1993). The Model Penal Code lists as
possible substantial steps many probative, corroborative acts
that do not involve the use of physical force (or the
unsuccessful active employment of violent force, as Smith
would describe it), such as “lying in wait,” “reconnoitering,”
and “soliciting an innocent agent to engage in conduct
constituting an element of the crime.” Model Penal Code
§ 5.01(2)(a), (c), (g). “Thus, if the phrase ‘attempted use of
force’ refers only to acts such as discharging a firearm” or
driving a car at someone, then many attempt offenses would
fall outside the crime-of-violence category, and that “cannot be
what Congress intended.” Hunt, 99 F.4th at 177.
The Government offers the more cogent interpretation
of the “attempted use . . . of physical force” language. 18
U.S.C. § 924(c)(3)(A). According to the Government, the

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phrase’s meaning originates from the common law of attempt
crimes, so an “attempt to use force [is] commonly understood
as a substantial step toward using force.” Appellee’s Br. 20. It
argues that killing someone can only be accomplished by using
physical force; an intent to kill someone therefore requires an
intent to use physical force; and any defendant convicted of
attempted murder must have completed a substantial step
toward murder and, therefore, toward using physical force.
And because attempted murder of a federal witness always
requires a showing of an intent to use physical force and a
substantial step toward that end, the Government concludes
that it is a crime of violence. We agree with much of the
Government’s analysis, as well as its overall conclusion, as we
now explain.
“Congress ‘is understood to legislate against a
background of common-law . . . principles.’” Samantar v.
Yousuf, 560 U.S. 305, 320 n.13 (2010) (quoting Astoria Fed.
Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991)). For
example, the Supreme Court has held that the phrase “physical
force” in the ACCA’s nearly identical elements clause derives
its meaning from “the common law of robbery.” Stokeling v.
United States, 586 U.S. 73, 79 (2019); 18 U.S.C.
§ 924(e)(2)(B)(i) (ACCA elements clause, providing that “the
term ‘violent felony’ . . . has as an element the use, attempted
use, or threatened use of physical force against the person of
another”). This is because, by the time Congress wrote the
ACCA, “the level of force or violence needed at common law
was . . . well established.” Id. (citation modified). Likewise,
Congress defined crimes of violence in § 924(c) against a
background of common-law principles. So, the “attempted
use” terminology in the elements clause—part of a criminal
statute—derives its meaning from the well-established
common-law definition of criminal attempt. Therefore, the

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“attempted use . . . of physical force” is (1) having an intent to
use physical force and (2) taking a substantial step toward
using physical force. 18 U.S.C. § 924(c)(3)(A); see also
Resendiz-Ponce, 549 U.S. at 107 (noting that common-law
attempt requires (1) the requisite mens rea and (2) a substantial
step).
For attempted murder of a federal witness to qualify as
a crime of violence, then, a conviction must require, in every
instance, a showing that the defendant at least intended to use
physical force and took a substantial step toward using physical
force. “[T]he ‘knowing or intentional causation of bodily
injury,’” including death, “‘necessarily involves the use of
physical force’ under § 924(c) . . . .” Delligatti, 604 U.S. at 433
(quoting United States v. Castleman, 572 U.S. 157, 169
(2014)). To prove attempted murder, the Government must
prove an intent to kill, see Braxton, 500 U.S. at 349–50—
which means it must prove an intent to use physical force,
Delligatti, 604 U.S. at 433. And because it must also prove the
defendant took a substantial step toward an intentional killing,
it necessarily must prove the defendant took a substantial step
toward using physical force. A substantial step toward using
physical force, with the required state of mind, is inescapably
an “attempted use . . . of physical force”—whether or not the
substantial step itself is violent. 18 U.S.C. § 924(c)(3)(A).
Every circuit to consider whether attempted murder (as
defined by various federal and state laws) is a crime of violence
under the elements clause has answered in the affirmative. See
United States v. Pastore, 83 F.4th 113, 121–22 (2d Cir. 2023)
(New York attempted murder and federal violent-crimes-in-
aid-of-racketeering attempted murder); United States v.
Lassiter, 96 F.4th 629, 633 (4th Cir. 2024) (Virginia attempted
murder); United States v. States, 72 F.4th 778, 790–91 (7th Cir.
2023) (attempted murder of a federal official); Dorsey v.

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United States, 76 F.4th 1277, 1283 (9th Cir. 2023) (attempted
murder of a federal witness); Alvarado-Linares v. United
States, 44 F.4th 1334, 1347 (11th Cir. 2022) (Georgia
attempted murder and federal violent-crimes-in-aid-of-
racketeering attempted murder). We join our sister courts in
that conclusion: because the Government must always prove
an intent to use physical force and a substantial step toward that
end, attempted murder of a federal witness always includes an
attempted use of force and therefore is a crime of violence
under the elements clause.
3.
We held this case pending decisions in Delligatti and
Vines, but neither of those decisions contradict our holding
here that attempted murder of a federal witness is a crime of
violence.
Delligatti foreclosed one of Smith’s previous
arguments—that attempted murder is not a crime of violence
because it can be committed by omission. Smith argued that
“an act of omission does not constitute an act of physical
force,” and because someone can be convicted of attempted
murder for acts of omission, attempted murder cannot be a
crime of violence under the categorical approach. Appellant’s
Br. 36 (quoting United States v. Harris, 68 F.4th 140, 146 (3d
Cir. 2023)). But the Court held in Delligatti that the “‘use’ of
‘physical force’ in § 924(c) encompasses the knowing or
intentional causation of bodily injury,” which includes
instances “when an offender causes bodily injury by omission
rather than affirmative act.” 604 U.S. at 429.
In Vines, we held that both attempted bank robbery, 18
U.S.C. § 2113(a), and attempted armed bank robbery, 18
U.S.C. § 2113(d), are crimes of violence under § 924(c). 134
F.4th at 733. At first blush this may seem contrary to Taylor’s

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holding that attempted Hobbs Act robbery is not a crime of
violence. However, there is a material distinction in the statutes
at issue. Id. at 738. Attempted bank robbery under 18 U.S.C.
§ 2113(a) requires making the attempt “by force and violence,
or by intimidation.” Because the “by force and violence, or by
intimidation” element means that a conviction for attempted
bank robbery requires a showing of at least intimidation—that
is, a threatened use of force—rather than merely an attempt to
threaten, “one cannot be convicted” of attempted bank robbery
“without committing a crime of violence.” Id. at 739.
The Hobbs Act robbery statute in Taylor, on the other
hand, does not include a similar statutory requirement for the
attempt-based offense. 18 U.S.C. § 1951(a).1 So, the Court
“applied the Model Penal Code and common law definitions of
attempt.” Vines, 134 F.4th at 738. And because completed
Hobbs Act robbery requires only a showing of a threat, an
attempted Hobbs Act robbery can be completed by a mere
attempt to threaten. See id. (“[T]here is no force or violence
element in attempted Hobbs Act robbery: It just requires
showing that ‘[t]he defendant intended to unlawfully take
personal property by means of actual or threatened force’ and
1 Someone who “in any way or degree obstructs, delays,
or affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or attempts
or conspires so to do” violates the Hobbs Act. 18 U.S.C.
§ 1951(a). “The verb ‘attempt’ is unmodified,” and there is “no
statutory language requiring the attempt to be made by force.”
Vines, 134 F.4th at 738. But the bank robbery statute at issue
in Vines “is more specific: The adverbial phrase requiring
force, violence, or intimidation limits the verb ‘attempt.’” Id.;
18 U.S.C. § 2113(a).

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completed a substantial step toward doing so.” (quoting
Taylor, 596 U.S. at 851)).
Here, the predicate offense is attempted murder of a
federal witness, 18 U.S.C. § 1512(a)(1)(C), which, like
attempted Hobbs Act robbery in Taylor but unlike attempted
bank robbery in Vines, does not have an additional statutory
requirement for the attempt-based offense. Smith asserts that,
given the commonality with the Hobbs Act robbery statute in
Taylor, common law-based attempted murder of a federal
witness similarly cannot be a crime of violence. He points to a
sentence in Vines to support his argument: “With no statutory
language requiring the attempt to be made by force, Taylor
applied the Model Penal Code and common law definitions of
attempt, which do not require force.” 134 F.4th at 738.
Indeed, the Model Penal Code and common law
definitions of general attempt liability do not require force. See
Model Penal Code § 5.01. But attempted murder does require
at least the attempted use of force because, as we have
explained, one can intentionally kill someone only by force.
See Delligatti, 604 U.S. at 433. The sentence Smith plucks
from Vines might be favorable in isolation, but read in context
with the following sentence, it merely helps distinguish
attempted Hobbs Act robbery from attempted bank robbery:
With no statutory language requiring the attempt
to be made by force, Taylor applied the Model
Penal Code and common law definitions of
attempt, which do not require force. Thus, there
is no force or violence element in attempted
Hobbs Act robbery: It just requires showing that
“[t]he defendant intended to unlawfully take
personal property by means of actual or

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threatened force” and completed a substantial
step toward doing so.
Vines, 134 F.4th at 738 (quoting Taylor, 596 U.S. at 851)
(internal citations omitted).
Taken together, the sentences explain why attempted
Hobbs Act robbery is not a crime of violence—because attempt
liability generally does not require force, and a conviction for
attempted Hobbs Act robbery can be obtained by showing an
attempt to threaten force. Vines does not consider attempt
crimes, such as attempted murder of a federal witness, where
the underlying completed crime necessarily requires the use of
force (not just a threatened use of force). And, as we have
explained, attempted murder of a federal witness—unlike
attempted Hobbs Act robbery—necessarily requires at least the
“attempted use . . . of physical force.” 18 U.S.C.
§ 924(c)(3)(A). Therefore, it is a crime of violence under
§ 924(c).
B.
Smith argues that even if attempted murder of a federal
witness is a crime of violence, there is a reasonable probability
that his Count Six § 924(c) conviction is based on the
solicitation conviction, an invalid predicate. He points
specifically to the instruction that the jury could return a
§ 924(c) guilty verdict predicated either on solicitation or
attempted murder of a federal witness and asserts that this
instruction was erroneous. The Government does not argue that
solicitation is a qualifying crime of violence, and for good
reason: the solicitation statute criminalizes commanding,
inducing, or persuading someone else to commit a crime of
violence. 18 U.S.C. § 373(a). A command, inducement, or
persuasion is not itself a use, attempted use, or threatened use
of physical force. Nevertheless, the Government argues that

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there is no reasonable probability that Smith’s Count Six
§ 924(c) conviction is based only on the solicitation
conviction. And it additionally suggests that Smith has
forfeited this argument by not presenting it in the District
Court, meaning “review is therefore for plain error.”
Appellee’s Br. 33. We need not decide whether Smith forfeited
his argument because the result is the same whether or not the
plain-error standard applies.
Federal habeas relief is warranted where a district court
gives an erroneous jury instruction that “had substantial and
injurious effect or influence in determining the jury’s verdict.”
Hassine v. Zimmerman, 160 F.3d 941, 950 (3d Cir. 1998)
(quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). “A
conviction based on a general verdict is subject to challenge if
the jury was instructed on alternative theories of guilt and may
have relied on an invalid one.” Hedgpeth v. Pulido, 555 U.S.
57, 58 (2008) (per curiam).
In the context of a § 924(c) conviction, an instruction
that the jury could rely on a combination of valid and invalid
predicate offenses to convict is erroneous. See United States v.
Wilson, 960 F.3d 136, 151 (3d Cir. 2020). But if the same jury
convicts the defendant for both the valid and invalid predicate
offenses, the error is harmless if it is not reasonably possible
that the § 924(c) conviction was based only on the invalid
predicate. Id. (citing United States v. Waller, 654 F.3d 430, 434
(3d Cir. 2011)). In Wilson, for example, the jury convicted the
defendant of both armed bank robbery (a valid predicate) and
conspiracy (an invalid predicate). Id. There was “no
‘reasonable possibility’ that the jury based its § 924(c)
convictions only on the conspiracy as opposed to the bank-
robbery counts.” Id. (quoting United States v. Duka, 671 F.3d
329, 356 (3d Cir. 2011)). Therefore, “any error was harmless.”
Id.; see also United States v. Cannon, 987 F.3d 924, 948 (11th

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Cir. 2021) (error is harmless if “the trial record makes clear
that the [valid and invalid predicates] were so inextricably
intertwined that no rational juror could have found that
[defendants] carried a firearm in relation to one predicate but
not the other”).
Here, the jury was instructed that it could return a
§ 924(c) guilty verdict predicated either on solicitation or
attempted murder of a federal witness. As in Wilson, the jury
convicted Smith of both predicate offenses. Unlike in Wilson,
the predicates here are two distinct substantive crimes rather
than a valid substantive predicate and its related conspiracy.
Even so, the evidence here of one predicate offense
(solicitation) supported the other (attempted murder), and they
were “inextricably intertwined.” Cannon, 987 F.3d at 948.
Consider the Government’s closing argument to the jury,
which Smith cites in his reply brief:
Ladies and gentlemen, going to that block
[where the victim lived], having gotten that
address through his computer, having already
stated his clear intent to kill that woman,
bringing a man there and giving him a gun to kill,
that, ladies and gentlemen, is a substantial step
toward the murder . . . . That, ladies and
gentlemen, was the commanding, the procuring,
the inducing of the murder . . . . He didn’t say go
scare her. He didn’t say just sit in the car. He
said, kill her and then provided him with the
deadly means in which to do it.
Reply Br. 16 (quoting D. Ct. Dkt. 120 at 164).
Under the Government’s theory, solicitation proved the
substantial step element in the attempted murder charge. “Both
federal law and the Model Penal Code recognize that

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‘solicitation accompanied by the requisite intent may constitute
an attempt.’” Martinez v. Att’y Gen., 906 F.3d 281, 286 (3d Cir.
2018) (quoting United States v. Am. Airlines, Inc., 743 F.2d
1114, 1121 (5th Cir. 1984)); see also Model Penal Code
§ 5.01(2)(g) (listing, as an example of a substantial step for
purposes of attempt, “soliciting an innocent agent to engage in”
the crime). The jury convicted Smith of both predicates, and
the two predicates are inextricably intertwined because
evidence of one supported the other. Therefore, there is no
reasonable possibility that the jury based its § 924(c)
conviction only on the solicitation predicate, and any error in
the jury instruction was harmless. And because the error was
harmless, it cannot be said that the trial court’s instruction had
a “substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht, 507 U.S. at 623 (quoting Kotteakos
v. United States, 328 U.S. 750, 776 (1946)).
A petitioner forfeits an argument that he fails to raise in
the district court. United States v. Bentley, 49 F.4th 275, 284
n.6 (3d Cir. 2022). Ordinarily, we review forfeited arguments
in criminal cases for plain error. 2 United States v. Adams, 252
F.3d 276, 284 (3d Cir. 2001); see also Fed. R. Crim. P. 52(b).
2 The Government argues that the plain-error standard
should apply. In fact, if Smith forfeited his jury instruction
argument on collateral review, the proper standard might be the
even more stringent “cause and actual prejudice” standard
articulated in United States v. Frady, 456 U.S. 152, 167 (1982).
See United States v. Pelullo, 399 F.3d 197, 220–21 (3d Cir.
2005). But neither party mentions the “cause and actual
prejudice” standard, and in any event, if Smith cannot
overcome the plain-error standard, he cannot overcome the
“significantly higher hurdle” of the “cause and actual
prejudice” standard. Frady, 456 U.S. at 166.

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If Smith cannot overcome the Brecht standard because the
error was harmless, then he necessarily cannot overcome the
plain-error standard. A harmless error “does not affect
substantial rights.” Fed. R. Crim. P. 52(a). But a plain error by
definition “affects substantial rights.” Fed. R. Crim. P. 52(b).
Under plain-error review, we can “correct the error” only if a
district court “committed (1) ‘error’ (2) that is ‘plain’ (3) that
‘affect[s] substantial rights.’” Adams, 252 F.3d at 285 (quoting
United States v. Olano, 507 U.S. 725, 732 (1993)). If such an
error exists, we still will not exercise our discretion to correct
it “unless the error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” Olano, 507 U.S. at
732 (quoting United States v. Young, 470 U.S. 1, 15 (1985)).
To show that a plain error affects his substantial rights,
Smith would have to “‘show a reasonable probability that, but
for the error,’ the outcome of the proceeding would have been
different.” Molina-Martinez v. United States, 578 U.S. 189,
194 (2016) (quoting United States v. Dominguez Benitez, 542
U.S. 74, 76 (2004)). Because the erroneous instruction was
harmless and did not have a “substantial and injurious effect or
influence in determining the jury’s verdict,” Brecht, 507 U.S.
at 623 (quoting Kotteakos, 328 U.S. at 776), Smith cannot
show “the outcome of the proceeding would have been
different” without the error, Molina-Martinez, 578 U.S. at 194.
IV.
Attempted murder of a federal witness is a crime of
violence because the government must necessarily prove that
the defendant at least attempted to use physical force.
Additionally, there is not a reasonable probability that Smith’s
§ 924(c) conviction is based only on the impermissible
solicitation predicate, so any error in the jury instruction was
harmless. Therefore, we will affirm the District Court’s denial

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of relief.

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