Opinion
No: 18-2800 No: 18-2877
10-26-2020
UNITED STATES of America, Appellee v. Howard R. ROSS, III, also known as Lil Howard, also known as Shooter, Appellant United States of America, Appellee v. Raynal King, Appellant
ORDER
The petitions for rehearing en banc are denied. The petitions for panel rehearing are also denied.
Judge Kelly, Judge Erickson, Judge Stras and Judge Kobes would grant the petitions for rehearing en banc .
COLLOTON, Circuit Judge, concurring in the denial of rehearing en banc. While one may share the rehearing dissent's dislike for "legal gymnastics," it should be said that the acrobatics in this case were undertaken by those urging the improbable conclusion that kidnapping resulting in death under 18 U.S.C. § 1201(a) is not a "crime of violence." Because a kidnapper must act intentionally, the kidnapping must cause a death, and death cannot be caused without applying force, it follows that the use of force is an element of kidnapping resulting in death. No paradigm shift by the Supreme Court is necessary to avoid a "nonsensical" or "absurd" result in this case. The imaginative hypotheticals propounded on behalf of the appellants overlook that when a perpetrator commits an intentional kidnapping, a culpable scienter with respect to the deadly consequences is supplied by the law based on the underlying felony, and causing death through the indirect application of force counts as "use" the same as applying force directly. As with an offender who commits felony murder, a defendant convicted of kidnapping resulting in death does not cause the death innocently or by accident in the eyes of the law.
ERICKSON, Circuit Judge, dissenting from denial of rehearing en banc.
I would grant the petitions for rehearing en banc. As Judge Stras so convincingly stated in his dissenting panel opinion, application of the categorical approach here requires the conclusion that the crime of kidnapping resulting in death can be committed without the use of physical force. United States v. Ross, 969 F.3d 829, 845-46 (8th Cir. 2020) (Stras, J., dissenting). Thus, the offense is not categorically a crime of violence, even if that result is completely unsatisfactory and nonsensical given the facts here.
It should be apparent after reading the majority opinion that the purported reasons for designing and applying the categorical approach, as originally conceived, are insufficient to justify the legal gymnastics that courts must perform to avoid such absurd results. A better – and undoubtedly simpler – rule would allow judges to consider the underlying facts of each case, even if in some limited way.
Under the current regime, the categorical approach requires a tedious, imperfect, confusing, and at times conflicting analysis of thousands of crimes and subcrimes, across individual state and federal jurisdictions, including both crimes of conviction and also sentencing enhancements. In each instance, attorneys and judges must consider, for example, the generic version of the crime, whether the text of the statute lists alternative elements to require the "modified categorical approach," whether the statute is divisible or indivisible, or whether it enumerates various alternative factual means of satisfying a single element of the crime. Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ; Shepard v. United States, 544 U.S. 13, 25-26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ; Descamps v. United States, 570 U.S. 254, 261-64, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 2249-50, 195 L.Ed.2d 604 (2016).
The time, effort, and resources required from trial and appellate judges (including, and especially, the panel here) to conform their analysis to this current version of the categorical approach is a frustrating waste of judicial resources that all too frequently results in surprising and absurd results. It falls far short of swift and fair justice, in my view.
The Supreme Court should revisit the categorical approach in light of the manifold problems it has created in the 30 years that have passed since Taylor. But, in the world that exists today, kidnapping resulting in death is not a crime of violence under the categorical approach. For that reason, I respectfully dissent.