Completed Carjacking Remains Crime of Violence

US v. Fulks: Fulks and his codefendant, Basham, escaped from prison together and went on a multi-state crime spree that resulted in a kidnapping, rape, and murder in West Virginia (which is not the subject of this appeal) and a similar kidnapping, rape, and murder in South Carolina (which is the subject of this appeal). They were both charged with numerous offenses, including kidnapping, carjacking, and use of a firearm in connection with a crime of violence and conspiracy to use a firearm during a crime of violence. Fulks pleaded guilty to all counts, while Basham was convicted at trial on all counts. Both were sentenced to death (plus 744 months in prison). They challenged, via a second or successive §2255 motion, whether their firearm convictions were invalid after Johnson and its progeny because the alleged crimes of violence in which the firearms were used no longer qualified as such. The district court denied their motions.

On appeal, the Fourth Circuit affirmed the denial of Fulks’ and Basham’s §2255 motions. The parties agreed that, under Fourth Circuit precedent, kidnapping could no longer serve as a predicate crime of violence. Fulks and Basham argued the carjacking statute was indivisible and that because attempted carjacking could not be a crime of violence (as the Supreme Court held that attempted Hobbs Act robbery was not) then carjacking categorically was not a crime of violence. The court disagreed on both fronts. First, the court concluded that the carjacking statute was divisible between completed and attempt offenses. Second, the court held that it was clear that what Fulks and Basham were convicted of was completed carjacking, not attempt. Third, the court held that because completed carjacking requires the use or threatened use of force it was a crime of violence that could sustain Fulks’ and Basham’s convictions. Finally, the court held that the record was clear that their convictions were based on both a valid (carjacking) and invalid (kidnapping) predicate and therefore could not be vacated.