                                    PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                       No. 14-1



UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

JORGE AVILA TORREZ,

                   Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge. (1:11-cr-00115-LO-1)


Argued: May 9, 2017                                        Decided: August 28, 2017


Before DIAZ, FLOYD, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Diaz
concurred. Judge Diaz wrote a separate concurring opinion. Judge Floyd wrote an
opinion concurring in part and dissenting in part.


ARGUED: Julie L.B. Stelzig, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant. James L. Trump, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: James Wyda,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Baltimore, Maryland; Robert E. Lee, Jr., VIRGINIA CAPITAL REPRESENTATION
RESOURCE CENTER, Charlottesville, Virginia, for Appellant. Dana J. Boente, United
States Attorney, Richard D. Cooke, Jonathan L. Fahey, Michael E. Rich, Assistant United
States Attorneys, Robert J. Heberle, Special Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.




                                          2
THACKER, Circuit Judge:

       Jorge Avila Torrez (“Appellant”) was convicted of first-degree murder and

sentenced to death. In this appeal, he raises a host of challenges to his conviction and

death sentence. We find the challenges to his conviction to be without merit. As for

sentencing, we focus on three specific challenges: (1) whether Appellant’s death sentence

was unconstitutional because it was based solely on post-offense conviction aggravators;

(2) whether the district court erred in failing to apply the categorical approach to state

convictions that made him death penalty eligible; and (3) whether the district court erred

by allowing Appellant to forego a mitigation defense without conducting a second

competency evaluation and hearing.        For the reasons explained below, we find no

reversible error in the sentencing proceedings.      Accordingly, we affirm Appellant’s

conviction and sentence.

                                             I.

                                    Factual Background

       We view the facts in the light most favorable to the Government, the prevailing

party at trial. See United States v. Said, 798 F.3d 182, 186 n.2 (4th Cir. 2015).

                                             A.

                                        The Murder

       On July 13, 2009, Amanda Snell was found dead in her room at Joint Base Myer-

Henderson Hall, a residence hall on a military base located near Arlington, Virginia.

When the 20-year-old Navy Intelligence Specialist did not show up for duty on Sunday

night, July 12, two officers investigated and discovered her body in her room early the

                                             3
next morning. She was lying in an unnatural position at an angle on the floor of a wall

locker, with her knees pressed into her torso and her feet pushed against a drawer. Her

head was covered by a pillowcase and pushed down into her chest.

          The Naval Criminal Investigative Service (“NCIS”) arrived at 7:45 a.m. on

Monday, July 13, and began its investigation. Agents conducted a walk-through and

inventory, took the temperature of the room and Snell’s body, took photographs, and took

impressions of shoeprints in the vinyl floor in front of the wall locker. The agents

noticed that the bed was made, with only a fitted sheet and a comforter, and the room was

clean.        Based on the information gathered on the morning of July 13, the medical

examiner believed Snell had been dead for 24 to 36 hours or more. After conducting an

autopsy, the examiner listed the cause of death as “undetermined.” J.A. 4099. 1 He noted

there was “no recent or remote evidence of significant injury.” Id. at 4101. He did note

moderate dysplasia of the atrioventricular nodal artery in the heart, which “has been

associated with cardiac arrhythmias and sudden death,” but he did not attribute Snell’s

death to this condition. Id. at 4104. The Government later retained a second medical

examiner.        Based on the circumstances at the scene, this second medical examiner

concluded that the cause of death was asphyxia, which can occur without any visible

injury.




          1
              Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal.


                                                 4
      Appellant lived down the hall from Snell. He, like others who lived near Snell,

complied with NCIS’s request to complete a personal data sheet, in which he indicated

that he did not know Snell and had never been in her room. He also consented to a search

of his room and gave a DNA sample.

                                            B.

                                  The Arlington Crimes

      Snell’s murder remained unsolved until 2010, when Appellant was arrested for

other crimes in Arlington County, Virginia. On February 10, 2010, Appellant attempted

to abduct and assault M.N., a 26-year-old female who was walking to her boyfriend’s

house in Arlington County. Appellant approached her from behind, grabbed her jacket,

showed her a gun, and told her to keep quiet and keep walking. M.N. told Appellant,

“[J]ust take my bag,” but he kept pushing her toward a tan Dodge Durango. J.A. 3631.

He also pulled out a knife and “urge[d] [her] along to get into the car.” Id. at 3634. M.N.

dropped her bag and ran away. Once she reached a nearby friend’s house, her friends

called the police, but neither Appellant nor M.N.’s bag was located.

       A little more than two weeks later, on February 27, 2010, two female graduate

students, J.T. and K.M., were walking to K.M.’s house in Arlington County. As they

stopped in front of the house, Appellant emerged from behind a parked car. He moved

his sweatshirt to the side to show the women he had a gun and demanded their wallets.

After the women told him they had no money, he forced them into K.M.’s house and

ordered them to kneel down next to the couch. He bound their hands with a vacuum

cord. At one point when Appellant left the room, the women were able to loosen their

                                            5
hands. Appellant returned to the room with a knife and retied J.T.’s hands with an iron

cord, and ordered the women to go to the bedroom. They complied, and when Appellant

left the room again, J.T. managed to grab her cell phone and call 911. Appellant returned

to the room, threw the cell phone against the wall, and then grabbed J.T. and led her

outside to his SUV. He “showed [her] [his] gun” again and told her to get in his vehicle.

J.A. 3649. After he drove for some time, he stopped, got in the back seat with J.T., and

told her he was going to rape her. He forced her to perform oral sex on him, and then he

put on a condom (saying, “I’m not an idiot”) and raped her. Id. at 3652. He forced her to

perform oral sex again, and then covered her face with packing tape. He drove to a

secluded area and forced J.T. to perform oral sex one more time. He then took J.T.’s

scarf and tightened it around her neck until she was unconscious. When she regained

consciousness, she was face down in the snow with her hands above her head.

Eventually, a passerby found her and called an ambulance.

      Based on the description of Appellant’s vehicle and the similarities and locations

of the two Arlington crimes, officers arrested Appellant on February 27, 2010, at Joint

Base Myer-Henderson Hall. 2 Police searched Appellant’s Durango and found J.T.’s

university ID and earring, packing tape, and a stun gun. In his barracks room, they found

a loaded Glock 22 pistol (which was purchased on February 5) and multiple rounds of

ammunition. They also seized his laptop and accessories, which contained dozens of

      2
         Two Arlington County police officers had observed someone matching
Appellant’s description and driving a Dodge Durango stalking women from his car for
long periods of time from February 4 through 6, days before the first Arlington crime.


                                           6
sexually explicit videos and images depicting violent rapes and sexual assaults, and

which were stored between April 2009 and February 2010. Many videos were “sleeping

rape” videos, meaning “someone is sleeping and is attacked or raped.” J.A. 3731.

       Appellant was convicted in Arlington County Circuit Court for abduction with

intent to defile, robbery, use of a firearm in a felony, abduction, rape, breaking and

entering while armed, and forcible sodomy. On December 10, 2010, the circuit court

entered judgment, imposing five life sentences, followed by consecutive sentences

totaling 168 years.

                                           C.

                                    The Zion Crimes

       Five years prior to the Arlington crimes, on May 8, 2005, two young girls (Laura

Hobbs and Krystal Tobias) were murdered in a park in Zion, Illinois, Appellant’s

hometown. One witness saw the girls talking to someone who looked like Appellant,

who at the time was 16 years old. When the girls did not return home that evening, a

search party was deployed, and Hobbs’s father and grandfather eventually found the girls

the next morning in a wooded area of the park. Authorities arrived and confirmed the

girls were dead; their bodies had sustained multiple stab wounds. Hobbs was stabbed 20

times, including wounds to her abdomen, side, back, and horizontal stab wounds

perforating her eyelids. One of the wounds punctured her liver. Officials also discovered

a significant amount of male DNA in Hobbs’s right hand. Tobias was stabbed 11 times,

in her stomach, intestines, liver, neck, windpipe, and cervical spine, causing significant

hemorrhaging in her neck.

                                            7
       Within days, officials arrested and charged Jerry Hobbs, Laura Hobbs’s father,

who had a felony record. But after evidence collected during the autopsy was sent to the

crime laboratory, Jerry Hobbs was excluded as a suspect based on DNA analysis. The

lab also tested semen found on Hobbs’s clothing, vagina, rectum, and mouth, but officials

were unable to determine a source.      The DNA records were put into a nationwide

database, and periodically, the state DNA forensic examiner would check for a match. In

June 2010, after Appellant was arrested for the Arlington crimes and his DNA entered

into the system, the examiner found he was a potential match. Further testing showed

that Appellant was indeed a match for the clothing and vagina DNA, as only one in every

985 quadrillion individuals would be expected to have the same profile. He also could

not be excluded as the source of the other DNA found in Hobbs’s right hand, anus, and

mouth. 3

                                            D.

                                     Osama El-Atari

       While he was awaiting trial for the Arlington crimes, Appellant was held in the

Arlington County Detention Facility. Because police officers suspected Appellant was

planning to threaten and/or intimidate witnesses in the Arlington case, they arranged for a

federal inmate, Osama El-Atari, to act as a confidential informant and record

conversations between the two of them. El-Atari recorded conversations over the course


       3
         Appellant was eventually indicted for the Zion murders in Illinois before the
sentencing hearing in this case.


                                            8
of approximately one week in August 2010. During those conversations, Appellant

admitted to suffocating Snell in her room, calling it “[t]he perfect crime.” J.A. 4307,

4325. However, his story changed over time, and sometimes he indicated he was teasing

El-Atari about the details of the crime. See, e.g., id. at 4331 (saying he strangled her); id.

at 4319 (saying he choked her with a plastic bag); id. at 4335–36 (saying he choked her

with a laptop cord); id. at 4315 (agreeing he pinned her down and “choke[d] [her] out”).

He also bragged about crimes he did not commit, telling El-Atari he killed 23 people in

total.

         He told El-Atari that Snell was a random victim and he murdered her “for the

adrenaline,” J.A. 4347; because “[he] got bored,” id. at 4377; and simply “because [he]

could,” id. at 4322. He accurately described how he placed her body in the wall locker,

except he told El-Atari he put a bag over her head, rather than a pillowcase. See id. at

4360 (“[S]he wouldn’t fit laying flat. I had to bend her fucking knees and make her like

she’s sitting down, ‘cause it’s a small closet.”). He said after he killed Snell, he made the

bed and thoroughly cleaned the room. Appellant said he removed one of the bed sheets,

but he left the fitted sheet. 4


         4
          Appellant also confided to El-Atari about the murders of Laura Hobbs and
Krystal Tobias. He told him he killed two girls when he was 16 years old, and when the
father of one of the girls confessed, “I was like, Damn. . . . I’m clean. I’m good. I ain’t
got shit to worry about.” J.A. 5081. Appellant recounted the murders in excruciating
detail, and his story corresponded with the autopsies of the girls. But again, he changed
his story about his motive. See, e.g., id. at 5092 (stating it was “[r]andom”); id. at 5115
(stating he did it for “no reason”); id. at 5140 (suggesting the girls saw him deliver
drugs). He also claimed he did not have sexual contact with either one of them.


                                              9
       Upon hearing this information, NCIS expedited testing of the fitted sheet, and

technicians discovered a semen stain consistent with Appellant’s DNA. State police had

also seized Appellant’s Nike shoes after his arrest for the Arlington crimes. Based on

Appellant’s statements to El-Atari, officials asked that those shoes be compared to the

footwear impressions found in front of Snell’s wall locker. A government latent print

examiner testified that the shoes that made the impressions were “consistent in size,

design, and wear” with Appellant’s shoes. J.A. 3508.

       Additionally, NCIS again interviewed Appellant. This time, he acknowledged

knowing that Snell lived near him, but still said he had never been in her room.

                                            II.

                                   Procedural History

                                            A.

                                       Guilt Phase

       On May 26, 2011, a federal grand jury returned an indictment charging Appellant

with one count of first-degree murder of Amanda Snell.          See 18 U.S.C. § 1111(a)

(defining federal first-degree murder as the “willful, deliberate, malicious, [or]

premeditated” killing of another). The indictment alleged statutory aggravating factors

supporting a death sentence.     Specifically, it charged that Appellant was previously

convicted of a state offense “involving the use or attempted use or threatened use of a

firearm,” and that Appellant was previously convicted of two state offenses “involving

the infliction of, or attempted infliction of, serious bodily injury or death upon another

person.” J.A. 56.

                                            10
       On February 29, 2012, the Government filed a notice of its intent to seek the death

penalty. See J.A. 75–83 (the “Notice”). The Notice listed two statutory aggravating

factors: previous conviction of a felony involving the use or attempted or threatened use

of a firearm; and two separate, previous convictions involving the infliction of, or

attempted infliction of, serious bodily injury or death. The Notice listed the Arlington

convictions in support of both aggravating factors. See id. at 76–78. Before trial,

Appellant filed two motions to strike the statutory aggravating factors, but the district

court denied both requests.

       Trial commenced on March 31, 2014. The Government called more than 30

witnesses over the course of four days and introduced hundreds of pages of exhibits.

Appellant’s counsel cross-examined the Government’s witnesses, but only presented one

witness, a former Marine who lived at Myer-Henderson Hall and testified that he had

been in Snell’s room at one time, but lied about it because of a rule that members of the

opposite sex should not be in a room together with the door closed. The jury returned a

guilty verdict on the sole first-degree murder count on April 8, 2014.

                                            B.

                                      Penalty Phase

       The district court bifurcated the penalty phase into (1) an eligibility phase, during

which the jury determines whether a defendant is eligible for the death penalty based on

statutory factors; and (2) a selection phase, during which the jury considers aggravating

and mitigating factors and decides whether the death penalty is warranted. The eligibility

phase began on April 21, 2014. As explained in more depth below, during that phase, the

                                            11
same jury that convicted Appellant found him eligible for the death penalty based on two

statutory aggravating factors. The jury then proceeded to the selection phase, where it

considered both statutory and non-statutory factors and unanimously recommended a

sentence of death. Appellant chose not to present mitigating evidence. On May 30,

2014, the district court adopted the jury’s recommendation and sentenced Appellant to

death. He noted this appeal the same day.

                                            III.

                            Challenges to Murder Conviction

       Appellant raises five challenges to his first-degree murder conviction: (1) whether

the district court improperly limited Appellant’s confrontation rights when it conditioned

the cross-examination of Osama El-Atari on the admission of evidence of the Zion

crimes; (2) whether the district court violated Rule 404(b) when it admitted evidence of

the Arlington crimes and Appellant’s electronic media showing violent pornography; (3)

whether the district court committed reversible error in allowing expert testimony on

shoeprint analysis; (4) whether Appellant was denied his right to an impartial jury when

the district court refused to allow him to ask potential jurors whether they would consider

a sentence of life upon hearing evidence that Appellant had murdered two young children

and sexually abused one of them; and (5) whether the Government’s use of cell site

location information (“CSLI”) against Appellant violated his Fourth Amendment rights. 5


       5
        Appellant acknowledges that his CSLI argument is foreclosed by this court’s en
banc decision in United States v. Graham, 824 F.3d 421, 423 (4th Cir. 2016) (en banc).
See Appellant’s Reply Br. 85. Thus, we will not address it here.


                                            12
                                            A.

                              Cross-Examination of El-Atari

       Part of Appellant’s defense strategy was to demonstrate that he was lying or

exaggerating during the course of his jail conservations with Osama El-Atari. Thus,

defense counsel sought to cross-examine El-Atari about information Appellant gave that

was false or “patently incredible,” including his representations to El-Atari that he

committed other crimes he could not have committed.              Appellant’s Br. 129–30.

However, the district court ruled that if Appellant proceeded with this line of questioning,

the Government would be able to introduce conversations about the Zion crimes. See

J.A. 3843 (“If you are going to get into other crimes . . . and the fact th[at] he didn’t

commit other crimes that he said he did, then I think it opens up Zion open wide.”); id. at

3845 (“My ruling is that as long as you don’t . . . start asking about other murders that he

has committed and other crimes that aren’t within the transcripts presently, I am not

going to allow the Zion 404(b) evidence.”). Based on this ruling, defense counsel chose

not to cross-examine El-Atari about the false or exaggerated statements relating to other

crimes. Appellant contends the district court’s decision to condition cross-examination of

El-Atari on evidence of the Zion crimes violated his Sixth Amendment rights. See

Appellant’s Br. 129–30.

       We hold that the district court did not abuse its discretion. To be sure, the main

reason defense counsel would have wanted to introduce Appellant’s exaggerations and

falsities was to show that everything he told El-Atari could have been false and mere

boasting, including the information he gave about Snell’s death. The Government was

                                            13
entitled to rebut that argument with information Appellant gave to El-Atari about a crime

he committed that was arguably true. Indeed, defense counsel acknowledged as much.

See J.A. 3843 (defense counsel “agree[ing]” that asking El-Atari about the other crimes

Appellant did not commit “opens up Zion . . . wide”).

      However, even if the district court erred in this regard, the error was harmless. See

United States v. Madden, 38 F.3d 747, 753 (4th Cir. 1994) (“[T]he test for harmlessness

is whether we can say with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment was not substantially

swayed by the error.” (internal quotation marks omitted)). To the extent Appellant

contends his cross-examination would have impeached El-Atari’s assertions that any lies

Appellant told him were “minor” and would have allowed the jury to assess El-Atari’s

“asserted competence as a lie detector,” Appellant’s Br. 141–42, defense counsel was

able to cross-examine El-Atari about the following:

               - El-Atari’s prior convictions for crimes involving deception;

               - El-Atari’s attempts to deceive Appellant about why and how
               long he was in prison;

               - El-Atari’s alleged failure to follow instructions from law
               enforcement;

               - El-Atari’s desire to get out of prison.

And on direct examination, El-Atari testified about the inconsistencies in Appellant’s

statements about the Snell murder, and he also testified that Appellant said he was

deliberately making false statements so their discussions would be unable to be used

against him.

                                               14
      Under these circumstances, it is difficult to fathom how cross examining El-Atari

about additional falsities Appellant relayed to him would have made much difference,

given that the jury already knew to approach Appellant’s statements to El-Atari with

caution, knowing that he deliberately (and admittedly) lied at certain points in his

jailhouse conversations. For these reasons, Appellant’s argument on this point fails.

                                            B.

                                  Rule 404(b) Evidence

      Appellant next argues that admitting evidence of the Arlington crimes and

Appellant’s electronic media, which contained violent pornography, violated Rule 404(b)

of the Federal Rules of Evidence. Rule 404(b) “prohibits evidence of other crimes,

wrongs, or acts solely to prove a defendant’s bad character, but such evidence may be

admissible for other purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.” United States v. Byers,

649 F.3d 197, 206 (4th Cir. 2011) (alterations and internal quotation marks omitted)).

This Court has articulated a four-prong test to determine the admissibility of prior-act

evidence under Rule 404(b):

             (1) The evidence must be relevant to an issue, such as an
             element of an offense, and must not be offered to establish the
             general character of the defendant. . . . (2) The act must be
             necessary in the sense that it is probative of an essential claim
             or an element of the offense. (3) The evidence must be
             reliable. And (4) the evidence’s probative value must not be
             substantially outweighed by confusion or unfair prejudice in
             the sense that it tends to subordinate reason to emotion in the
             factfinding process.

United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997). We review for abuse of

                                            15
discretion. See Byers, 649 F.3d at 206.

       The Government produced evidence of pornographic videos showing violence

against women who were sleeping, unconscious, or restrained.            This evidence was

admitted to show intent and motive, as well as modus operandi since Snell was murdered

in the early morning in her bed, and officials discovered Appellant’s semen on her bed

sheets. See, e.g., United States v. Blauvelt, 638 F.3d 281, 292 (4th Cir. 2011) (upholding

admission under Rule 404(b) of adult pornographic videotapes in order to prove identity,

motive, and intent in child pornography case); United States v. Brand, 467 F.3d 179, 197

(2d Cir. 2006) (upholding admission under Rule 404(b) of evidence that a defendant

possessed child pornography to show the defendant’s “sexual interest in children” and

thus demonstrate his intent in traveling across state lines to meet a minor (internal

quotation marks omitted)); United States v. Smith, 103 F.3d 600, 603 (7th Cir. 1996)

(explaining that a common form of evidence offered to prove who omitted a crime is

“modus operandi” evidence, which is “evidence that shows a defendant’s distinctive

method of operation”). It was not an abuse of discretion for the district court to admit

this evidence.

       As for the Arlington crimes, the circumstances surrounding the offenses against

M.N., J.T., and K.M. mere months after Snell’s murder were relevant and necessary to

demonstrate Appellant’s modus operandi, motive, and intent. These offenses resembled

Snell’s murder in the following ways: (1) they all involved assaults on women Appellant

did not know (well or at all) in their early to mid 20s; (2) they all took place in the early

morning hours; (3) the motive appeared to be sexual, as evidenced by the semen on

                                             16
Snell’s bed, the rape of J.T., and Appellant’s forcing of M.N. to get into his car; (4) the

Snell murder (based on statements Appellant made to El-Atari) and the February 27

offense both involved tying up women with cords from electronics found in the victim’s

living space; (5) the Snell murder (based on statements Appellant made to El-Atari) and

February 27 offense both involved strangling; (6) there was no semen found in Snell, but

it was found on her bedsheet, and on February 27, Appellant used a condom when raping

J.T., telling her “I’m not an idiot.” J.A. 3652.

       Although the crimes were certainly not identical, they “need not be”; rather they

“must be similar enough to be probative of intent.” United States v. Van Metre, 150 F.3d

339, 350 (4th Cir. 1998) (internal quotation marks omitted) (upholding admission under

Rule 404(b) of evidence of a prior abduction and sexual assault by the defendant of

someone other than the victim, in order to show that the defendant’s “purpose in

abducting [the victim] was, from the very start, for his own sexual gratification”). And

the time between the crimes is within the permissible realm.         See United States v.

Hadaway, 681 F.2d 214, 217 (4th Cir. 1982) (upholding evidence of conduct committed

18 months after the crime charged and explaining, “subsequent conduct may be highly

probative of prior intent. That one has thought in a particular illegal way over a period of

time is evidence that one’s thought patterns had already been so developed and were so

operating on another previous occasion”).

       Nor was the evidence more prejudicial than probative. This court has held “bad

acts evidence, admissible under Rule 404, is not barred by Rule 403 where such evidence

did not involve conduct any more sensational or disturbing than the crimes with which

                                             17
the defendant was charged.” Byers, 649 F.3d at 210 (internal quotation marks omitted).

As disturbing and sensational as the Arlington crimes were, a murder of a young woman

in her own bedroom is even more so.          Moreover, the district court gave limiting

instructions and excluded evidence of J.T.’s condition after Appellant left her on the side

of the road and her resulting health problems, any evidence about the Arlington crimes

that was not presented in the state court trial, and any evidence about Appellant’s attempt

to threaten or intimidate witnesses to the Arlington crimes. See United States v. Kibler,

667 F.2d 452, 455 (4th Cir. 1982) (recognizing the judge’s limiting instructions “[can]

reduce[] the likelihood of any prejudice”). For these reasons, Appellant’s Rule 404(b)

argument fails.

                                            C.

                                    Shoeprint Analysis

       Appellant next challenges the district court’s admission of testimony from a latent

print examiner. That expert testified that the shoes that made the impressions on the

vinyl floor in front of Snell’s wall locker were “consistent in size, design, and wear” with

the Nike shoes taken from Appellant in February 2010. J.A. 3508. Even assuming the

district court should have excluded the shoeprint analysis testimony, we can say with fair

assurance that the judgment was not substantially swayed by the error. It is simply not

probable that this evidence affected the jury’s verdict, given that the jury also knew

Appellant’s DNA was on Snell’s bed sheet, and Appellant described to El-Atari in great

detail how he killed Snell and shoved her in the wall locker. Thus, we reject this claim

under harmless error review. See United States v. Hedgepeth, 418 F.3d 411, 421 (4th Cir.

                                            18
2005).

                                             D.

                                         Voir Dire

         Finally, Appellant claims he was denied his Sixth Amendment right to an

impartial jury when, in voir dire, the jurors were not asked this question, proposed by

Appellant:

              2. The government in this case may introduce evidence that
              Jorge Torrez committed a sexual assault and murder of an
              eight-year-old girl as well as the murder of a nine-year-old
              girl.

              ...

              b. If you find Mr. Torrez guilty, then in the penalty phase of
              trial, would this evidence affect your ability to fairly weigh
              the aggravating factors against the mitigating factors and
              return a sentence of life without the possibility of release, or
              would you find it difficult to vote for life without the
              possibility of release?

J.A. 1799–1800 (bold type omitted). 6 Instead, the district court said to the jurors: “I will

tell you now that there may also be evidence introduced about other crimes that the

Government believes that [Appellant] has committed, and those would include assault,

sexual assault, and abduction, and it may include child victims.” Id. at 1928. The court

did not, however, mention murder.


         6
         Although this is, for all intents and purposes, a challenge to Appellant’s sentence,
see Appellant’s Br. 179 n.73, we address it here because the voir dire occurred at the
outset of trial, and Appellant contends the jurors were not “qualified to serve in a capital
case,” see id. at 178.


                                             19
       The district court did not abuse its discretion in rejecting Appellant’s proposed

voir dire question.   See Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981)

(“[F]ederal judges [are] accorded ample discretion in determining how best to conduct

the voir dire.”). In United States v. Caro, we explained:

              district courts must conduct “adequate voir dire” to enable
              them “to remove prospective jurors who will not be able
              impartially to follow the court’s instructions and evaluate the
              evidence.” Because “[a]ny juror who would impose death
              regardless of the facts and circumstances of conviction cannot
              follow the dictates of law,” the Supreme Court has held that
              “[a] defendant on trial for his life must be permitted on voir
              dire to ascertain whether his prospective jurors function under
              such misconception.”

597 F.3d 608, 614 (4th Cir. 2010) (quoting Rosales-Lopez, 451 U.S. at 188; Morgan v.

Illinois, 504 U.S. 719, 735–36 (1992)).

       There, we upheld the district court’s choice to ask, “Are your feelings about the

death penalty such that you would always vote for a sentence of death as a punishment

for someone convicted of a death penalty eligible offense, regardless of the facts and

circumstances?,” Caro, 597 F.3d at 615, rather than “Do you feel that anyone convicted

of intentional and pre-meditated murder deserves to get the death penalty? If not, what

kind of case does or does not deserve the death penalty?,” id. at 614 (emphasis supplied).

We explained that the question asked by the district court “adequately enabled the district

court to weed out prospective jurors irrevocably committed to imposing the death

penalty.” Id. at 615 (citing Witherspoon v. Illinois, 391 U.S. 510, 522 n.21 (1968)

(excluding a juror who is “irrevocably committed . . . to vote against the penalty of death

regardless of the facts and circumstances” does not violate the Sixth Amendment)); see

                                            20
also United States v. Tipton, 90 F.3d 861, 878 (4th Cir. 1996) (finding satisfactory the

questions of whether jurors “ha[d] strong feelings in favor of the death penalty” and if so,

whether they “would always vote to impose the death penalty in every case where a

defendant is found guilty of a capital offense”). Indeed, we have rejected “the suggestion

that the trial court was required to ask potential jurors whether they would automatically

impose the death penalty in rape-murder cases because . . . crime-specific voir dire

questions” are not required. Oken v. Corcoran, 220 F.3d 259, 266 n.4 (4th Cir. 2000)

(emphasis supplied) (citing Morgan, 504 U.S. at 728). The district court’s question in

this case was much more specific than the questions we found sufficient in Oken and

Caro. Therefore, Appellant’s argument on this point fails as well.

                                            E.

                                        Conclusion

       For the foregoing reasons, we hold Appellant’s challenges to his conviction to be

without merit and therefore affirm his conviction.

                                            IV.

                              Challenges to Death Sentence

       In reviewing a capital sentence, we must (1) “address all substantive and

procedural issues raised on the appeal of a sentence of death”; (2) “consider whether the

sentence of death was imposed under the influence of passion, prejudice, or any other

arbitrary factor”; and (3) “consider . . . whether the evidence supports the special finding

of the existence of an aggravating factor required to be considered under [18 U.S.C.

§] 3592.” 18 U.S.C. § 3595(c)(1). For any error in the sentencing proceeding, the

                                            21
government must “establish[] beyond a reasonable doubt that the error was harmless.”

Id. § 3595(c)(2).

                                               A.

                     Use of Post-Offense Conduct as Statutory Aggravator

       We    first    consider   Appellant’s   argument    that   the   death   penalty was

unconstitutionally imposed because it was based on conduct and convictions that

occurred after the Snell murder. We review this issue de novo. See United States v.

Runyon, 707 F.3d 475, 502 (4th Cir. 2013).

                                               1.

       Under the Federal Death Penalty Act (“FDPA”), once the jury finds the defendant

guilty of an offense for which a death sentence is provided, the trial proceeds to the

penalty phase. In a homicide case, the jury must make certain determinations before it

can impose the death penalty. Some courts, including the district court in this case,

choose to bifurcate the penalty phase into an “eligibility” phase and a “selection” phase --

which, along with the guilt phase, result in an overall trifurcated proceeding. 7

       In the eligibility phase, the jury must find beyond a reasonable doubt that the

       7
         By its plain language, the FDPA does not require a trifurcated proceeding; rather,
it requires, after the guilt phase, “a separate sentencing hearing” and thus a bifurcated
proceeding at minimum. 18 U.S.C. § 3593(b). Courts addressing the issue, however,
have held that this language does not preclude a bifurcated sentencing hearing resulting
in an overall trifurcated proceeding. See United States v. Fell, 531 F.3d 197, 240 (2d Cir.
2008) (“the central point of that phrase[, ‘a separate sentencing hearing,’] is that the
sentencing decision should be separated from the guilt phase -- not that the sentencing
phase must necessarily take place during one uninterrupted hearing.”); accord United
States v. Bolden, 545 F.3d 609, 618 (8th Cir. 2008).


                                               22
defendant:

             (A) intentionally killed the victim;

             (B) intentionally inflicted serious bodily injury that resulted
             in the death of the victim;

             (C) intentionally participated in an act, contemplating that the
             life of a person would be taken or intending that lethal force
             would be used in connection with a person, other than one of
             the participants in the offense, and the victim died as a direct
             result of the act; or

             (D) intentionally and specifically engaged in an act of
             violence, knowing that the act created a grave risk of death to
             a person, other than one of the participants in the offense,
             such that participation in the act constituted a reckless
             disregard for human life and the victim died as a direct result
             of the act[.]

18 U.S.C. § 3591(a)(2)(A)–(D). Also in the eligibility phase, the jury must find beyond a

reasonable doubt the existence of at least one of sixteen statutory aggravating factors.

See 18 U.S.C. § 3593(e); id. § 3592(c)(1)–(16).

      Once the above requirements are satisfied, the defendant is eligible for the death

penalty, and the proceedings continue in the selection phase, where jurors consider the

presence of aggravating and mitigating factors and decide whether to recommend the

death penalty. The jury must determine whether aggravating factors, both statutory and

non-statutory, “sufficiently outweigh” the mitigating factors presented by the defendant

to justify a death sentence, “or, in the absence of a mitigating factor, whether the

aggravating factor or factors alone are sufficient to justify” that sentence. 18 U.S.C.

§ 3593(e).



                                            23
       In the case at hand, Appellant’s murder conviction provides for a sentence of

death. See 18 U.S.C. § 1111 (providing, “Whoever is guilty of murder in the first degree

shall be punished by death or by imprisonment for life”). During the eligibility phase, the

jurors found that each of the intent requirements was met with respect to Appellant’s

murder of Snell, and it also found that two statutory aggravating factors were satisfied,

based on Appellant’s Arlington crime convictions:

          • The defendant “has previously been convicted of a Federal or
            State offense punishable by a term of imprisonment of more
            than 1 year, involving the use or attempted or threatened use
            of a firearm . . . against another person”; and

          • The defendant “has previously been convicted of 2 or more
             . . . State offenses, punishable by a term of imprisonment of
            more than 1 year, committed on different occasions,
            involving the infliction of, or attempted infliction of, serious
            bodily injury or death upon another person.”

18 U.S.C. § 3592(c)(2), (4); see J.A. 5233–34. Finally, during the selection phase, the

jury decided that the following non-statutory aggravating factors were proven:

          • Appellant killed Krystal Tobias and Laura Hobbs on May 8,
            2005, stabbing Krystal 11 times and Laura approximately 20
            times, including in both eyes.

          • Appellant sexually assaulted Laura Hobbs on May 8, 2005.

          • Appellant stalked females with the intent of sexually
            assaulting them during the late night hours of February 4 and
            the early morning hours of February 5, 2010, in Arlington
            County, Virginia.

          • On February 5, 2010, Appellant purchased a Glock
            semiautomatic pistol to use in abducting, robbing, and
            sexually assaulting female victims.


                                            24
• On February 10, 2010, Appellant abducted M.N. at gunpoint,
  brandished a knife, robbed her, and tried to force her into his
  Dodge Durango.

• On February 27, 2010, Appellant abducted K.M. and J.T. at
  gunpoint and demanded money from them. He then forced
  them inside K.M.’s house, where he tied them up.

• On February 27, 2010, Appellant grabbed J.T. and forced her
  at gunpoint out of the house into his Dodge Durango. After
  driving for a while, he forced her to perform oral sex, bound
  her hands, raped her, and again forced her to perform oral
  sex. He then bound her mouth and head with tape and pushed
  her to the floor.

• On February 27, 2010, Appellant drove with J.T. on the floor
  of his vehicle and stopped in a wooded area. He again forced
  J.T. to perform oral sex on him.

• On February 27, 2010, Appellant attempted to kill J.T. by
  strangulation (wrapping a scarf around her neck and
  tightening it). J.T. lost consciousness. Appellant dumped her
  in the woods, but J.T. regained consciousness and was able to
  flag down a car. She was seriously injured.

• On February 27, 2010, Appellant was arrested. He was found
  in possession of a stun gun and tape in his vehicle, along with
  J.T.’s personal property.

• While incarcerated and awaiting trial for the Arlington
  crimes, Appellant plotted to have the victim witnesses against
  him killed.

• While incarcerated and awaiting trial for the Arlington
  crimes, Appellant possessed a “shank,” commonly used by
  prisoners to kill others.

• Appellant has displayed no remorse for Snell’s murder;
  rather, he bragged about it.

• Appellant “poses a future danger to others in that he is likely
  to commit, and direct others to commit, additional acts of

                                25
             violence in any setting, including acts of violence and threats
             of violence against witnesses who have testified against him.”

          • Appellant caused injury, harm, and loss to the victim and
            victim’s family and friends, “as evidenced by the victim’s
            personal characteristics and by the impact of her death upon
            the victim’s family and friends.”

J.A. 5235–38. Despite the fact that Appellant chose to present no mitigating evidence,

seven of 12 jurors found one mitigating factor: that Appellant “was under the age of 18 at

the time Laura Hobbs and Krystal Tobias were killed.” Id. at 5239.

                                            2.

      Appellant contends he was not actually eligible for the death penalty, as the only

statutory aggravating factors found by the jury “cannot qualify as ‘previous convictions’

because they occurred after commission of the [capital] offense.” Appellant’s Br. 15

(capitalization omitted). The district court, however, rejected Appellant’s motion to

strike these factors, concluding that any predicate convictions occurring prior to

sentencing would satisfy § 3592(c)(2) and (c)(4).

                                            a.

      This court addressed and rejected this very argument in United States v. Higgs.

See 353 F.3d 281 (4th Cir. 2003). Dustin Higgs was convicted of three counts of first-

degree murder committed in the perpetration of kidnapping, three counts of first-degree

premeditated murder, three counts of kidnapping resulting in death, and three counts of

using a firearm during and in relation to a crime of violence. See id. at 289. All charges

stemmed from events of one night, when Higgs and a companion forced three women

into a car, drove them to a federal park area, and Higgs’s companion shot each of them to
                                           26
death. See id. at 289–90. The jury found three statutory aggravators supporting a death

sentence on the kidnapping and murder counts (multiple killings in a single criminal

episode, a prior firearm conviction, and a prior drug conviction) and an additional

aggravator (death during commission of another crime) for the murder counts. See id. at

300. Higgs was ultimately sentenced to nine death sentences under the FDPA, one for

each murder and kidnapping count, plus a 45-year sentence for the firearm offenses. See

id. at 295.

       One of the myriad arguments Higgs raised was that his drug conviction, rendered

after the murder but before sentencing, was not actually a “previous[]” conviction that

could qualify as a statutory aggravator. See 18 U.S.C. § 3592(c)(12) (listing as an

aggravating factor, “The defendant had previously been convicted of violating title II or

III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 for which a

sentence of 5 or more years may be imposed” (emphasis supplied)). The district court

denied Higgs’s motion to strike this aggravator. See Higgs, 353 F.3d at 317.

       We affirmed, holding, “[T]he § 3592(c)(12) statutory aggravating factor

encompasses all predicate convictions occurring prior to sentencing, even those occurring

after the conduct giving rise to the capital charges.” Id. at 318 (emphasis in original).

We explained:

              Although it easily could have done so, Congress did not
              specify that either the prior offense or conviction had to occur
              before the death penalty offense. On the contrary, the entire
              section speaks in terms of those things that must be
              considered when the death sentencing hearing is conducted
              and the petit jury begins its weighing process. And, we note
              that where Congress has intended a different practice in other

                                            27
              circumstances, it has made that intent clear.

Higgs, 353 F.3d at 318 (quoting 21 U.S.C. § 841(b)(1)(C) (providing for an enhanced

penalty “[i]f any person commits such a violation after a prior conviction for a felony

drug offense has become final”); 18 U.S.C. § 922(g)(1) (stating “[i]t shall be unlawful for

any person . . . who has been convicted . . . to [commit specified violations]”) (emphases

supplied)).

       The district court in this case relied heavily on Higgs in concluding that (c)(2) and

(c)(4), which use very similar language, 8 must also encompass any convictions occurring

before sentencing. We agree that we are bound by Higgs on this point. We see no

legitimate reason to distinguish (c)(12) from (c)(2) and (c)(4), all of which contain the

phrase “previously been convicted.” And Appellant makes no attempt to distinguish the

aggravators based on the words “has” and “had,” as that argument is also foreclosed by

Higgs. See 353 F.3d at 319 (concluding the “grammatical difference” between has and

had “is far too tenuous a basis upon which to conclude that Congress intended that the

prior serious drug offense aggravating factor for homicide was to be treated differently

than every other prior conviction aggravating factor”). Therefore, we are constrained to

conclude that convictions occurring after the murder but before capital sentencing qualify

as “previous[]” convictions under (c)(2) and (c)(4). See Mentavlos v. Anderson, 249 F.3d

301, 312 n.4 (4th Cir. 2001) (“[A] panel of this court cannot overrule, explicitly or


       8
        Subsections (c)(2) and (c)(4) require that the defendant “has previously been
convicted,” whereas (c)(12) requires he “had previously been convicted.”


                                            28
implicitly, the precedent set by a prior panel of this court. Only the Supreme Court or

this court sitting en banc can do that.”).

                                             b.

       Appellant’s attempts to distinguish Higgs are unavailing. To begin, he claims that

the Higgs court “was not asked to decide the constitutional arguments implicated in this

case, so [it] cannot be said to have decided them.” Appellant’s Br. 34–35. While the

nuanced ex post facto, Eighth Amendment, and Fifth Amendment arguments raised here

(explained in depth, infra) were not raised in Higgs, we nonetheless cannot ignore its

conclusion that as a matter of statutory interpretation, the (c)(12) aggravating factor

encompasses all predicate convictions occurring prior to sentencing.

       Appellant also contends the district court failed to recognize two “critical

distinctions” between Higgs and this case. Appellant’s Br. 35. We address each in turn.

                                             i.

       First, Appellant contends that at the time of the trial in Higgs, the Supreme Court

had not yet decided Ring v. Arizona, 536 U.S. 584, 609 (2002), and thus, “statutory

aggravators were not viewed as elements of the offense,” so post-offense conduct was

“not functioning as an element of capital murder.” Appellant’s Br. 35. Ultimately,

however, the distinction between elements and sentencing factors does not directly affect

whether Higgs’ interpretation of § 3592(c)(12) applies to this case.

       As a matter of background, in Ring, the Supreme Court held that statutory

aggravators that increase the punishment for a crime “operate as ‘the functional

equivalent of an element of a greater offense,’ [and] the Sixth Amendment requires that

                                             29
they be found by a jury.” 536 U.S. at 609 (quoting Apprendi v. New Jersey, 530 U.S.

466, 494 n.19 (2000)); see also id. at 605 (“If the legislature defines some core crime and

then provides for increasing the punishment of that crime upon a finding of some

aggravating fact, the core crime and the aggravating fact together constitute an

aggravated crime, just as much as grand larceny is an aggravated form of petit larceny.

The aggravating fact is an element of the aggravated crime.” (alterations omitted)

(quoting Apprendi, 530 U.S. at 501 (Thomas, J., concurring))).

       Before Ring, however, the Supreme Court had concluded that the fact of a prior

conviction which increases the maximum penalty for a crime is not an element of a

separate crime; rather, it is a “penalty provision” that merely “authorizes an enhanced

penalty.” Almendarez–Torres v. United States, 523 U.S. 224, 226 (1998); see also Jones

v. United States, 526 U.S. 227, 248 (1999) (“[T]he precise holding [in Almendarez–

Torres] that recidivism increasing the maximum penalty need not be so charged . . .

rested in substantial part on the tradition of regarding recidivism as a sentencing factor,

not as an element to be set out in the indictment.”). The Apprendi Court explained,

              Both the certainty that procedural safeguards attached to any
              “fact” of prior conviction, and the reality that Almendarez-
              Torres did not challenge the accuracy of that “fact” in his
              case, mitigated the due process and Sixth Amendment
              concerns otherwise implicated in allowing a judge to
              determine a “fact” increasing punishment beyond the
              maximum of the statutory range.

530 U.S. at 488 (footnote omitted). And Ring itself made clear that because Ring’s

sentence did not involve an aggravating circumstance related to a prior conviction, he did

“not challenge Almendarez–Torres.” Ring, 536 U.S. at 597 n.4. Thus, Ring explicitly

                                            30
left unresolved the question of whether prior convictions could serve as functional

elements of capital murder.

       Against that backdrop, the defendant in Higgs asked this court to find his

indictment fatally flawed in part because it did not list the prior conviction aggravating

factors applicable to his death sentence. See Higgs, 353 F.3d at 300. We recognized,

however, that “with the exception of the fact of prior convictions, those intent and

aggravating factors which the government intends to rely upon to render a defendant

death-eligible under the FDPA are the functional equivalent of elements of the capital

offenses and must be charged in the indictment, submitted to the petit jury, and proved

beyond a reasonable doubt.” Id. at 298 (emphasis supplied). Thus, we held that Higgs’s

indictment was not defective even though the prior conviction aggravators were not

alleged therein: they were simply not the “functional equivalent of elements of the capital

offenses.” Id. at 298; see also id. at 301–02.

       We also discussed the impact of Ring, which had been decided during the appeal

of Higgs’s convictions and sentences. Although we recognized “Ring [may have] placed

on shaky ground the Almendarez-Torres proposition that prior convictions that increase

the maximum penalty need not be alleged in the indictment,” we nonetheless concluded

that “[u]ntil the Supreme Court overrules Almendarez–Torres, we are bound to follow its

holding.” Id. at 303; see also United States v. Bullette, 854 F.3d 261, 264 n.2 (4th Cir.

2017) (“Although the Supreme Court has expressed doubt about the continuing validity

of Almendarez-Torres, it remains good law, and we may not disregard it unless and until



                                             31
the Supreme Court holds to the contrary.” (internal quotation marks omitted)). 9

       On Appellant’s view, Higgs concluded that the prior conviction aggravators in that

case functioned as “sentencing factors” only because other valid aggravating factors

existed to make Higgs death eligible (i.e., murder during the commission of another

offense). Appellant’s Br. 37. In Appellant’s exceedingly rare case, though, another valid

aggravator did not exist, which Appellant says makes all the difference. Whatever the

merits of Appellant’s claim in the abstract, it need not detain us here, for the Government

in this case did list the two prior conviction statutory aggravators in the indictment, and

the jury found the existence of those aggravators beyond a reasonable doubt. Thus, the

only issue for us is whether to apply Higgs’ interpretation of § 3592(c)(12) to (c)(2) and

(c)(4). That interpretive decision, holding that prior conviction statutory aggravators --

like § 3592(c)(12) -- include conduct occurring after the capital offense but before

sentencing, depended on an analysis of legislative intent and language in other statutory

       9
          To be sure, Almendarez-Torres’s holding has become “shak[ier]” in the years
since Higgs. See Alleyne v. United States, 133 S. Ct. 2151, 2160 & n.1 (2013) (holding
that the Sixth Amendment provides defendants with the right to a jury determination of
facts increasing the statutory minimum sentence, but declining to revisit Almendarez-
Torres, because the “parties d[id] not contest that decision’s vitality”); United States v.
McDowell, 745 F.3d 115, 124 (4th Cir. 2014) (“[T]he Supreme Court’s recent
characterizations of the Sixth Amendment are difficult, if not impossible, to reconcile
with Almendarez–Torres’s lonely exception to Sixth Amendment protections.” (citing
Alleyne, 133 S. Ct. at 2160)); see also Shepard v. United States, 544 U.S. 13, 28 (2005)
(Thomas, J., concurring) (“The parties do not request it here, but in an appropriate case,
this Court should consider Almendarez-Torres’ continuing viability. Innumerable
criminal defendants have been unconstitutionally sentenced under the flawed rule of
Almendarez-Torres, despite the fundamental imperative that the Court maintain absolute
fidelity to the protections of the individual afforded by the notice, trial by jury, and
beyond-a-reasonable-doubt requirements.” (internal quotation marks omitted)).


                                            32
schemes. While Higgs may have justified the effects of its interpretive decision by

referencing the Almendarez-Torres exception, 353 F.3d at 319 n.9, its reasoning did not

depend solely on treating prior conviction statutory aggravators as sentencing factors

rather than elements. Thus, Higgs’ interpretation of § 3592(c)(12) applies to the other

prior conviction aggravators in § 3592(c), including (c)(2) and (c)(4), regardless of

whether we treat prior conviction aggravators as sentencing factors or elements.

                                            ii.

      Second, Appellant notes that in Higgs, the sentencing proceeding was bifurcated,

rather than trifurcated. However, there is no indication that Higgs’s conclusion hinged on

the fact that all of the aggravators were considered together in one proceeding.

Appellant’s argument on this point assumes that the prior convictions were treated only

as selection factors, not as statutory aggravators bearing on eligibility. This assumption

is wrong. While it is true that Higgs stated -- in the context of Higgs’s Fifth Amendment

indictment challenge -- that as long as one valid statutory aggravator is alleged in the

indictment, any additional factors “can be fairly viewed as sentencing considerations,” it

nonetheless analyzed the post-offense conduct statutory argument as if Higgs’s prior drug

conviction were a statutory aggravator. Higgs, 353 F.3d at 299, 317–19. Only after this

analysis did this court provide an alternative reason for affirmance: there were other

statutory aggravators present. Therefore, this argument does not render Higgs inapposite.

                                            c.

      Appellant’s remaining constitutional challenges to his death sentence are

foreclosed by the language and operation of the FDPA and our precedent.

                                           33
                                             i.

                                   Ex Post Facto Claim

       Appellant contends that “[a]llowing an element of the offense to occur post-

offense and retroactively render a prior murder . . . capital murder would violate ex post

facto principles.”   Appellant’s Br. 29.      Article I, section 9 of the United States

Constitution provides, “No . . . ex post facto Law shall be passed.” U.S. Const. art. I, § 9,

cl. 3. The ex post facto clause “looks to the standard of punishment prescribed by a

statute [and] forbids the application of any new punitive measure to a crime already

consummated, to the detriment or material disadvantage of the wrongdoer.” Lindsey v.

Washington, 301 U.S. 397, 401 (1937); see also id. (“It could hardly be thought that, if a

punishment for murder of life imprisonment or death were changed to death alone, the

latter penalty could be applied to homicide committed before the change.”).

       Nothing about § 3592(c)(2) or § 3592(c)(4) changed between the time of Snell’s

murder and the time of Appellant’s sentencing. Thus, this issue turns on whether the

district court’s interpretation of § 3592(c)(2) and (c)(4) can function as a “Law” under

the ex post facto clause. Appellant cites Bouie v. City of Columbia for the proposition

that it can; however, Bouie reasoned that when an “unforeseeable” construction of a

criminal statute is applied retroactively to subject someone to punishment for past

conduct, the ex post facto clause, as well as due process concerns, are implicated. 378

U.S. 347, 353–55 (1964). It was certainly not “unforeseeable” that Appellant’s murder

could be elevated to capital murder based on a subsequent qualifying conviction -- that is

precisely what happened in Higgs. Cf. Glenn v. Johnson, 761 F.2d 192, 195 (4th Cir.

                                             34
1985) (“Since the interpretation of the statute was not only foreseeable but indeed was

inescapable, the plaintiffs simply have no case.”).

       Further, Appellant’s attempt to rely on Higgs on this point is unfounded. We

decided in Higgs whether the “multiple killings in a single criminal episode” aggravator

was properly applied, since that aggravator was not added to the FDPA until after the

murders at issue in Higgs. We found an ex post facto violation occurred because the

addition of that subsection of the statute “alter[ed] the elements of the offense or the

quantum of punishment” and clearly “increase[d] the punishment for criminal acts” after

the conduct was committed. 353 F.3d at 301. Here, in contrast, the aggravators which

ultimately made Appellant death-eligible were part of the FDPA before the Snell murder.

Thus, Appellant’s ex post facto argument fails.

                                             ii.

                                Eighth Amendment Claim

       Appellant also claims the use of post-offense conduct to make a defendant eligible

for the death penalty violates the Eighth Amendment, which provides that “cruel and

unusual punishments [shall not be] inflicted.” U.S. Const. amend. VIII. The Supreme

Court has explained that to pass constitutional muster, the aggravating circumstance that

serves to make a defendant death eligible must meet two requirements: first, it “must

genuinely narrow the class of persons eligible for the death penalty”; and second, it “must

reasonably justify the imposition of a more severe sentence on the defendant compared to

others found guilty of murder.” United States v. Caro, 597 F.3d 608, 623 (4th Cir. 2010)

(quoting Zant v. Stephens, 462 U.S. 862, 877 (1983)).

                                            35
       First, using post-offense convictions would narrow the class of defendants

convicted of murder. Although Appellant argues that the previous conviction aggravators

can expand the class of murderers subject to capital punishment if the offender later

commits another crime, that is not the focus of the Eighth Amendment analysis. Instead,

the focus is on whether the class of offenders is narrowed from all murderers, not the

class of offenses. Cf. Higgs, 353 F.3d at 318 (suggesting prior conviction aggravators

like (c)(12) “do[] not concern matters directly related to the death penalty offense [but]

[r]ather [are] concerned with the characteristics of the offender as of the time that he is

sentenced”).   And although this interpretation expands the class of offenders with

previous convictions, it nonetheless narrows the class of all murderers to only murderers

with previous convictions.

       Second, as to whether § 3592(c)(2) and (c)(4) reasonably justify the imposition of

a more severe sentence on the defendant compared to others found guilty of murder, see

Caro, 597 F.3d at 623, we have explained, “one can hardly dispute the congressional

wisdom that recidivism justifies harsher sentencing. Defendants with significant criminal

histories demonstrate unwillingness or inability to follow the law. This justifies imposing

harsher sentences to provide increased retribution and deterrence,” id. at 623–24.

       A more challenging aspect of this inquiry is whether the statute imposes the death

penalty on these recidivists in a non-arbitrary and unambiguous way. Along these lines, a

court “must first determine whether the statutory language defining the [aggravating]

circumstance is itself too vague to provide any guidance to the sentencer.” Tuilaepa v.

California, 512 U.S. 967, 972 (1994) (quoting Arave v. Creech, 507 U.S. 463, 471

                                            36
(1993)); see also Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion of Stewart,

Powell, and Stevens, JJ.) (The “discretion . . . afforded a sentencing body . . . must be

suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious

action.”).

        We acknowledge that permitting post-offense convictions to qualify as statutory

aggravators may allow for prosecutorial manipulation of the timing of charges in order to

make an earlier offense death eligible. But Appellant presents no such evidence in this

case. Moreover, prosecutors have “wide discretion over whether, how, and when to bring

a case,” United States v. Segal, 495 F.3d 826, 833 (7th Cir. 2007) (internal quotation

marks omitted), and Appellant’s argument is not strong enough to overcome our holding

in Higgs that (c)(12) -- and by extension (c)(2) and (c)(4) -- encompasses all offenses for

which the defendant has been convicted at the time of sentencing, regardless of whether

the offense or conviction occurred after the capital offense.

       And as to whether (c)(2) and (c)(4) are unconstitutionally vague, Higgs again

provides the answer. Examining the language and structure of the FDPA, we explained

that “Congress did not specify that either the prior offense or conviction had to occur

before the death penalty offense.” Higgs, 353 F.3d at 318. Rather, “where Congress has

intended a different practice in other circumstances, it has made that intent clear.” Id.

(citing 21 U.S.C. § 841(b)(1)(C); 18 U.S.C. § 922(g)(1)). Holding at this juncture that

(c)(2) and (c)(4) are unconstitutionally vague would fly in the face of this analysis and




                                             37
Higgs’s ultimate conclusion. 10

                                             iii.

                                  Fifth Amendment Claim

       Finally, Appellant claims his sentence violates the Fifth Amendment because it

fails to provide fair notice and violates double jeopardy guarantees.              The Fifth

Amendment provides in relevant part, “No person shall be . . . subject for the same

offence to be twice put in jeopardy of life or limb; . . . nor [shall he] be deprived of life,

liberty, or property, without due process of law.” U.S. Const. amend. V. The Due

Process Clause prohibits the Government from “taking away someone’s life, liberty, or

property under a criminal law so vague that it fails to give ordinary people fair notice of

the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Beckles

v. United States, 137 S. Ct. 886, 892 (2017).

       These arguments also fail. Appellant cannot claim he had no notice of potential

consequences of his actions. Section 1111 of Title 18, which provides for a penalty of

death for first-degree murder, did not change between Snell’s murder and Appellant’s

sentencing, nor did (c)(2) and (c)(4). And the district court interpreted these provisions in

       10
          Although we recognize that we are constrained by Higgs on this issue, we
nonetheless observe the merit of Appellant’s statutory argument. Unbound by Higgs, one
could read the phrase “has previously been convicted” in (c)(2) and (c)(4) as ambiguous
and invoke the rule of lenity. And notwithstanding the lingering viability of Almendarez-
Torres, the rule of lenity need not apply only to elements of a conviction, but can also
apply to sentencing factors. See United States v. Hall, 972 F.2d 67, 69 (4th Cir. 1992)
(“Under the rule of lenity any criminal statute, including a sentencing provision, must be
construed in favor of the accused and against the government if it is ambiguous.”
(emphasis supplied)).


                                             38
a manner consistent with the Higgs decision, which was issued more than five years

before Snell’s murder.

       As for double jeopardy, there are no such concerns here. The imposition of a

death sentence was not above the authorized statutory maximum punishment, and any

implication that the Arlington crimes “bec[a]me[] a tail which wags the dog of the

substantive offense” bears on the issue of prosecutorial misconduct, which was not raised

below or in this appeal. Appellant’s Br. 33 (quoting Witte v. United States, 515 U.S. 389,

403 (1995)).

                                            B.

               Whether the Arlington Crimes Satisfy § 3592(c)(2) and (c)(4)

       We next address Appellant’s argument that the Arlington crimes do not qualify as

previous convictions under 18 U.S.C. § 3592(c)(2) and (c)(4). This argument has two

parts: first, whether the district court should have applied the categorical approach in the

eligibility phase; and second, whether the Arlington crimes satisfy the elements of (c)(2)

and (c)(4). We review these issues de novo. See United States v. Ritchie, 858 F.3d 201,

209 (4th Cir. 2017).     Because only one statutory aggravator is necessary to render

Appellant death eligible, we will focus on (c)(2), which again provides: “the defendant

has previously been convicted of a Federal or State offense punishable by a term of

imprisonment of more than 1 year, involving the use or attempted or threatened use of a

firearm (as defined in [18 U.S.C. § 921]) against another person.”




                                            39
                                              1.

                                   Categorical Approach

       Appellant argues that Congress contemplated application of the categorical

approach to § 3592(c)(2) and (c)(4) when it enacted the FDPA. Appellant’s argument,

however, contravenes the language and purpose of the FDPA, and, once again, is in

tension with Higgs.

                                              a.

       The categorical approach was first announced in Taylor v. United States, 495 U.S.

575, 599–602 (1990). There, the Court held that 18 U.S.C. § 924(e)(2)(B)(ii) -- which

provided a sentencing enhancement for a person who “has three previous convictions” for

a “violent felony” offense, in that case, “burglary” -- “generally requires the trial court to

look only to the fact of conviction and the statutory definition of the prior offense.”

Taylor, 495 U.S. at 600–02 (footnote omitted).

       Determining whether to apply the categorical approach requires an exercise in

statutory interpretation. See Ritchie, 858 F.3d at 209. We must decide whether the

provision at issue refers “to an element of a . . . statute,” in which case we use the

categorical approach, or “to the factual circumstances surrounding commission of the

crime on a specific occasion,” in which we use the circumstance-specific approach.

Nijhawan v. Holder, 557 U.S. 29, 33 (2009). However, the “interpretive difficulty” is

that “in ordinary speech words such as ‘crime,’ felony,’ ‘offense,’ and the like sometimes

refer to a generic crime, . . . and sometimes refer to the specific acts in which an offender

engaged on a specific occasion.” Id. at 33–34.

                                             40
       Higgs addressed the question of whether courts must apply the categorical

approach in determining whether a prior conviction involved the use of a firearm under

§ 3592(c)(2), meaning the court would “only look to the fact of conviction and the

statutory definition of the crime of conviction to determine whether a firearm was

involved, not to the particular facts of the case.” Higgs, 353 F.3d at 316 (citing Taylor,

495 U.S. at 588–89). Because use of a firearm is not a specific element of the Maryland

offenses for which Higgs was convicted, and because he did not specifically admit the

use of a firearm, Higgs claimed they should not qualify. See id.

       We rejected this argument for two reasons. First, we explained that because the

language of § 3592(c)(2) “quite plainly requires only that the previous conviction

‘involv[e] the use or attempted or threatened use of a firearm,’ it authorizes and likely

requires the court to look past the elements of the offense to the offense conduct.” Higgs,

353 F.3d at 316 (emphasis supplied). Second, we observed that while the Supreme Court

in Taylor “noted that the categorical approach was proper to avoid ‘the practical

difficulties and potential unfairness of a factual approach,’ the Court has made it clear

that an individualized determination is required in the death penalty context.” Id. at 317

(citations omitted) (emphasis in original) (quoting Taylor, 495 U.S. at 601).

       Since Higgs, the Eighth Circuit has concluded the categorical approach should not

apply, this time to § 3592(c)(4). See United States v. Rodriguez, 581 F.3d 775, 805–07

(8th Cir. 2009). Rodriguez noted that the district court in that case agreed with Higgs that

the word “involving” “suggests fact-finding beyond” the categorical approach. Id. at

805. But it recognized that other courts apply the categorical approach to criminal

                                            41
statutes containing the word “involves,” ultimately concluding, “[T]he meaning of

‘involv[es]’ does not resolve the issue.” Id. at 806 (comparing United States v. McCall,

439 F.3d 967, 970 (8th Cir. 2006) (en banc) (applying categorical approach to the

residual clause in § 924(e)(2)(B)(ii): “otherwise involves conduct that presents a serious

potential risk of physical injury to another”), overruled by Begay v. United States, 553

U.S. 137 (2008), with Nijhawan, 557 U.S. at 32 (declining to apply the categorical

approach to statute reaching a conviction that “involves fraud or deceit in which the loss

to the victim or victims exceeds $10,000” (quoting 8 U.S.C. § 1101(a)(43)(M)(i))

(emphasis supplied)).

      Rather than relying on the term “involving,” the court turned to examine the

structure and language of § 3592(c)(4) and the FDPA. See Rodriguez, 581 F.3d at 806.

First, Rodriguez acknowledged that, unlike sentencing enhancements under the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), pursuant to which courts routinely

employ the categorical approach, when a § 3592(c) statutory aggravator is proven under

the FPDA, a death sentence does not automatically result; the defendant is rather deemed

eligible for a death sentence. See 581 F.3d at 806. The jury still must weigh any

aggravating factors against mitigating factors, an individualized balancing that the ACCA

does not contemplate. See id.

      Next, the FDPA “mandates a fact-intensive process in death-eligible proceedings.”

Rodriguez, 581 F.3d at 806. At the penalty phase, the FDPA allows for the introduction

of oral testimony, evidence of the effect of the offense on the victim and the victim’s

family, and a victim impact statement identifying evidence of the extent and scope of

                                           42
injury and loss. See id. But factual inquiry is not permitted under the ACCA. See

Taylor, 495 U.S. at 601 (noting that, under the ACCA, “the practical difficulties and

potential unfairness of a factual approach are daunting”). Indeed, unlike the ACCA

context, during the penalty phase of an FDPA matter, a Presentence Report is not

prepared, but rather, “information may be presented as to any matter relevant to the

sentence, including any mitigating or aggravating factor permitted or required to be

considered under section 3592.”       Rodriguez, 581 F.3d at 806 (quoting § 3593(c)).

Moreover, “Taylor prohibits relying on witness testimony in ACCA cases; the FDPA

expressly permits witnesses to testify.” Id. at 807. Based on these reasons, the Eighth

Circuit joined this court in rejecting the categorical approach to an FDPA prior

conviction aggravator. See id. n.13 (noting its decision comports with Higgs).

       Some district courts have followed Rodriguez’s reasoning and have held that the

categorical approach is inappropriate as applied to § 3592(c)(2). See, e.g., United States

v. Con-ui, No. 3:13-cr-123, 2017 WL 783437, at *11–12 (M.D. Pa. Mar. 1, 2017)

(allowing the circumstance-specific approach because “[t]he objective of the sentencing

stage of a capital case is to allow the jury a full appraisal of the defendant,” and “the jury

should receive ‘as much information as possible when it makes the sentencing decision’”

(quoting United States v. Lujan, 603 F.3d 850, 858 (10th Cir. 2010); Gregg v. Georgia,

428 U.S. 153, 203–04 (1976)); United States v. Basciano, 763 F. Supp. 2d 303, 348

(E.D.N.Y. 2011) (finding Rodriguez to be “well reasoned, . . . persuasive, and [to] appl[y]

equally to § 3592(c)(2)”), aff’d on other issues, 634 F. App’x 832 (2d Cir. 2015); United

States v. Anh The Duong, No. CR-01-20154, 2010 WL 275058, at *3 (N.D. Cal. Jan. 14,

                                             43
2010) (“This Court agrees with the Eighth Circuit’s analysis in Rodriguez, which

comports with the Fourth Circuit’s in Higgs.” (internal quotation marks omitted)). One

district court held likewise before Rodriguez or Higgs. See United States v. Chong, 98 F.

Supp. 2d 1110, 1121 (D. Haw. 1999) (noting that the FDPA provides for “the

introduction of ‘any’ relevant information in support of aggravating factors,” and the

Supreme Court “mandate[s] particularize[d] capital sentencing proceedings”).

       Our research has turned up a single decision holding that the categorical approach

should apply to prior conviction aggravators in the eligibility phase. See United States v.

Smith, 630 F. Supp. 2d 713, 717 (E.D. La. 2007). Smith emphasized the distinction

between the eligibility and selection phases of the penalty phase: “Statutory aggravating

factors are relevant to the eligibility phase of capital sentencing, which is to narrow the

pool of offenders eligible for death. It is at the selection phase that the individualization

of the sentencing occurs, likewise the weighing of the aggravating and mitigating

circumstances to determine whether a death sentence should in fact be imposed.” Id.

(emphases in original). And “the issue of individualized sentencing is simply not at play

in the eligibility phase of a capital sentencing.” Id. at 718. 11



       11
          Smith also distinguished Higgs, explaining that Smith was originally charged
with an aggravated robbery conviction but pled guilty to a robbery conviction; that is,
“[i]n effect, he pled out from the alleged use of a firearm.” Id. at 717. In Higgs,
however, Higgs “admitted as part of the guilty plea colloquy” that he used a firearm,
telling the court at the plea colloquy that the prosecutor accused him of using the wrong
gun. See id. This led Smith to hold that, even apart from the propriety of the categorical
approach, “allowing evidence of Smith’s use of a firearm to prove the statutory
aggravating factor alleged, in light of Smith’s guilty plea to a lesser charge which did not
(Continued)
                                               44
                                              b.

         Smith notwithstanding, we find the reasoning of the majority view to be most

persuasive.

         The categorical approach was born out of the ACCA, and the Supreme Court has

gone to great lengths to reiterate the non-factual, element-based nature of ACCA

enhancements. Last year in Mathis v. United States, the Court explained that in ACCA

cases,

               a sentencing judge may look only to the elements of the
               offense, not to the facts of the defendant’s conduct.

               That simple point became a mantra in our . . . ACCA
               decisions. At the risk of repetition (perhaps downright
               tedium), here are some examples. In Shepard [v. United
               States]: ACCA “refers to predicate offenses in terms not of
               prior conduct but of prior ‘convictions’ and the ‘element[s]’
               of crimes.” 544 U.S. [13,] 19 [(2005)] (alteration in original).
               In James v. United States: “[W]e have avoided any inquiry
               into the underlying facts of [the defendant’s] particular
               offense, and have looked solely to the elements of [burglary]
               as defined by [state] law.” 550 U.S. 192, 214 (2007). In
               Sykes v. United States: “[W]e consider [only] the elements of
               the offense[,] without inquiring into the specific conduct of
               this particular offender.” 564 U.S. 1, 7 (2011) (quoting
               James, 550 U.S. at 202; emphasis in original). And most
               recently (and tersely) in Descamps [v. United States]: “The
               key [under ACCA] is elements, not facts.” 133 S. Ct. [2276],
               2283 [(2013)].

136 S. Ct. 2243, 2251–52 (2016) (some alterations, citations, and internal quotation




have firearm use as an element nor as part of the factual basis of the plea, would be
unfair, unduly prejudicial and confusing to the jury.” Id. at 718.


                                             45
marks omitted). Mathis gave three reasons why an element-only, categorical inquiry is

favorable in the ACCA context: (1) the text favors that approach; (2) a judge cannot

constitutionally go beyond identifying the crime of conviction and what elements that

crime required; and (3) an elements focus avoids unfairness to the defendant. See id. at

2252. We find none of these reasons applicable to the FDPA context.

                                            i.

      First, while Descamps states that when it comes to the ACCA, “the key is

elements, not facts,” the FDPA stands for the converse: the key is facts, not elements.

See Caro, 597 F.3d at 626 (4th Cir. 2010) (“[T]he decision whether to select the death

penalty should involve ‘an individualized determination on the basis of the character of

the individual and the circumstances of the crime.’” (quoting Zant, 462 U.S. at 879)). For

example, the FDPA requires the following procedures aimed at a specific, individualized,

fact-based conclusion:

          • The FDPA mandates “a separate sentencing hearing to
            determine the punishment to be imposed.” 18 U.S.C.
            § 3593(b).

          • At the hearing, no presentence report is prepared; instead,
            “information may be presented as to any matter relevant to
            the sentence,” which includes both aggravating and
            mitigating factors “required to be considered.” Id. § 3593(c).

          • The Government may present “any information relevant to an
            aggravating factor.” Id. § 3593(c).

          • “Information is admissible regardless of its admissibility
            under the rules governing admission of evidence at criminal
            trials except that information may be excluded if its probative
            value is outweighed by the danger of creating unfair
            prejudice, confusing the issues, or misleading the jury.” Id.
                                           46
          • “The burden of establishing the existence of any aggravating
            factor is on the government, and is not satisfied unless the
            existence of such a factor is established beyond a reasonable
            doubt.” Id.

          • “The jury . . . shall consider all the information received
            during the hearing [and] shall return special findings
            identifying any aggravating factor or factors set forth in [§
            3592] found to exist . . . .” Id. § 3593(d).

It is obvious Congress’s intent was that information relevant to the particular defendant

and his or her particular sentence is fair game in the entirety of the sentencing hearing.

Applying the categorical approach, even to one phase of that hearing, flouts this intent.

       On this point, Appellant attempts to liken the text of (c)(2) to the type of language

Taylor held to invoke the categorical approach.         But Taylor itself distinguished a

definition of violent felony that contained the phrase “has as an element,” which refers to

the elements of statute, from one using the word “involves,” which likely refers to “the

facts of each defendant’s conduct.” 495 U.S. at 600–01. Thus, when the FDPA was

enacted in 1994, the use of the word “involv[es]” was actually a signal that a fact-based

approach was warranted. We have very recently held, in fact, that a provision of the

Mandatory Victims Restitution Act referring to “an offense . . . that is . . . an offense

against property under [Title 18]” did not warrant the categorical approach because it

“contain[ed] no language suggesting that courts look only to the elements of Title 18

statutory offenses.’” See Ritchie, 858 F.3d at 210 (quoting Nijhawan, 557 U.S. at 37).

We likewise find no indication in (c)(2) that courts should look only to the elements of a

state conviction involving the use of a firearm.


                                             47
       Moreover, under Appellant’s reading of § 3592(c)(2), the phrase “involving the

use or attempted or threatened use of a firearm” would carry different meanings

throughout the penalty phase, which would prove unwieldy. See Ritchie, 858 F.3d at 210

(We must “account for practical considerations when determining whether to employ the

categorical or circumstance-specific approach.” (internal quotation marks omitted)). In

Appellant’s view, the court would first decide (for example) whether Appellant’s

Virginia conviction for use of a firearm in a felony categorically “involv[ed] the use or

attempted or threatened use of a firearm.” § 3592(c)(2). Assuming, arguendo, the court

ruled the crime categorically involved the use of a firearm, the conviction would be

submitted to the jury, which would consider whether the crime actually involved the use

of a firearm and weigh the circumstances of that crime against mitigating evidence, all of

which would require fact-based determinations.

                                             ii.

       Second, unless the defendant directs otherwise, the sentencing hearing must be

conducted before a jury; therefore, disallowing a judge’s legal determination at the outset

of the eligibility phase skirts any potential Sixth Amendment problem contemplated by

Mathis. See § 3593(b)(1)–(3). Indeed, in the FDPA context, the jury is specifically

required to “determine which [aggravating factors], if any, exist.” § 3592(c); see also

§ 3593(d) (“The jury . . . shall return special findings identifying any aggravating factor

. . . set forth in [§ 3592] found to exist.” (emphasis supplied)). If “an aggravating factor

required to be considered under § 3592(c) is found to exist,” only then shall “the jury . . .

consider whether all the aggravating factor or factors found to exist sufficiently outweigh

                                             48
all the mitigating factor or factors found to exist justify a sentence of death.” § 3593(e).

Thus, Congress intended that the jury not only do the weighing process, but also initially

find which statutory aggravating factors apply to a particular defendant’s sentence. If the

court decided a prior conviction did not categorically involve the use of a firearm (if, as

Appellant contends and the dissent posits, the Virginia definition of firearm is broader

than the federal definition), the statutorily mandated function of the jury is completely

usurped. 12

                                             iii.

       Our dissenting colleague believes employing the categorical approach would

result in a fairer sentencing process, noting the gravity and seriousness of a death

sentence. See post at 81–83. He admits that his approach “may render certain defendants

who would otherwise be death eligible no longer able to be considered for capital

punishment.” Id. at 90. In our view, however, any perceived fairness conferred to a

defendant by use of the categorical approach in the FDPA context must be weighed

against Congress’s obvious intent, careful delineation of the stages of death penalty

sentencing, and the overall purpose of the FDPA.



       12
          The dissent observes that even if a judge determines a prior conviction involves
the use of a firearm, a capital jury must still determine “whether the government has
sufficiently proved that the prior convictions exist,” thus retaining some role, albeit
perhaps a “perfunctory” one. Post at 79 & n.6. Under the dissent’s view, however, the
capital jury’s role in the eligibility phase is reduced to superficiality, and we fail to see
how this satisfies the “jury’s prescribed function” as set forth in § 3592(c) and § 3593(d).
Post at 80.


                                             49
       Appellant and our dissenting colleague believe we should view the eligibility and

selection phases in separate vacuums: although they recognize the FDPA’s emphasis on

an individualized sentence, they attempt to confine that emphasis to the selection phase

only. But the idea that an individualized analysis has no place in the eligibility phase is

neither present in, nor contemplated by, the FDPA. For starters, the FDPA does not

mandate trifurcated proceedings, meaning that courts are not required to separate the

eligibility and selection inquiries into two separate hearings. In fact, we have held the

Constitution does not require trifurcation. See Booth-El v. Nuth, 288 F.3d 571, 582–83

(4th Cir. 2002) (rejecting argument that denial of request for trifurcation violates due

process); see also United States v. Fell, 531 F.3d 197, 240 (2d Cir. 2008).

       And holding that the categorical approach should apply in this case, but not a case

with a bifurcated proceeding, like Higgs, could have untoward (and ultimately unfair)

consequences. Generally, instead of requiring the Government consent to trifurcation,

courts have followed normal motion practice procedure, taking each side’s arguments in

turn. There are many reasons a defendant would desire trifurcation and an eligibility

hearing first; for example, in the case at hand, evidence of the Zion crimes only came in

at the selection phase, decreasing the potential for prejudice in the eligibility phase. But

holding that the categorical approach should apply as a matter of law in the eligibility

phase would surely discourage any zealous prosecutor from consenting to a trifurcated

proceeding. See, e.g., United States v. Bolden, 545 F.3d 609, 618–19 (8th Cir. 2008);

United States v. Johnson, 362 F. Supp. 2d 1043, 1099 (N.D. Iowa 2005), aff'd in part,

495 F.3d 951 (8th Cir. 2007) (noting defendant’s motion for trifurcation “became one of

                                            50
the most contentious” motions before the court).

      Finally, we cannot ignore the Supreme Court’s admonition that the statutory

aggravators “must genuinely narrow the class of persons eligible for the death penalty.”

Zant, 462 U.S. at 877 (emphasis supplied). The dissent is correct that its approach would

narrow the class of persons eligible for the death penalty, but any such narrowing must

also be genuine -- that is, it must be done in an “objective, evenhanded, and substantively

rational way.” Caro, 597 F.3d at 623 (quoting Zant, 462 U.S. at 879).

       The death penalty is reserved “for the most culpable defendants committing the

most serious offenses,” Miller v. Alabama, 132 S. Ct. 2455, 2467 (2012), but under the

categorical approach, the judge would “presume” that the prior conviction “rested upon

nothing more than the least of the acts criminalized” under the criminal statute at issue,

Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (quoting Moncrieffe v. Holder, 133 S. Ct.

1678, 1684–85 (2013)); accord Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568

(2017). We fail to see how the categorical approach, which focuses on the least culpable

act proscribed by statute rather than the particular culpability of a defendant, narrows in

any genuine way the type of defendants who should be eligible for a death sentence. 13


      13
          We take issue with the dissent’s suggestions that it is “bizarre,” “especially
strange,” and somehow “twists death penalty jurisprudence” to hold both (1) that
permitting post-offense convictions to qualify as previous convictions can “narrow the
class of all murderers to only murderers with previous convictions,” and (2) that the
categorical approach does not “genuinely narrow” the class of persons eligible for the
death penalty. Post at 81–82. Believing the former certainly does not preclude believing
the latter. Higgs has already decided that using post-offense convictions genuinely
narrows the class of murderers to those murderers who received a qualifying conviction
before sentencing. See Higgs, 353 F.3d at 318 (suggesting prior conviction aggravators
(Continued)
                                            51
                                            iv.

       Finally, we address the Supreme Court’s decisions in James v. United States, 550

U.S. 192 (2007), and Johnson v. United States, 135 S. Ct. 2551 (2015), upon which our

dissenting colleague relies. The James Court applied the categorical approach to the

ACCA’s now-defunct residual clause, which provided a sentencing enhancement for a

prior conviction that “involves conduct that presents a serious potential risk of physical

injury to another.” See 550 U.S. at 201–02 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).

Appellant suggests and the dissent proclaims that James, and the Court’s subsequent

reaffirmation and explanation of the categorical approach in Johnson, implicitly

overruled Higgs’s holding on the categorical approach issue. See post at 66; see also

Appellant’s Br. 59–60.

       It is true that Higgs relied on the term “involv[e]” to demonstrate that a fact-

specific inquiry was warranted, while James held that crimes defined by types of conduct

“involved,” especially within the ACCA, are susceptible to the categorical approach. See

James, 550 U.S. at 202 (noting that the Court had taken the categorical approach “with

respect to other offenses under ACCA”). But we are not convinced that James overruled

Higgs on this point. To begin, the Higgs court was careful to state that the use of the



“do[] not concern matters directly related to the death penalty offense [but] [r]ather [are]
concerned with the characteristics of the offender as of the time that he is sentenced”).
But the categorical approach prohibits consideration of previous offenses as a
“characteristic[]” of the defendant; rather, it places the defendant’s prior history in a
generic vacuum. As such, it is not a “genuine” narrowing of murderers to death-eligible
murderers.


                                            52
word “involving” “authorizes and likely requires the court to look past the elements of the

offense.” 353 F.3d at 316 (emphasis supplied). Higgs in no way held that any statute

using the word “involving” precluded the categorical approach, and James in no way

held that any statute containing that word required the categorical approach.           For

example, elsewhere in § 3592(c), Congress uses the word “involved” in the context of a

plainly non-categorical statutory aggravators. See, e.g., § 3592(c)(6) (“The defendant

committed the offense in an especially heinous, cruel, or depraved manner in that it

involved torture or serious physical abuse to the victim.” (emphasis supplied));

§ 3592(c)(13) (“The defendant committed the offense in the course of engaging in a

continuing criminal enterprise in violation of [21 U.S.C. § 848(c)], and that violation

involved the distribution of drugs to persons under the age of 21 . . . .” (emphasis

supplied)). In other words, the word “involves” can still “authorize[]” courts to look past

the elements of the offense. Therefore, Higgs and James can coexist. 14

       As for Johnson, that decision stated, “Taylor explained that the relevant part of the

[ACCA] refers to ‘a person who . . . has three previous convictions’ for -- not a person

who has committed -- three previous violent felonies or drug offenses,” and “[t]h[e]

emphasis on convictions indicates that Congress intended the sentencing court to look

only to the fact that the defendant had been convicted of crimes falling within certain


       14
         The dissent also states that the word involving “on its own” cannot signify that
the categorical approach is inappropriate. Post at 66. But Higgs did not rely on that
word alone; it also noted the “individualized determination” required in the death penalty
context. See 353 F.3d at 317.


                                            53
categories, and not to the facts underlying the prior convictions.” 135 S. Ct. at 2562

(citations and internal quotation marks omitted). Although § 3592(c)(2) is written in

terms of a person “ha[ving] previously been convicted of” a certain crime, rather than a

person “who has committed” a certain crime, Johnson’s analysis was specifically

couched in terms of the ACCA, and as discussed above, there are ample reasons the

categorical approach is suitable to the ACCA and not the FDPA. Therefore, we cannot

say Johnson has overruled Higgs either.

       In any event, our analysis does not rise and fall on the Higgs decision. As the

Eighth Circuit stated, the meaning of “involving” simply “does not resolve the issue.”

Rodriguez, 581 F.3d at 806. We find the reasoning of Rodriguez, its progeny, Mathis,

and the language of the FDPA itself most persuasive and supportive of Higgs’s ultimate

resolution on this point. Therefore, we conclude the categorical approach does not apply

to § 3592(c)(2).

                                             2.

                                       Application

       Having decided the categorical approach does not apply, we conclude that the

Arlington crimes clearly qualify as prior convictions of violent felonies involving a

firearm pursuant to § 3592(c)(2).      For the events occurring on February 27, 2010,

Appellant was convicted of, inter alia, use of a firearm in a felony, and breaking and

entering while armed.      Any challenge Appellant brings regarding whether these

convictions “involv[ed] the use or attempted or threatened use of a firearm . . . against

another person” is basically a sufficiency challenge that must fail. § 3592(c)(2).

                                            54
       Both J.T. and K.M. testified that Appellant had a firearm, and we have held,

“Eyewitness testimony is sufficient to prove that a person used a firearm.” United States

v. Redd, 161 F.3d 793, 797 (4th Cir. 1998). The Government need not “present expert

testimony” that a defendant’s putative firearm was “capable of expelling a projectile . . .

absent some indication that the firearm was a fake.” McNeal, 818 F.3d 141, 149 (4th Cir.

2016) (citing United States v. Jones, 907 F.2d 456, 460 (4th Cir. 1990)).           “[L]ay

testimony of eyewitnesses that a gun was used in [an offense] is a sufficient basis for the

jury to find that a ‘firearm’ was used” during the offense. Id. (internal quotation marks

omitted). The evidence showed that Appellant owned a Glock 22, and that his Glock was

designed to expel a projectile using an explosive, see id. at 4437 (testimony of Officer

Keith Ahn), satisfying the federal definition of a firearm. See 18 U.S.C. § 921(a)(3)(A).

And it is without question that Appellant attempted or threatened to use the firearm on

both J.T. and M.N. by showing them the gun and forcing them to perform certain acts.

Therefore, Appellant’s convictions regarding the February 27 conduct satisfy

§ 3592(c)(2), making Appellant death eligible.

                                            C.

                                 Competency Evaluation

       Appellant also contends that the district court erred by allowing him to forego

challenges to the Government’s eligibility and selection phase evidence and allowing him

to waive a mitigation defense without “first determining his competency to make those

decisions.” Appellant’s Br. 112. We review a court’s failure to conduct a competency

hearing or evaluation for abuse of discretion. See United States v. Mason, 52 F.3d 1286,

                                            55
1289 (4th Cir. 1995). We “may not substitute [our] judgment for that of the district court;

rather, we must determine whether the court’s exercise of discretion, considering the law

and the facts, was arbitrary or capricious.” Id.

       During the course of the pre-trial proceedings, Appellant persistently urged the

court to allow him to represent himself, citing disputes with counsel. In early 2013, the

district court sua sponte ordered a competency evaluation, the results of which were

outlined in a letter to the district court on February 19, 2013, approximately one year

before trial began.

       Psychiatrist Richard Ratner conducted the evaluation, which was comprised of a

three hour jail interview with Appellant and lengthy discussions with three attorneys who

knew or had worked with Appellant. Dr. Ratner did not conduct an extensive evaluation

of Appellant’s previous psychiatric history or his developmental, family, social,

educational, occupational, legal, and substance use history. Dr. Ratner’s letter mentions

that Appellant had been examined by two other mental health professionals, but he

neither requested nor had access to the results of that testing. Nonetheless, Dr. Ratner

concluded that Appellant did not suffer from a diagnosable mental illness, was fully

competent to stand trial, and had the requisite mental and psychological capacity to

represent himself.

       Notably, Dr. Ratner’s letter explained that Appellant had a strong aversion to

discussing his personal history and a strong opposition to pursuing a mitigation defense.

He questioned Appellant’s judgment on these points, but explained that his choices

should not have as significant an effect on the guilt phase. He noted, however, that if a

                                             56
question of competency was raised at the penalty phase, the court could deal with that

issue at a later time.

       Three days after the competency evaluation letter was written, the district court

held a hearing in which Appellant himself stated it was probably “not in my best interests

[sic] to represent myself.” Appellee’s Br. 95 (quoting sealed J.A.). The district court,

after hearing from counsel and reviewing Dr. Ratner’s letter, determined Appellant was

competent to stand trial and granted a request for substitute counsel, who represented

Appellant throughout the guilt phase.

       After Appellant was found guilty, he again clashed with counsel over whether to

present mitigation evidence in the penalty phase. The district court held an ex parte

hearing and asked defense counsel, “Have you seen a change in the mental health of Mr.

Torrez over the last year?” Counsel responded that he and his co-counsel were “unable

to file an affidavit that says [Appellant] is not competent.” J.A. 4400–01. The district

court also stated that it had “checked with the Alexandria Detention Center to see

whether there were any kind of incidents or any notes regarding a change in [Appellant’s]

mental health, and they could not identify any.” Id. at 4401. The court then directed

counsel to outline the mitigation case it would present, questioned Appellant at length,

and ultimately found Appellant to be competent and allowed him to go forward with

standby counsel present at the penalty phase.

       Appellant now contends that the district court should have ordered a second

competency evaluation and hearing before allowing Appellant to proceed to sentencing

with only standby counsel and before he made the choice to present no mitigation

                                           57
evidence whatsoever.

       At any time prior to sentencing a defendant, the district court “shall order [a

competency] hearing on its own motion, if there is reasonable cause to believe that the

defendant may presently be suffering from a mental disease or defect rendering him

mentally incompetent to the extent that he is unable to understand the nature and

consequences of the proceedings against him.” 18 U.S.C. § 4241(a); see also United

States v. Moussaoui, 591 F.3d 263, 291 (4th Cir. 2010). The well-established test for

competence is whether the defendant “has sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding -- and whether he has a

rational as well as factual understanding of the proceedings against him.” Dusky v.

United States, 362 U.S. 402, 402 (1960) (per curiam) (internal quotation marks omitted).

“To prevail, the defendant must establish that the trial court ignored facts raising a bona

fide doubt” regarding competency. Walton v. Angelone, 321 F.3d 442, 459 (4th Cir.

2003) (internal quotation marks omitted).

       Appellant contends that the district court was presented with several facts that

mandated a court-ordered competency evaluation and hearing: defense counsel’s alleged

“somewhat equivocal opinion” that Appellant was competent, Appellant’s Br. 114;

defense counsel’s view that Appellant’s decision to forego a mitigation defense was

irrational; the 2013 competency evaluation applied only to the guilt phase, and

Appellant’s mental state in 2014 was “exacerbated by the stress of a capital trial,” id.; the

Government recommended another competency evaluation in the event of an appellate

waiver; and there were “red flags” that Appellant was not competent, id. at 116.

                                             58
       We have reviewed these circumstances and conclude the district court did not

abuse its discretion in failing to order a second evaluation and hearing.            Defense

counsel’s opinion about Appellant’s competency was unequivocal, and we have

recognized a defendant can make a “rational choice” to forego a mitigation defense.

Chandler v. Greene, 1998 WL 279344, at *8 (4th Cir. May 20, 1998) (quoting Rees v.

Peyton, 384 U.S. 312, 314 (1966) (per curiam)).          We also reject the notion that a

defendant’s desire to “fight the case” at the guilt stage makes per se irrational his decision

to forego a mitigation defense at the penalty phase, once he has in fact been convicted.

J.A. 4398. In addition, although the 2013 competency evaluation was conducted for

purposes of the guilt phase, Dr. Ratner nonetheless mentioned Appellant’s desire that his

counsel withhold investigation of mitigation evidence, and explained that while it “may”

lead to a question of competency at the penalty phase, it was not a “manifestation of a

diagnosable mental illness.” Appellee’s Br. 95 (quoting sealed J.A.).

       In addition, the Government’s request for a second competency evaluation came in

its Position on Sentencing, and was made in the distinct context of a potential appellate

waiver. Indeed, in that filing, the Government acknowledged, “[N]o . . . showing [of a

mental disease or defect] has been made with respect to the defendant.” J.A. 5246 n.1.

Finally, the “red flags” mentioned by Appellant were either present before the 2013

evaluation, mentioned in the context of a wholly different issue in the case, or wholly

non-probative of Appellant’s mental state.           Therefore, Appellant has failed to

demonstrate that the district court “ignored facts raising a bona fide doubt” regarding his

competency, and we reject his arguments on this point. Walton, 321 F.3d at 459 (internal

                                             59
quotation marks omitted).

                                             D.

                               Other Sentencing Arguments

       We have reviewed Appellant’s remaining sentencing arguments: whether

Appellant’s Fifth Amendment rights were violated when the Government submitted and

failed to correct allegedly false or misleading evidence in the eligibility phase; aside from

the competency issue discussed above, whether the district court otherwise erred in

allowing Appellant to waive his right to contest or rebut the Government’s case in the

eligibility and selection phases of the sentencing trial; and whether the Eighth

Amendment barred the admission of evidence of the Zion murders in the selection stage.

We find each of these arguments to be without merit.

                                             V.

                                        Conclusion

       For the foregoing reasons, we find no reversible error as to the issues raised by

Appellant. We are also satisfied that (1) the evidence clearly “supports the special

finding of the existence of an aggravating factor required to be considered under section

3592,” and (2) the sentence of death was not “imposed under the influence of passion,

prejudice, or any other arbitrary factor.” 18 U.S.C. § 3595(c)(1).         Accordingly, we

affirm Appellant’s conviction and death sentence.

                                                                                AFFIRMED




                                             60
DIAZ, Circuit Judge, concurring:

       I concur in Judge Thacker’s thorough opinion in this case, save for footnote 10.

Specifically, I see no need to second-guess our previous holding in United States v. Higgs

that conduct occurring after the commission of a capital offense can make a defendant

eligible for the death penalty. In my view, Higgs presented compelling justifications,

rooted in the Federal Death Penalty Act’s language, for considering all conduct occurring

before the sentencing phase of a capital case.




                                            61
FLOYD, J., concurring in part and dissenting in part:

       I agree with my colleagues in the majority that none of Appellant Jorge Torrez’s

complaints with respect to his trial merit reversal. However, I would find that Torrez was

ineligible for the death penalty and accordingly vacate his death sentence and remand for

resentencing. Therefore, while I concur in Parts I–III of the majority opinion, as well as

Part IV.A and Part IV.C, I must dissent from the remainder of Part IV and the ultimate

conclusion in Part V.


                                             I.

       The majority opinion adequately lays out the facts and the basic premises of the

Federal Death Penalty Act (FDPA), 18 U.S.C. §§ 3591–98, and they need not be repeated

in depth here. I thus restate only the most relevant information. The FDPA contains

sixteen enumerated aggravating factors for a defendant convicted of homicide, which

generally relate to either characteristics of the defendant, the offense, or the victim. See

18 U.S.C. § 3592(c)(1)–(16). At the end of this list is a catchall, known as the “non-

statutory aggravator,” that permits the jury to “consider whether any other aggravating

factor for which notice has been given exists.” Id. § 3592(c). We concern ourselves

today with two of the five statutory aggravators that deal with previous convictions for

those convicted of homicide—§ 3592(c)(2) and (c)(4). 1


       1
         18 U.S.C. § 3592(c)(3), (c)(10), and (c)(12) are also concerned with previous
convictions. Statutory aggravators related to prior convictions also exist for capital
defendants accused of crimes other than homicide. See 18 U.S.C. § 3592(b)(1) &
(d)(1)–(3).


                                            62
       The government proceeded against the Appellant Jorge Torrez in this FDPA case

on the exclusive basis of those two statutory aggravating factors. Torrez was convicted

and found death eligible by the jury on the basis of these two statutory aggravators, and

subsequently the jury recommended he be sentenced to death.


                                            II.

       Although I have concerns about the appropriateness of using post-offense conduct

as “previous convictions,” I share the majority’s view that we are bound by United States

v. Higgs, 353 F.3d 281 (4th Cir. 2003), with respect to this challenge. See ante at 22–39. 2

Where I part ways with my colleagues in the majority is in their belief that the holding in

Higgs with respect to the categorical approach was not implicitly overruled by the

Supreme Court. See ante at 40–44, 52–54. I would find that (1) the holding regarding

the categorical approach in Higgs was overruled implicitly by the Supreme Court in




       2
          In joining the majority’s conclusion in Part IV.A, I note that the holding from
Higgs on this issue appears contrary to our conclusions in other contexts. See, e.g.,
United States v. Pressley, 359 F.3d 347, 351 (4th Cir. 2004) (“Unlike the sentencing date,
the violation date is not subject to the whims of the court’s docket nor vulnerable to
manipulation by either party. Rather, it would be ‘absurd’ to adopt an interpretation, not
supported by the plain text of the statute, which would subject a defendant to a mandatory
fifteen-year minimum sentence based on the mere fortuity of his sentencing date.”).
However, I also acknowledge that to the extent Pressley and Higgs are viewed to be in
conflict on this holding, Higgs would control under the earliest-case-governs rule. See
McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004) (en banc) (“When
published panel opinions are in direct conflict on a given issue, the earliest opinion
controls, unless the prior opinion has been overruled by an intervening opinion from this
court sitting en banc or the Supreme Court.”).


                                            63
James v. United States, 550 U.S. 192 (2007); 3 (2) the categorical approach does apply to

determining whether a conviction can satisfy 18 U.S.C. § 3592(c)(2) or (c)(4); and (3)

Torrez’s convictions for the Arlington Offenses do not satisfy either 18 U.S.C.

§ 3592(c)(2) or (c)(4) and thus Torrez is ineligible for the death penalty. Accordingly, I

would vacate his death sentence and remand this case for resentencing.


                                             A.

       The categorical approach was first announced in Taylor v. United States, 495 U.S.

575, 599–602 (1990)—four years before the passage of the FDPA. In Taylor, the Court

considered 18 U.S.C. § 924(e), one of the penalty provisions of the Armed Career

Criminal Act (ACCA), which provides a sentence enhancement “[i]n the case of a person

who . . . has three previous convictions . . . for a violent felony or a serious drug offense,

or both.” 18 U.S.C. § 924(e)(1). The Court in Taylor found that the language of the

statute indicated that Congress wanted the focus of this sentencing enhancement to be

focused on the fact of conviction, rather than the facts underlying the convictions. 495

U.S. at 600. As the Court explained:

       Section 924(e)(1) refers to “a person who . . . has three previous
       convictions” for—not a person who has committed—three previous violent
       felonies or drug offenses. Section 924(e)(2)(B)(i) defines “violent felony”
       as any crime punishable by imprisonment for more than a year that “has as
       an element”—not any crime that, in a particular case, involves—the use or
       threat of force.


       3
        James was later overruled on other grounds by Johnson v. United States, 135 S.
Ct. 2551 (2015).


                                             64
Id. The Court went on to further find that the legislative history “show[ed] that Congress

generally took a categorical approach to predicate offenses,” and that there would be

“practical difficulties and potential unfairness” in applying a factual approach to

determining whether previous convictions fit within the defined “violent felonies” in the

ACCA. Id. at 601–02.

       In rejecting the categorical approach for 18 U.S.C. § 3592(c)(2), the court in Higgs

relied on the distinction drawn in Taylor to find that the language used in (c)(2) did not

support applying the categorical approach. See Higgs, 353 F.3d at 316–17. The court

explained that “[b]ecause the language [of (c)(2)] quite plainly requires only that the

previous conviction ‘involv[e] the use or attempted or threatened use of a firearm,” it

authorizes and likely requires the court to look past the elements of the offense to the

offense conduct.” Id. at 316 (third modification in original).

       However, three and half years after our decision in Higgs, the Supreme Court

issued its opinion in James. In James, the Court expressly stated that it would apply the

categorical approach of Taylor in determining whether an offense was one that “involves

conduct that presents a serious potential risk of physical injury to another.” 550 U.S. at

201–02 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). To further clarify, the Court explained it

would “consider whether the elements of the offense are of the type that would justify [the

offense’s] inclusion within [18 U.S.C. § 924(e)(2)(B)(ii)], without inquiring into the

specific conduct of this particular offender.” Id. at 202.

       Subsequently, in Johnson, the statutory language that had been at issue in James

was deemed unconstitutionally vague. 135 S. Ct. at 2557. In reaching this conclusion,

                                             65
the Court responded to the dissenting Justices’ suggestion that the provision could be

saved by simply abandoning the categorical approach. The Court stated that this was not

an option, for the categorical approach was clearly applicable. The Court explained that

the determination of whether the categorical approach should apply is based on the

language referring to “a person who . . . has three previous convictions,” and not on the

language in the ACCA that defines a violent felony as “ha[ving] as an element” the use or

threatened use of force. Id. at 2562 (citing Taylor, 495 U.S. at 600).

       The majority concludes that the holdings of James and Johnson have not

implicitly overruled our holding in Higgs. Ante at 52–54. I cannot agree. Our holding in

Higgs was that the (c)(2) aggravator contains the word “involving,” which precludes

application of the categorical approach. 353 F.3d at 316–17. This sole premise has been

wholly undermined by the Supreme Court’s use of the categorical approach in James for

a statute that similarly used the word “involves.” After James and the emphasis of the

word “conviction” in Johnson, it cannot be said that the word “involving”—on its own—

signifies that the categorical approach is inappropriate.

       As the majority points out, some statutes using the word “involving” are analyzed

under the categorical approach, and some statutes using the word “involving” are not.

See ante at 53. 4 But this is itself evidence that Higgs is no longer good law with respect


       4
         The majority reasons that Congress used the word “involved” in other
aggravators that are clearly not susceptible to the categorical approach. Ante at 53. This
point, while correct, is inapposite. Both of the aggravators that do so—§ 3592(c)(6) &
(c)(13)—are focused on characteristics of the offense of conviction and not
characteristics of the defendant as in (c)(2) and (c)(4). It would be nonsensical for the
(Continued)
                                             66
to this contested holding. Under the logic of Higgs, this disparity would be impossible;

Higgs dictates that no statute using the word “involving” could be subject to the

categorical approach. Notably, in reaching this conclusion I am not claiming that the

implied overruling of Higgs by James dictates that the categorical approach must be

applied—the overruling only means that we must consider the issue anew.

       The majority cites to the Eighth Circuit’s decision in United States v. Rodriguez,

581 F.3d 775, 806 (8th Cir. 2009), in support of its conclusion that Higgs has not been

overruled. To the contrary, Rodriguez only serves to undermine the idea that Higgs has

not been implicitly overruled in this respect. In Rodriguez, the court noted, “the meaning

of ‘involving’ does not resolve the issue.” 581 F.3d at 806. Then, the court in Rodriguez

went on to determine that the categorical approach did not apply based on the structure

and language of the statute, but did not base that conclusion solely on the word

“involving.” Id. at 806–07. This is in stark contrast to our analysis in Higgs, which, as

explained above, was based on the word “involving” alone. Rodriguez demonstrates that

the word “involving” is not the end of inquiry when it comes to the categorical approach;

this is fully consistent with my understanding of James. Again, I do not claim that James

signifies that the word “involving” dictates the use of the categorical approach. I simply




categorical approach to apply to characteristics of the offense of conviction, but applying
the categorical approach to characteristics of the defendant is exactly what we do in the
ACCA context and what we should do here as I explain further in Section II.B, infra.


                                            67
believe James signifies that the word “involving” cannot by itself dictate anything—

examination of other factors will always be necessary.

       Further, at least one district court has expressly called into question our holding in

Higgs, declining to rely on it due to the Supreme Court’s holding in James. See United

States v. Basciano, 763 F. Supp. 2d 303, 347 (E.D.N.Y. 2011), aff’d on other issues, 634

F. App’x 832 (2d Cir. 2015). Another district court has expressly disagreed with our

logic in Higgs for the reasons later espoused by the Court in James. See United States v.

Sablan, 555 F. Supp. 2d 1177, 1191 (D. Colo. 2006) (rejecting the word “involved” as a

basis for distinguishing the FDPA from the ACCA, and noting “[t]his [was] the

distinction that Higgs relied on”).

       At bottom, Higgs relied exclusively on the fact that the previous conviction for a

firearm offense aggravator at (c)(2) includes offenses that “involv[e] the use or attempted

or threatened use of a firearm . . . against another person.” The Supreme Court in James

and Johnson has disavowed the idea that the word “involve” alone can render a

sentencing enhancement provision immune from the categorical approach. Accordingly,

I would find that James and Johnson have implicitly overruled our conclusion in Higgs

that the categorical approach does not apply to (c)(2), and start my analysis on this issue

from a blank slate.


                                             B.

       Turning now to whether the categorical approach applies to previous convictions

for the aggravators in 18 U.S.C. § 3592(c)(2) and (c)(4), I would find that it does. The


                                             68
majority rightly points out that authority on this issue is scant. See ante at 41–44. The

only circuits to weigh in thus far have been this Court and the Eighth Circuit, and then a

smattering of district courts. The majority of courts to opine on this issue have concluded

that the categorical approach would not apply; however, the majority is not always right.

                                             1.

       To provide context for why I do not agree with the view of the majority opinion

here, I briefly review the Supreme Court’s death penalty jurisprudence. The Court has

broken down the penalty phase of capital sentencing into two different phases—

eligibility and selection. Tuilaepa v. California, 512 U.S. 967, 971 (1994); see also Jones

v. United States, 527 U.S. 373, 376–79 (1999) (explaining procedures under the FDPA

and discussing how the jury must unanimously find eligibility before it can proceed to the

selection decision). At the eligibility phase, “the trier of fact must convict the defendant

of murder and find one ‘aggravating circumstance’ (or its equivalent).” Tuilaepa, 512

U.S. at 972. Then, the Court has “imposed a separate requirement for the selection

decision, where the sentencer determines whether a defendant eligible for the death

penalty should in fact receive that sentence.” Id. (emphasis added). “What is important

at the selection stage is an individualized determination on the basis of the character of

the individual and the circumstances of the crime.” Zant v. Stephens, 462 U.S. 862, 879

(1983) (first emphasis added, second emphasis in original). As noted by the Court, “[t]he

objectives of these two inquiries can be in some tension, at least when the inquiries occur

at the same time.” Tuilaepa, 512 U.S. at 973.



                                            69
                                             2.

       In reaching its conclusion, the majority relies on opinions from courts that reject

the categorical approach by relying on the Supreme Court’s requirement that death

penalty sentencing be individualized. See ante at 43–44; Rodriguez, 581 F.3d at 806–07

(“[T]he FDPA mandates a fact-intensive process in death-eligible proceedings. . . .

Beyond the FDPA, the factual inquiry required in death penalty cases has constitutional

significance.”); United States v. Con-ui, No. 13-cr-123, 2017 WL 783437, at *11–12

(M.D. Pa. Mar. 1, 2017) (relying on Zant and the cases cited here to explain that the

individualized sentencing requirement in capital punishment precludes application of the

categorical approach); Basciano, 763 F. Supp. 2d at 348 (adopting Rodriguez in whole on

this issue); United States v. Anh The Duong, No. CR-01-20154, 2010 WL 275058, at *3

(N.D. Cal. Jan. 14, 2010) (same); United States v. Chong, 98 F. Supp. 2d 1110, 1120 (D.

Haw. 1999) (“Defendant’s argument that the statute provides that the jury is only to

consider the fact of conviction, rather than the conduct underlying the conviction, flies in

the face of the Supreme Court’s mandate to particularize capital sentencing

proceedings.”). Each of these cases cites to Zant or its progeny in support of this idea,

but as is clear from the language of Zant itself, the individualized determination is

necessary at the selection phase—not the eligibility phase.

       The only court to appreciate and give meaning to this distinction is the opinion of

the district court in in United States v. Smith, 630 F. Supp. 2d 713 (E.D. La. 2007). As

the court there recognized, “the issue of individualized sentencing is simply not at play in

the eligibility phase of capital sentencing.” Smith, 630 F. Supp. 2d at 718. The court

                                            70
explained, “It is at the selection phase that the individualization of the sentencing occurs,

likewise the weighing of the aggravating and mitigating circumstances to determine

whether a death sentence should in fact be imposed.” Id. at 717. In contrast, the purpose

of the eligibility phase “is to narrow the pool of offenders eligible for death.” Id. And, as

emphasized by Justice Blackmun in a powerful dissent, the point of the individualized

approach in capital sentencing is to “afford[] the sentencer the power and discretion to

grant mercy in a particular case, and provid[e] avenues for the consideration of any and

all relevant mitigating evidence that would justify a sentence less than death.” Callins v.

Collins, 510 U.S. 1141, 1144 (1994) (Blackmun, J., dissenting). This point was further

underscored in Kansas v. Marsh, 548 U.S. 163 (2006), where the Court explained that:

       [A] state capital sentencing system must: (1) rationally narrow the class of
       death-eligible defendants; and (2) permit a jury to render a reasoned,
       individualized sentencing determination based on a death-eligible
       defendant’s record, personal characteristics, and the circumstances of his
       crime.

Marsh, 548 U.S. at 173–74 (citing Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion

of Stewart, Powell, and Stevens, JJ.).        Thus, the clear purpose of individualized

sentencing is for the selection stage once the defendant has become a “death-eligible

defendant.” To flip the individualized sentencing requirement on its head and use it as a

means to find a defendant death eligible perverts the requirement and renders it

unrecognizable.

       The majority resists this conclusion, and instead finds that that the legal distinction

between eligibility and selection “is neither present in, nor contemplated by, the FDPA.”

Ante at 50. I cannot agree. Although not expressly laid out, the FDPA first requires a

                                             71
unanimous finding by the jury of at least one statutory aggravator in order to consider

whether the defendant may be sentenced to death. See 18 U.S.C. § 3593(d)–(e). Further,

it is only once the defendant has been found death eligible pursuant to one of the statutory

aggravators listed in 18 U.S.C. § 3592 that the jury may proceed to consider any non-

statutory aggravators and any mitigation evidence proffered by the defendant. See Jones,

527 U.S. at 377–78 & n.2; see also 18 U.S.C. § 3593(d)–(e). No one can dispute that

mitigation evidence and non-statutory aggravator evidence cannot be considered by the

jury in its eligibility phase decision; even the government itself has conceded below that

different constitutional protections attach at eligibility and selection. J.A. 122–23 (“The

clear implication of the holding [in Ring] was that eligibility and selection were distinct

components of the process, with the former being subject to, among other things, various

constitutional requirements.” (emphasis added)).

       Thus, I cannot agree with the majority’s conclusion that the FDPA does not

provide for a difference between eligibility and selection. Rather, I believe that those are

two different issues, involving distinct burdens and types of evidence available for

consideration, and the jury must be instructed accordingly on what it may consider and

how to reach each conclusion. 5




       5
        Because of the differences between the eligibility and selection phases, separate
proceedings—as took place here—are, if not required, at least recommended. See
Tuilaepa, 512 U.S. at 973 (noting that conducting eligibility and selection phases jointly
can result in “some tension”).


                                            72
                                             3.

       Having concluded that there is a meaningful difference between the eligibility and

selection phases that must be factored into this decision, I now move on to the question of

whether we should apply the categorical approach to the (c)(2) and (c)(4) statutory

aggravators. I conclude that we should.

       As the majority discusses, the ACCA is the original source of the categorical

approach. See ante at 45–46. But the categorical approach is not limited to the ACCA.

It applies in the context of immigration cases, see, e.g., Gonzalez v. Duena-Alvarez, 549

U.S. 183, 186 (2007), to determining crimes of violence under the Sentencing Guidelines,

see, e.g., United States v. Montes-Flores, 736 F.3d 357, 364 (4th Cir. 2013), and to

determining crimes of violence under 18 U.S.C. § 16 and the myriad statutes that

incorporate that definition, see, e.g., Karimi v. Holder, 715 F.3d 561, 567 (4th Cir. 2013).

       Determining whether the categorical approach should be applied is a matter of

statutory interpretation. In interpreting the statute, we examine the text to determine

whether Congress intended to “refer[] to a generic crime, or . . . to the specific way in

which an offender committed the crime on a specific occasion.” Nijhawan v. Holder, 557

U.S. 29, 34 (2009).

       The Supreme Court has often explained the rationales for applying the categorical

approach to the ACCA, doing so most recently in Mathis v. United States, 136 S. Ct.

2243, 2252–53 (2016): (1) the text favors that approach by referring to “a defendant who

has three ‘previous convictions’ . . . rather than one who has . . . committed that crime;”

(2) Sixth Amendment concerns in permitting a judge at sentencing to find facts beyond

                                            73
the fact of conviction; and (3) perceived unfairness to defendants posed by a contrary

approach. Id. These rationales guide the following analysis of the statutory language at

issue in this case.


                                            a.

       I turn first to the text.    When a statutory scheme “asks what offense the

[defendant] was ‘convicted’ of,” our focus must move to an elements-based approach, as

“‘[c]onviction’ is ‘the relevant statutory hook.’” Moncrieffe v. Holder, 133 S. Ct. 1678,

1685 (2013) (quoting Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2588 (2010)) (first

modification added, second in original). Applying this standard here, it is clear that the

categorical approach should be applied. In 18 U.S.C. § 3592(c)(2) and (c)(4), the focus

of the statute is on “conviction” and on what offense the defendant has been convicted of,

rather than on what specifically the defendant did.

       By eliding the difference between eligibility and selection, the majority reads the

FDPA to require a fact-intensive inquiry. See ante at 46 (citing United States v. Caro,

597 F.3d 608, 626 (4th Cir. 2010), in turn quoting Zant, 462 U.S. at 879). As explained

above, however, this is not so at the eligibility phase. The majority then reiterates the

holding of Higgs that the word “involves” in (c)(2) and (c)(4) necessitates a circumstance

specific analysis. See ante at 47. Again, for the reasons explained above, James and

Johnson have squarely rejected this conclusion.

       The text of the FPDA clearly focuses on a person’s having been convicted, and not

on the committed conduct. A comparison of the statutory language in the FDPA and that


                                            74
in the ACCA and the INA—where we do apply the categorical approach—is

illuminating:

          • “[T]he defendant has previously been convicted of a Federal or State
            offense punishable by a term of imprisonment of more than 1 year,
            involving the use or attempted or threatened use of a firearm (as defined in
            section 921) against another person.” 18 U.S.C. § 3592(c)(2) (emphasis
            added) (FDPA).

          • “The defendant has previously been convicted of 2 or more Federal or State
            offenses, punishable by a term of imprisonment of more than 1 year,
            committed on different occasions, involving the infliction of, or attempted
            infliction of, serious bodily injury or death upon another person.” Id.
            § 3592(c)(4) (emphasis added) (FDPA).

          • “In the case of a person who violates section 922(g) of this title and has
            three previous convictions by any court . . . for a violent felony or a serious
            drug offense, or both . . . such person shall be fined under this title and
            imprisoned not less than fifteen years . . . .” Id. § 924(e)(1) (emphasis
            added) (ACCA).

          • “Any alien who is convicted of an aggravated felony at any time after
            admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii) (emphasis added)
            (INA).

There can be no meaningful textual difference between “has previously been convicted”

as is found in the FDPA, “has . . . previous convictions,” as is found in the ACCA, and

“is convicted” as found in the INA. The majority focuses on drawing out distinctions

between the FDPA and the ACCA, but never addresses the stark textual similarity that

exists between the FDPA and the INA.

      Further illustrating the importance of this textual analysis are the Court’s holdings

in Nijhawan v. Holder, 557 U.S. 29 (2009) and Kawashima v. Holder, 565 U.S. 478

(2012), two different cases interpreting a provision of the Immigration and Nationality

Act (INA), 8 U.S.C. § 1101, et seq. The INA provides that “Any alien who is convicted
                                           75
of an aggravated felony at any time after admission is deportable.”               8 U.S.C.

§ 1227(a)(2)(A)(iii). The INA then goes on to define “aggravated felony” in a number of

ways, one of which is “an offense that [1] involves fraud or deceit [2] in which the loss to

the victim or victims exceeds $10,000.” Id. § 1101(a)(43)(M)(i). Interestingly, the Court

has interpreted the two different clauses in this same statutory provision to require

different approaches—one categorical, and one circumstance-specific.

       In Nijhawan, the Court had considered the second part of that definition—the

“loss” clause. The Court concluded that the “loss” clause required circumstance-specific

analysis, and thus did not require application of the categorical approach. 557 U.S. at 32.

The Court reasoned that the definition of “aggravated felony” in the INA contained two

types of definitions for the term: (1) generic crime definitions; and (2) specific

circumstances definitions. Id. at 37–38. In concluding that the “loss” phrase was a

specific circumstances definition, the Court held that the “loss” phrase “refer[s] to the

conduct involved ‘in’ the commission of the offense of conviction, rather than to the

elements of the offense.” Id. at 39.

       Later, in Kawashima, the Court considered the first part of the definition—the

“fraud or deceit” clause.     When considering that part of the definition, the Court

“employ[ed] a categorical approach by looking to the statute defining the crime of

conviction, rather than to the specific facts underlying the crime.” 565 U.S. at 483.

Thus, even where the Court had already considered part of the statutory provision to be

circumstance-specific, the Court still in a later case applied the categorical approach to

another part of the same provision based on the textual differences between the two

                                            76
clauses. The aggravators in (c)(2) and (c)(4) much more closely resemble the “fraud or

deceit” clause to which the categorical approach is applied, and not the “loss” clause

under which there is a circumstance-specific analysis. To the extent the government and

the majority argue that because the categorical approach does not apply to some

aggravators means it cannot apply to any aggravators, this pair of cases soundly rejects

such a position.

       Additionally, the majority focuses on the specifics of the sentencing hearing in

order to conclude that the text of the FDPA does not support applying the categorical

approach.    Ante at 46–47.    The majority concludes that because aggravating and

mitigating evidence may be presented during the sentencing hearing, this indicates that

the categorical approach cannot be applied. Id. This emphasis is misplaced not only for

the reasons explained above regarding eligibility versus selection, but also because it

ignores what actually happens in an ACCA case.

       In an ACCA case, once the court applies the categorical approach to determine

whether the mandatory minimum sentencing enhancement applies, that does not conclude

the sentencing process.   The court must still go through the Guidelines, determine

whether there should be changes to the offense level, and determine an appropriate

sentence guided by the sentencing factors in 18 U.S.C. § 3553(a). Nothing prohibits a

sentencing court from considering the specifics of previous offenses in determining, for

example, whether a lengthier sentence is needed to ensure deterrence. Indeed, 18 U.S.C.

§ 3553(a) specifically instructs the sentencing court to consider “the nature and

circumstances of the offense and the history and characteristics of the defendant.” 18

                                          77
U.S.C. § 3553(a)(1) (emphasis added). I can see no meaningful distinction between those

instructions to a sentencing court in a non-capital case, and the instruction that at a

sentencing hearing for a capital defendant “information may be presented as to any

matter relevant to the sentence, including any mitigating or aggravating factor.” 18

U.S.C. § 3593(c) (cited by the majority, ante at 46). And yet, the majority concludes that

the former permits the categorical approach, while the latter prohibits it.

       Finally, in rejecting the textual argument, the majority fears that employing the

categorical approach would be unwieldy, because the meaning of the (c)(2) and (c)(4)

aggravators “would carry different meanings throughout the penalty phase.” Ante at 48.

This is an overstated fear, and internally inconsistent with our approach to the FDPA

sentencing process. Other statutory language from FDPA has different meanings in the

eligibility and selection phases, and this has not proved problematic. For instance, the

plain text of the FDPA requires only that the jury “identify[] any aggravator factor or

factors set forth in section 3592 found to exist” to sentence a defendant to death Id.

§ 3593(d). However, this scheme has been interpreted to require that for the purposes of

eligibility, that provision from § 3593(d) must mean a specifically enumerated factor

under § 3592, but for the purposes of selection, it means the additional non-statutory

aggravators. See Jones, 527 U.S. at 377–78 & n.2. This language “carry[ing] different

meanings throughout the penalty phase,” ante at 48, has not proved problematic, and thus

this concern should not drive our reasoning here.

       In sum, I find the text supports and mandates that we apply the categorical

approach to the (c)(2) and (c)(4) aggravators.

                                             78
                                              b.

       Turning next to concerns between judge and jury, I recognize that the same Sixth

Amendment concerns that exist in the ACCA context are not present in the FDPA

context, as the statute requires the sentencing decisions to be rendered either by the jury

or the court upon the defendant’s motion and the government’s approval. See 18 U.S.C.

§ 3593(b). However, the role of the jury is still a relevant factor to be considered. The

majority concludes that applying the categorical approach would “completely usurp[]”

the jury’s statutory role in capital sentencing. Ante at 49. This is incorrect.

       Applying the categorical approach would be entirely consistent with the role of the

jury in the FDPA.      The judge would first determine whether the prior convictions

categorically qualify under (c)(2) and (c)(4).        Then, the jury would determine at

eligibility whether the government has sufficiently proved that the prior convictions

exist. 6 Assuming the case moves on to selection, the jury would then hear all relevant


       6
         To the extent this is open to criticism that this would be a perfunctory role for the
jury to perform, I note that we require it of the jury in the context of an 18 U.S.C.
§ 922(g)(1) felon in possession case. The jury must find that the defendant was actually a
felon prohibited from possessing a firearm as an element of the offense. See United
States v. Langley, 62 F.3d 602, 604 (4th Cir. 1995) (en banc) (laying out the elements of
the § 922(g)(1) offense, the first of which is the defendant “had been convicted in some
court of a crime punishable by a term of imprisonment exceeding one year”). Although
often stipulated to by the defendant for strategic reasons, the jury still must find that
element. See United States v. Muse, 83 F.3d 672, 679 (4th Cir. 1996) (“[O]nce a
defendant pleads not guilty to a crime and elects to proceed before a jury, the district
court must instruct, and the jury must consider, whether the government has proved
beyond a reasonable doubt all the elements involved in the crime charged—even if the
defendant and the government have entered a stipulation as to certain of those
elements.”).


                                             79
evidence about prior convictions for its selection decision, and appropriately return

findings about aggravating factors, mitigating factors, and a sentence recommendation.

This envisioned scheme does not detract from the jury’s prescribed function of

“consider[ing] each . . . aggravating factor[] for which notice has been given and

determin[ing] which, if any, exist.” 18 U.S.C. § 3592(c).

       Further, in expressing its concerns regarding the role of the jury, the majority

ignores the way in which we already use this scheme under the ACCA for offenses

committed under 18 U.S.C. § 924(c)(1)(A), which proscribes using or carrying a firearm

during and in relation to a crime of violence as defined by 18 U.S.C. § 16. In those

crimes, the court first determines—under the categorical approach—whether the alleged

underlying offense qualifies as a crime of violence. The jury then determines—using all

available facts—(1) whether a crime of violence was committed; and if so, (2) whether a

firearm was used during that crime. See United States v. Hopkins, 310 F.3d 145, 152–53

(4th Cir. 2002). Thus, the role of the jury under my interpretation for the eligibility stage

of the (c)(2) and (c)(4) aggravators is similar to how we consistently use the jury in the

determination of guilt or innocence under the ACCA.

       Therefore, while recognizing a lessened Sixth Amendment concern on this issue, I

conclude that the jury would retain a meaningful role in the assessment of eligibility

factors under the categorical approach.




                                             80
                                             c.

        Finally, the issue of perceived unfairness weighs in favor of applying the

categorical approach. The majority concludes that because the FDPA does not require

bifurcated sentencing proceedings, there can be no perceived unfairness to the defendant.

Ante at 50. The majority further concludes that the categorical approach would fail to

genuinely narrow the class of death eligible defendants. Ante at 51. I disagree on both

points. 7

        In responding to both conclusions from the majority I am again guided by the

significant difference that must exist in the eligibility and selection phase of sentencing.

Even if conducted in one unified hearing, there are still different standards guiding the

jury regarding what evidence may be considered at each phase, a point I make in great

detail in Sections II.B.2 and II.B.3.a, supra, and need not repeat here.

        The second conclusion additionally twists death penalty jurisprudence completely.

It is quite bizarre to find that applying the categorical approach to these aggravators

somehow runs afoul of the Eight Amendment requirement that statutory aggravators

“genuinely narrow the class of persons eligible for the death penalty.” Zant, 462 U.S. at

877. Applying the categorical approach will necessarily decrease the number of death

eligible defendants under these aggravators, not increase the number. This concern is


        7
         Having found that Higgs’s holding was implicitly overruled, I do not reach the
issue of drawing a distinction between the unitary sentencing proceeding that occurred in
Higgs and the bifurcated sentencing proceeding that occurred below. Thus, I do not
respond to the majority’s arguments on this point.


                                             81
especially strange in light of our shared conclusion that permitting post-offense

convictions to qualify as previous convictions “expands the class of offenders with

previous convictions . . . [and] nonetheless narrows the class of all murderers to only

murderers with previous convictions.” Ante at 36. Applying the categorical approach

further does not narrow the class of defendant in an arbitrary manner such that this

interpretation would otherwise run afoul of the Eighth Amendment. Cf. Godfrey v.

Georgia, 446 U.S. 420, 427 (1980) (“[T]he penalty of death may not be imposed under

sentencing procedures that create a substantial risk of that the punishment will be

inflicted in an arbitrary and capricious manner.”).

       Moreover, the majority also argues that the categorical approach would prevent a

jury from giving a sentence of death to “the most culpable defendants committing the

most serious offenses,” Miller v. Alabama, 132 S. Ct. 2455, 2467 (2012). Notably, this

fear that defendants would be excluded is at odds with the majority’s concern that the

class of eligible persons is not genuinely narrowed. And nothing about this approach

would violate the requirement that the class of death-eligible defendants be narrowed in a

genuine manner, as the categorical approach is, in fact, “objective, evenhanded, and

substantively rational.” See Caro, 597 F.3d at 623 (quoting Zant, 462 U.S. at 879) (cited

by majority, ante at 51).

       Additionally, this concern is completely unfounded. Congress has made clear who

the “most culpable” defendants are—those who satisfy the statutory aggravators. It is not

for us to make a moral judgment about who should and should not be considered the

“most culpable;” it is for us to interpret the statutory aggravator as written by Congress

                                             82
and determine whether a defendant actually falls within that aggravator. Further, so long

as the defendant’s prior convictions qualify, nothing about applying the categorical

approach at the eligibility phase would prevent information about the specifics of the

prior convictions from being introduced at the selection phase. Additionally, if there are

other aggravators that make the defendant death eligible, the categorical approach to the

prior convictions statutory aggravator does not matter for the purposes of eligibility, and

the information could be presented to the jury as a non-statutory aggravator during

selection.

       The real issue in determining unfairness to the defendant is the inequity that would

occur if non-elemental facts were used to render the defendant death eligible. Using such

facts is inherently unfair, for “[s]tatements of ‘non-elemental fact’ in the records of prior

convictions are prone to error precisely because their proof is unnecessary.” Mathis, 136

S. Ct. at 2253. The reasoning for why this would be unfair to defendants in the ACCA

context rings true in the FDPA context:

       At trial, and still more at plea hearings, a defendant may have no incentive
       to contest what does not matter under the law; to the contrary, he “may
       have good reason not to”—or even be precluded from doing so by the
       court. When that is true, a prosecutor’s or judge’s mistake as to means,
       reflected in the record, is likely to go uncorrected. Such inaccuracies
       should not come back to haunt the defendant many years down the road by
       triggering a lengthy mandatory sentence.

Id. (citations and footnote omitted). But in the FDPA context, this does not trigger a

lengthy mandatory sentence; instead, it triggers a defendant’s actual life and right to

continued existence being put in jeopardy. There can be no greater unfairness.



                                             83
       Therefore, I find that perceived unfairness to the defendant also weighs in favor of

applying the categorical approach.


                                            C.

       Finally, I would assess the convictions used by the government to determine

whether they satisfy the (c)(2) and (c)(4) aggravators.       In order for Torrez’s death

sentence to be vacated, the convictions must fail to satisfy both of the aggravators. I

would conclude that they do.


                                             1.

       Torrez’s prior convictions under Virginia law cannot make him death eligible

under (c)(2). To qualify as a prior conviction under (c)(2), the prior conviction must

involve “a firearm (as defined in section 921 [of Title 18]).” 18 U.S.C. § 3592(c)(2).

Instructive on this issue is Mellouli v. Lynch, 135 S. Ct. 1980 (2015), an immigration case

applying the categorical offense to a prior state drug conviction. There, the alien had

pleaded guilty to a misdemeanor drug offense in Kansas; however, neither the criminal

charge nor the plea agreement identified which drugs qualified as controlled substances,

and the statute broadly covered multiple controlled substances. Id. at 1983. Immigration

officials then sought to remove the alien under a provision of the INA that “authorizes the

removal of an alien ‘convicted of a violation of . . . any law or regulation of a State, the

United States, or a foreign country relating to a controlled substance (as defined in

section 802 of Title 21).’” Id. at 1984 (quoting 8 U.S.C. § 1227(a)(2)(B)(i)) (omission in

original). The Kansas state crime did not define a controlled substance with respect to

                                            84
the federal definition contained in 21 U.S.C. § 802; indeed, “it was immaterial under that

[state] law whether the substance was defined in 21 U.S.C. § 802,” and the state

prosecutors did not “charge, [n]or seek to prove, that [the alien] possessed a substance on

the § 802 schedules.” Id. Accordingly, the Court found that federal immigration law did

not authorize removal, because under the categorical approach, the government could not

“connect an element of the alien’s conviction to a drug ‘defined in [§ 802].’” Id. at 1991

(addition in original).

       Torrez’s conviction and the (c)(2) aggravator present the same problem. The

(c)(2) aggravator specifically links the definition of a firearm to 18 U.S.C. § 921.

Therefore, we must look to the definitions in 18 U.S.C. § 921 of a firearm, and compare

that definition with the conduct criminalized by the Virginia statutes.         Section 921

exempts antique firearms from the definition of “firearm,” id. § 921(a)(3); exempts

certain shotguns, id.§ 921(a)(4)(B); and requires that the weapon actually be capable of

expelling a projectile or being readily converted to do so, id. § 921(a)(3)(A). Section 921

also expressly includes “any destructive device” within the definition of “firearm.” Id.

§ 921(a)(3)(D).

       The statute under which Torrez has four convictions, Va. Code § 18.2-53.1,

prohibits the use, attempted use, or display of “any pistol, shotgun, rifle, or other firearm”

in connection with certain felonies. As the Supreme Court of Virginia has held, this

statute criminalizes not only “the use or display of an actual firearm that has the

capability of expelling a projectile by explosion,” but also “an instrumentality that has the

appearance of having the capability of an actual firearm.” Startin v. Commonwealth, 706

                                             85
S.E.2d 873, 877 (Va. 2011) (citing Holloman v. Commonwealth, 269 S.E.2d 356, 358

(Va. 1980)). Thus, Virginia gives “a broad construction” to the term “firearm” in Va.

Code. § 18.2-53.1. Id. at 878 (internal quotation marks omitted).

         Torrez also has one conviction for common law burglary under Va. Code § 18.2-

89, which has a grading enhancement if the defendant “was armed with a deadly weapon

at the time.” Although no case from the Supreme Court of Virginia has defined “deadly

weapon” for the purposes of this burglary statute, there have been lower court opinions

defining the term “deadly weapon” for the purposes of another statute which criminalized

bank burglary. See Justiss v. Commonwealth, 734 S.E.2d 699, 707 (Va. App. 2012) (“A

deadly weapon is any object or instrument, not part of the human body, that is likely to

cause death or great bodily injury because of the manner and under the circumstances in

which it was used.” (internal quotation marks and alterations omitted) (citing Cox v.

Commonwealth, 240 S.E.2d 524, 526 (Va. 1978)); see also Va. Prac. Jury Instructions

§ 80:23 (same). Thus, a knife could be used as “a deadly weapon” to satisfy the grading

enhancement in Virginia.

         Because Virginia criminalizes even the use of toy guns that look like real ones

under Va. Code § 18.2-53.1 and the use of any deadly weapon during a burglary under

Va. Code § 18.2-89, neither crime requires the use of “a firearm (as defined in section

921).”    Additionally, the record discloses no evidence that the Virginia prosecutors

sought to prove that the weapons used by Torrez in the commission of those offenses

satisfied the federal definition of “a firearm (as defined in section 921).”

         Accordingly, Torrez has no convictions that satisfy the (c)(2) aggravator.

                                              86
                                              2.

          In order for the (c)(4) aggravator to be met, the prior offenses must (1) be

committed on at least two separate occasions, and (2) “involv[e] the infliction of, or

attempted infliction of, serious bodily injury or death upon another person.” 18 U.S.C.

§ 3592(c)(4). The two relevant dates here are February 10, 2010, and February 27,

2010—the two dates on which the Arlington Offenses were committed. Torrez does not

challenge whether the February 27, 2010 offenses satisfy (c)(4), but he does challenge the

February 10, 2010, offenses. 8 If the February 10, 2010, offenses do not categorically

“involv[e] the infliction of, or attempted infliction of, serious bodily injury or death upon

another person,” then the (c)(4) aggravator cannot be met.

          Torrez was convicted of committing robbery in violation of Va. Code § 18.2-58

and abduction with nefarious intent in violation of Va. Code § 18.2-48 on February 10,

2010, in connection with his attack on M.N. I would find that neither offense can satisfy

(c)(4).

          The requirement in (c)(4) of “seriously bodily injury or death” is similar to what

we know as the “force clause” contained in the definition of “violent felony” under the

ACCA and the definition of “crime of violence” under the career offender sentencing



          8
         Torrez does not concede that the February 27, 2010 offenses qualify, see
Appellant’s Br. at 73, but as the government rightly responds, failure to present an
argument as to those offenses in the opening brief constitutes waiver, see Appellee’s Br.
at 84–85.


                                              87
guideline, 9 as well as in other areas of Title 18 and the sentencing guidelines. Therefore,

cases interpreting that clause throughout the relevant legal landscape are relevant here.

Importantly, the (c)(4) requirement is higher than the force clause in the ACCA and the

Guidelines. Whereas the ACCA and the Guidelines require only “physical force” and

permit such force to be “threatened,” see 18 U.S.C. § 924(e)(2)(B)(i); U.S.S.G.

§ 4B1.2(a)(1), the (c)(4) aggravator requires actual or attempted infliction of “serious

bodily injury or death,” 18 U. S.C. § 3592(c)(4). Thus, if a crime categorically fails

under either the force clause of the ACCA or the Guidelines, it must a fortiori fail the

(c)(4) requirement.


                                             a.

       First, we look at Torrez’s conviction for common law robbery. Recently, in

United States v. Winston, 850 F.3d 677 (4th Cir. 2017), we considered whether common

law robbery in violation of Va. Code § 18.2-58 was a violent felony under the ACCA.

We held that “the minimum conduct necessary to sustain a conviction for Virginia

common law robbery does not necessarily include the use, attempted use, or threatened

use of ‘violent force . . . capable of causing physical pain or injury to another person.’”

850 F.3d at 685 (quoting Johnson v. United States, 559 U.S. 133, 140 (2010)) (omission

       9
           See 18 U.S.C. § 924(e)(2)(B)(i) (“[T]he term ‘violent felony’ means any
crime . . . that has as an element the use, attempted use, or threatened use of physical
force against the person of another . . . .”) (emphasis added); U.S.S.G. § 4B1.2(a)(1)
(“The term ‘crime of violence’ means any offense . . . that has as an element the use,
attempted use, or threatened use of physical force against the person of another . . . .”)
(emphasis added).


                                            88
in original). Accordingly, we found that robbery in violation of Va. Code § 18.2-58

could not satisfy the force clause of the ACCA and could not be a prior conviction for the

purposes of the ACCA sentencing enhancement. As such, Torrez’s robbery conviction

also cannot qualify under the (c)(4) aggravator.


                                               b.

       Because Torrez’s robbery conviction fails to satisfy the (c)(4) aggravator, the

abduction offense must do so in order for the death sentence to be upheld. It does not.

Torrez was conviction of abduction with nefarious intent in violation of Va. Code § 18.2-

48. This offense raises the issue of divisibility under the categorical approach, because it

lays out five different options for violating the statute.

       If a statute “set[s] out elements in the alternative and thus create[s] multiple

versions of the crime,” we consider the statute divisible and apply what we call the

modified categorical approach. United States v. Montes-Flores, 736 F.3d 357, 365 (4th

Cir. 2013) (internal quotation marks omitted). “[A] crime is divisible [for the purposes of

the categorical approach] only if it is defined to include multiple alternative elements

(thus creating multiple versions of a crime), as opposed to multiple alternative means (of

committing the same crime).” Omargharib v. Holder, 775 F.3d 192, 198 (4th Cir. 2014)

(citations omitted). In the instance of a divisible crime, we “look[] to a limited class of

documents (for example, the indictment, jury instructions, or plea agreement and

colloquy) to determine what crime, with what elements, a defendant was convicted of.”

Mathis, 136 S. Ct. at 2249.


                                              89
       I need not decide whether the offense set out in Va. Code § 18.2-48 is divisible; I

can assume it is for the purposes of this analysis. Assuming divisibility and looking to

the jury’s actual verdict form, Torrez was convicted of “abduction . . . with the intent to

defile and/or the intent to extort money or gain pecuniary benefit” in violation of Va.

Code § 18.2-48. J.N. 257. Thus, it is entirely unclear from the verdict form if the intent

agreed upon by the jury was “intent to defile” or “intent to extort money or gain

pecuniary benefit” with respect to his abduction of M.N. Assuming the least culpable

criminal conduct under the categorical approach, the jury could have found Torrez guilty

of abduction with intent to extort money. Extortion requires no force, let alone the actual

or threatened infliction of serious bodily injury or death. As a result, the abduction

offense does not qualify under the (c)(4) aggravator. Therefore, no February 10, 2010,

offense qualifies, and thus (c)(4) cannot be satisfied because the only qualifying crimes

were all committed on February 27, 2010.


                                           III.

       Because I find that our holding in Higgs with respect to the categorical approach

has been implicitly overruled by the Supreme Court, I would consider the issue anew and

find that the categorical approach should apply to the aggravators found at 18 U.S.C.

§ 3592(c)(2) & (c)(4). Then, applying the categorical approach, I would find that the

prior convictions asserted by the government do not satisfy either of those statutory

aggravators. Accordingly, I would vacate the sentence of death in this case, strike the




                                            90
(c)(2) and (c)(4) aggravators from the government’s notice of intent to seek the death

penalty, and remand for resentencing.

      The death penalty is a complicated area of our law, especially when dealing with

what makes a defendant eligible for capital punishment. I do not question the wisdom of

Congress in passing the FDPA, nor do I question the wisdom of this nation’s vaunted

prosecutors from using all available tools in their zealous prosecution of crime. But

capital punishment must be effected fairly, consistently, without prejudice, and with the

opportunity for mercy. Although the categorical approach may render certain defendants

who would otherwise be death eligible no longer able to be considered for capital

punishment, applying this understanding hews to the language of the statute as drafted by

Congress.

      For these reasons, I respectfully dissent from the majority’s holding with respect

to Torrez’s sentence.




                                           91
