Attempted Murder of a Federal Witness Categorically Qualifies as a § 924(c) “Crime of Violence” Under the Elements Clause

Case: United States v. Dameia Smith (3d Cir. Feb. 3, 2026) (precedential)
Panel: Chagares, C.J., Bibas & Fisher, JJ. (opinion by Fisher, J.)
Posture: Appeal from denial of second/successive 28 U.S.C. § 2255 motion after United States v. Davis and United States v. Taylor

1. Introduction

This decision addresses whether attempted murder of a federal witness, 18 U.S.C. § 1512(a)(1)(C), is a “crime of violence” for purposes of 18 U.S.C. § 924(c) after the Supreme Court’s modern narrowing of qualifying predicates. The case arises from Dameia O. Smith’s 2000 convictions, including a § 924(c) firearm count (Count Six) that—on a general verdict form—could be predicated on either (i) solicitation to commit witness murder, 18 U.S.C. § 373, or (ii) attempted murder of a federal witness, 18 U.S.C. § 1512(a)(1)(C).

Two issues drove the appeal:

• Categorical-approach issue: whether attempted witness murder “has as an element the use, attempted use, or threatened use of physical force” under the § 924(c)(3)(A) elements clause.
• General-verdict/alternative-predicate issue: even if attempted witness murder is valid, whether the § 924(c) conviction must be vacated because the jury could have relied only on the (concededly invalid) solicitation predicate.

2. Summary of the Opinion

The Third Circuit affirmed denial of Smith’s § 2255 motion. The court held:

1. Attempted murder of a federal witness qualifies under the elements clause (§ 924(c)(3)(A)) because the government must prove (a) intent to kill (which entails intent to use physical force) and (b) a substantial step toward that end (which is a substantial step toward using force), thereby satisfying “attempted use of physical force.”
2. Any instructional error allowing the jury to predicate § 924(c) on solicitation was harmless under Brecht v. Abrahamson because there was no reasonable possibility the jury relied only on solicitation: the same verdict necessarily found attempted murder too, and the evidence and theory showed the predicates were “inextricably intertwined.”

3. Analysis

3.1 Precedents Cited

A. Supreme Court decisions shaping modern § 924(c) litigation

• United States v. Davis, 588 U.S. 445 (2019): invalidated § 924(c)(3)(B) (the residual clause) as unconstitutionally vague, forcing courts to decide predicates under the elements clause alone. This was the gateway for Smith’s second/successive collateral attack.
• United States v. Taylor, 596 U.S. 845 (2022): held attempted Hobbs Act robbery is not a § 924(c) crime of violence. The Smith court treated Taylor as important but limited: it rejected the defense’s broad reading that would effectively disqualify common-law-style attempts across the board.
• Delligatti v. United States, 604 U.S. 423 (2025): clarified that “use of physical force” in § 924(c) includes causing injury indirectly and by omission. The Smith court invoked Delligatti to foreclose arguments that attempted murder can be committed without “force” because it can be committed by omission.
• United States v. Castleman, 572 U.S. 157 (2014) (quoted through Delligatti): undergirds the proposition that “knowing or intentional causation of bodily injury” necessarily involves physical force—critical to bridging “intent to kill” to “intent to use force.”
• Braxton v. United States, 500 U.S. 344 (1991): confirms attempted killing requires a substantial step plus the requisite mens rea—used to anchor the attempt elements.
• United States v. Resendiz-Ponce, 549 U.S. 102 (2007): cited for the classic attempt structure (intent + substantial step), supporting the court’s understanding of “attempted use” as rooted in criminal attempt doctrine.
• Stokeling v. United States, 586 U.S. 73 (2019): supports the interpretive method that Congress legislates against common-law backdrops when using force terminology in recidivist/violent-crime definitions.
• Samantar v. Yousuf, 560 U.S. 305 (2010) and Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991): supply the general canon that statutory terms often incorporate settled common-law meanings.
• Quarles v. United States, 587 U.S. 645 (2019): invoked to avoid reading “attempted use” in a way that makes it nearly meaningless (“self-defeating statute”).

B. Third Circuit decisions framing the methodology and standards

• United States v. Vines, 134 F.4th 730 (3d Cir. 2025): reaffirmed use of the categorical approach and held attempted bank robbery/attempted armed bank robbery are crimes of violence because the bank robbery statute textually requires attempt “by force and violence, or by intimidation.” Smith used Vines to distinguish Taylor and to demonstrate why “attempt” cases must be analyzed with care as to the underlying statute and the specific “force” pathway.
• United States v. Harris, 68 F.4th 140 (3d Cir. 2023) and Hernandez-Cruz v. Att'y Gen., 764 F.3d 281 (3d Cir. 2014): stated the “least culpable conduct” formulation of the categorical approach.
• United States v. Tyler, 956 F.3d 116 (3d Cir. 2020): referenced for the elements of witness tampering murder/attempt murder under § 1512(a)(1).
• United States v. Daniels, 915 F.3d 148 (3d Cir. 2019), United States v. Glass, 904 F.3d 319 (3d Cir. 2018), and United States v. Cicco, 10 F.3d 980 (3d Cir. 1993): used to describe the Third Circuit’s attempt-liability framework (Model Penal Code: intent + substantial step; substantial step “strongly corroborative” of intent).
• United States v. Wilson, 960 F.3d 136 (3d Cir. 2020), United States v. Waller, 654 F.3d 430 (3d Cir. 2011), and United States v. Duka, 671 F.3d 329 (3d Cir. 2011): provide the Third Circuit’s harmlessness framework for mixed valid/invalid § 924(c) predicates under a general verdict.
• Hassine v. Zimmerman, 160 F.3d 941 (3d Cir. 1998) and Brecht v. Abrahamson, 507 U.S. 619 (1993): set the collateral-review test for instructional error—whether it had a “substantial and injurious effect.”
• United States v. Boone, 458 F.3d 321 (3d Cir. 2006) and United States v. Peppers, 899 F.3d 211 (3d Cir. 2018): standard-of-review authorities (de novo for predicate qualification; de novo/abuse of discretion for jury instructions).

C. Sister-circuit attempted-murder decisions (consensus evidence)

The court emphasized unanimity across circuits that attempted murder qualifies as a crime of violence under the elements clause:

• United States v. Pastore, 83 F.4th 113 (2d Cir. 2023)
• United States v. Lassiter, 96 F.4th 629 (4th Cir. 2024)
• United States v. Hunt, 99 F.4th 161 (4th Cir. 2024) (also rejecting a narrowing construction of “attempted use”)
• United States v. States, 72 F.4th 778 (7th Cir. 2023)
• Dorsey v. United States, 76 F.4th 1277 (9th Cir. 2023)
• Alvarado-Linares v. United States, 44 F.4th 1334 (11th Cir. 2022)

D. General-verdict and plain-error backdrop

• Hedgpeth v. Pulido, 555 U.S. 57 (2008): establishes that a general verdict is vulnerable if the jury may have relied on an invalid theory—subject to harmless-error analysis.
• Kotteakos v. United States, 328 U.S. 750 (1946): supplies the “substantial and injurious effect” formulation adopted in Brecht.
• United States v. Cannon, 987 F.3d 924 (11th Cir. 2021): cited for the “inextricably intertwined” approach to harmlessness in mixed-predicate § 924(c) cases.
• United States v. Bentley, 49 F.4th 275 (3d Cir. 2022), United States v. Adams, 252 F.3d 276 (3d Cir. 2001), United States v. Olano, 507 U.S. 725 (1993), United States v. Young, 470 U.S. 1 (1985), Molina-Martinez v. United States, 578 U.S. 189 (2016), United States v. Dominguez Benitez, 542 U.S. 74 (2004): appear in the court’s alternative discussion that, even if forfeiture/plain-error applied, Smith could not show prejudice because the instructional error was harmless.
• United States v. Frady, 456 U.S. 152 (1982) and United States v. Pelullo, 399 F.3d 197 (3d Cir. 2005): noted (in a footnote) as potentially imposing an even higher “cause and actual prejudice” standard on collateral review, though the court did not need to apply it.

3.2 Legal Reasoning

A. The court’s limiting construction of United States v. Taylor

The opinion begins by refusing to convert Taylor (attempted Hobbs Act robbery) into a general anti-attempt rule. Three moves are central:

1. Contextual reading: the key “substantial step” sentence in Taylor is read as tethered to attempted Hobbs Act robbery’s structure and to Taylor’s focus on “threat” analysis, not as a general statement about all attempt crimes.
2. Threat pathway matters: the court accepts the Government’s core distinction: where an underlying offense can be completed by “threatened force,” attempt liability may sweep in an “attempt to threaten,” which is not listed in § 924(c)(3)(A). By contrast, murder is not completed by threat; it is completed by killing.
3. Supreme Court non-resolution: citing Delligatti, the court notes the Supreme Court has not extended Taylor to attempted murder.

B. Defining “attempted use of physical force” by reference to criminal attempt doctrine

The court identifies the dispute as one of translation: what does “attempted use” mean in § 924(c)(3)(A)? Smith urged a narrow view (“unsuccessful active employment of violent force”), which would confine “attempted use” to near-completed force applications. The court rejects that reading for two reasons:

• Anti-surplusage/anti-nullity: it would render “attempted use” close to meaningless because criminal statutes typically criminalize attempts via intent + substantial step, not via a requirement that the defendant already “employed” force but failed.
• Mismatch with attempt law: because the Third Circuit follows the Model Penal Code’s attempt framework, many substantial steps are non-violent (e.g., “lying in wait,” “reconnoitering,” or “soliciting an innocent agent”), yet are paradigmatic attempts.

The court then adopts the Government’s synthesis: Congress used “attempted” against the background of the established common-law meaning of attempt—intent plus a substantial step. Thus, “attempted use of physical force” means an intent to use force plus a substantial step toward using force.

C. Why attempted witness murder necessarily involves an attempted use of force

With “attempted use” defined, the categorical analysis becomes linear:

1. Murder entails force: under Delligatti (quoting Castleman), intentional causation of bodily injury (including death) necessarily involves “use of physical force,” including indirect force and omission-based causation.
2. Attempted murder requires intent to kill: per Braxton v. United States, attempted killing requires the requisite mens rea. If intent to kill necessarily implies intent to use force (because killing requires force), then the mens rea element “imports” an intent to use physical force.
3. Substantial step toward killing is a substantial step toward force: because the actus reus is a substantial step toward the intended killing, it is necessarily a substantial step toward employing the force required to bring about death.

The decisive conceptual move is that the substantial step itself need not be violent. What matters is that it is a substantial step toward the use of force that the defendant intended to employ to kill.

D. Alternative-predicate instruction: error, but harmless on collateral review

The court effectively assumes (without needing to decide forfeiture) that it was error to instruct the jury it could predicate Count Six on solicitation. But it finds no basis for vacatur because the error did not have a “substantial and injurious effect” (Brecht):

• The jury convicted on both predicates (solicitation and attempted witness murder), which triggers Wilson’s framework.
• The predicates were “inextricably intertwined”: the Government argued the solicitation conduct (bringing a gun, insisting an accomplice enter and kill) was also the substantial step establishing attempt. The court relied on the recognized overlap that “solicitation accompanied by the requisite intent may constitute an attempt” (Martinez v. Att'y Gen., 906 F.3d 281 (3d Cir. 2018); also citing Model Penal Code § 5.01(2)(g) and United States v. Am. Airlines, Inc., 743 F.2d 1114 (5th Cir. 1984)).
• Therefore, there was no reasonable possibility the jury’s § 924(c) verdict rested only on the invalid solicitation predicate.

3.3 Impact

• Clarifies post-Taylor boundaries in the Third Circuit: United States v. Dameia Smith confirms that Taylor does not generally invalidate attempt predicates; instead, courts must ask whether the attempt necessarily aims at (and substantially steps toward) force, as opposed to an “attempt to threaten.”
• Establishes a durable rule for attempted murder predicates: by explicitly grounding “attempted use” in common-law attempt doctrine and by tying intent-to-kill to intent-to-use-force via Delligatti, the opinion makes attempted murder (here, § 1512(a)(1)(C)) a stable § 924(c) predicate.
• Guides mixed-predicate § 924(c) collateral attacks: defendants challenging general verdicts must show a realistic pathway by which the jury could have relied only on an invalid predicate. Where the trial theory and proof make the predicates overlap (solicitation as the attempt’s substantial step), harmlessness will often defeat relief.
• Practical effect on charging and instructions: while prosecutors may continue charging multiple predicates, the decision also implicitly warns that including non-qualifying predicates (like solicitation) in § 924(c) instructions invites litigation—even if harmlessness ultimately saves the conviction.

4. Complex Concepts Simplified

• Categorical approach: a court looks at the statute’s elements, not the defendant’s real-world conduct, and asks whether the offense always (in its least culpable form) requires “use/attempted use/threatened use” of physical force.
• Elements clause vs. residual clause: the residual clause once captured crimes involving “substantial risk” of force, but United States v. Davis struck it down. Now, only the elements clause matters for § 924(c).
• “Attempted use” of force: not limited to “almost successfully” using force. Under attempt doctrine, an attempt is intent plus a substantial step. So, an “attempted use of force” is intent to use force plus a substantial step toward using it—even if the step (planning, travel, solicitation) is not itself violent.
• Why murder “requires force” even if indirect or by omission: under Delligatti, causing death by poisoning, withholding necessities, or other indirect means still counts as using physical force because the law treats intentional causation of bodily injury as force.
• General verdict with alternative theories: if jurors are told they may convict on Theory A or Theory B, and one theory is invalid, the conviction can stand if the reviewing court concludes the error did not matter—on collateral review, that means no “substantial and injurious effect” (Brecht).

5. Conclusion

United States v. Dameia Smith sets a clear Third Circuit rule: attempted murder of a federal witness under 18 U.S.C. § 1512(a)(1)(C) is categorically a § 924(c) “crime of violence” because it necessarily involves an attempted use of physical force (intent to kill plus substantial step). The opinion also tightens the pathway to collateral relief for mixed-predicate § 924(c) general verdicts by applying a robust harmlessness analysis where the valid and invalid predicates were functionally bound together at trial.