Rickey Thompson v. United States (11th Cir. May 2019)

Section 924(c) – The defendant’s second degree murder convictions under 18 U.S.C. § 1111 constituted “crimes of violence” under § 924(c)’s elements and residual clause.

Rickey Thompson, a Bahamian boat captain convicted of participating in a drug and alien smuggling conspiracy, filed an authorized second § 2255 motion in which he argued that his two convictions under 18 U.S.C. 924(c) were invalid after the Supreme Court’s decisions in Johnson v. United States and Sessions v. Dimaya. Thompson specifically argued his second-degree murder offenses under 18 U.S.C. § 1111 did not qualify as predicate “crimes of violence” under § 924(c)’s residual or elements clause.

The Court affirmed the district court’s denial of the motion. First, the Eleventh Circuit’s decision in Ovalles v. United foreclosed Thompson’s vagueness challenge to § 924(c). Second, Thompson’s offense involved pointing a firearm at several of the passengers he agreed to smuggle and throwing them overboard, where three of them drowned. Under the conduct-based approach announced in Ovalles, this was sufficient to find that Thompson’s conduct presented a “serious potential risk of physical injury to another,” thus constituting a “crime of violence” under the residual clause.

The Court also held that Thompson’s second degree murder offenses under § 1111 were crimes of violence under the elements clause of § 924(c). Citing last year’s decisions where the Court held that Florida’s first- and second-degree murder statutes were crimes of violence under the ACCA’s elements clause (United States v. Jones; Hylor v. United States), the Court held that federal second-degree murder is similarly situated in that the only thing distinguishing first- and second-degree murder under federal law is the mens rea element, which is irrelevant in determining whether an offense involves physical force capable of causing pain or injury. And either way, the Court noted, convictions for first- or second-degree murder under § 1111 require “malice aforethought” as an element.

Appeal from the Southern District of Florida

Opinion by Hull, joined by W. Pryor and Grant

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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