Crime of Violence After an Intentional Officer Killing

On October 27, 2026, the Tenth Circuit held that the federal crime of intentionally killing a law enforcement officer during a drug offense is a "crime of violence" for a separate gun conviction under 18 U.S.C. § 924(c). The published opinion is United States v. Barrett, No. 23-7086. The court assumed the gun count had rested on a clause the Supreme Court has struck down, and it still affirmed the denial of a motion to vacate that conviction. Read the decision (PDF).

What happened

In September 1999, state officers served a no-knock search warrant at Kenneth Barrett's home in eastern Oklahoma. Barrett shot at the officers. He killed Trooper David Eales and wounded Trooper John Hamilton.

A federal grand jury later charged three counts. Count 1 was using a firearm during a drug trafficking crime, resulting in death, under § 924(c)(1)(A) and § 924(j). Count 3 was intentionally killing a state law enforcement officer during a drug trafficking crime, under 21 U.S.C. § 848(e)(1)(B). Count 2 was a second § 924(c) charge, and the indictment named the Count 3 offense as the "crime of violence" for that count.

A federal jury convicted Barrett on all three counts. It recommended life in prison on the two gun counts and death on the § 848(e)(1)(B) count. The district court imposed those sentences. Years later, in a different appeal, the Tenth Circuit vacated the death sentence and sent Count 3 back for resentencing. The government then withdrew its notice that it would seek death. This opinion is not about that resentencing. It is about a later motion to wipe out Count 2.

Barrett had already filed one motion under 28 U.S.C. § 2255. A second motion needs permission from the court of appeals. See § 2255(h) and § 2244(b)(3)(A). The Tenth Circuit allowed the second motion so Barrett could argue that United States v. Davis, 588 U.S. 445 (2019), invalidated Count 2. The district court denied the motion. It later granted a certificate of appealability limited to Count 2. The certificate did not include his request to undo the sentences on Counts 1 and 3.

The elements clause after Davis

Section 924(c) adds prison time when a person uses or carries a firearm during a "crime of violence," or possesses a firearm in furtherance of that crime. The added term runs on top of the sentence for the other crime. Our page on § 924(c) explains those mandatory terms.

The statute defines "crime of violence" in two ways. The elements clause, § 924(c)(3)(A), covers a felony that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." The residual clause, § 924(c)(3)(B), used to cover a felony that "by its nature, involves a substantial risk that physical force" may be used. Davis held that the residual clause is too vague to be enforced. After Davis, a crime-of-violence gun count can stand only if the other offense meets the elements clause.

Courts decide that question with the categorical approach. They do not look at how one person committed the crime. They ask whether the statute always requires the government to prove, as an element, the use, attempted use, or threatened use of force. See United States v. Taylor, 596 U.S. 845, 850 (2022).

Recklessness is not enough. In Borden v. United States, 593 U.S. 420 (2021), the Supreme Court held that an offense a person can commit recklessly does not satisfy an elements clause that requires force "against the person of another." The Tenth Circuit applied that rule to § 924(c)(3)(A). If § 848(e)(1)(B) can be committed recklessly, it is not categorically a crime of violence. If it always requires a more culpable mental state, it is.

The court of appeals assumed, for this case, that Count 2 had rested on the residual clause. It then asked whether that assumed error had a substantial and injurious effect on the sentence. It held that the error did not, because the offense meets the elements clause under current law.

What §848(e)(1)(B) requires

Section 848(e)(1)(B) applies to a person who, during or in furtherance of certain drug felonies, or while trying to avoid arrest, prosecution, or service of a prison sentence for such a felony, "intentionally kills or counsels, commands, induces, procures, or causes the intentional killing" of a federal, state, or local law enforcement officer engaged in official duties, when that killing results. The punishment is imprisonment of not less than 20 years, up to life, or death.

The fight was over the word "causes." Barrett argued that a person can cause someone else to commit an intentional killing with a reckless mental state, or with even less. He pointed to a leader who, seeing officers approach, tells others to "do something." That instruction could mean destroy the drugs, or it could mean kill the officers. If an underling then kills an officer, Barrett said, the leader caused an intentional killing without intending the death.

The Tenth Circuit held that every way of committing the offense requires an intentional mental state. The parties did not dispute that "intentional" in a criminal statute means at least purpose, and that it may also cover knowing conduct. See United States v. Smith, 104 F.4th 314, 327 (D.C. Cir. 2024). That is a higher level of culpability than recklessness. The court gave three reasons, following the D.C. Circuit's reading of the same verb string in § 848(e)(1)(A). See Smith, 104 F.4th at 328–30.

The statute already names the mental state. It says "intentionally kills," and it says "the intentional killing." When a criminal statute states one kind of culpability and does not split that requirement among the elements, that mental state applies to all the material elements, unless a contrary purpose plainly appears. See Rehaif v. United States, 588 U.S. 225, 229 (2019). The court read "intentional" as covering each listed act: kills, counsels, commands, induces, procures, or causes.

The listed verbs describe deliberate acts. To counsel, command, induce, or procure is to recommend, order, prevail upon, or bring something about by effort. "Causes" has broader dictionary meanings, including a meaning with no intent at all. A word gets a more precise meaning from the words next to it. The court read "causes" in line with those neighboring verbs, so it too requires intentional conduct.

The punishment is severe. The same range, from 20 years to life or death, applies to a person who kills and to a person who causes a killing. Severe penalties support a strong mental-state requirement. See Ruan v. United States, 597 U.S. 450, 460 (2022). In the "do something" example, the government would still have to prove that the leader, through that instruction, actually intended the others to kill an officer.

Why the aiding-and-abetting statute did not change the reading

Barrett compared the statute with 18 U.S.C. § 2. Section 2(a) uses many of the same verbs: aids, abets, counsels, commands, induces, or procures. Section 2(b) then says "willfully causes." Barrett argued that Congress left "willfully" off "causes" in § 848(e)(1)(B) on purpose, so "causes" there is broader.

The court rejected that comparison. In § 2(b), "causes" stands alone, without neighboring verbs that already require intent, so Congress added "willfully" to make the mental state plain. In § 848(e)(1)(B), the surrounding words already do that work. The missing adverb does not drop the offense down to recklessness.

The court summed up the statute as "infused with intentionality." Because the offense can be committed only with an intentional mental state, it categorically qualifies as a crime of violence under the elements clause. Any assumed Davis error was harmless. The court affirmed the denial of the § 2255 motion and the related order refusing to alter that judgment. Count 2 stands. The court did not decide whether vacating Count 2 would have required a new sentence on Counts 1 and 3, because the certificate of appealability did not include that question and Count 2 was affirmed.

The guideline definition is a different text

The 2026 Guidelines Manual, effective November 1, 2026, uses its own definition. USSG §4B1.2(a) says a "crime of violence" is an offense under federal or state law, punishable by more than one year, that "has as an element the use, attempted use, or threatened use of physical force against the person of another," or is one of the listed offenses, including murder.

That definition is for the career offender guideline. It is not § 924(c)(3). The guideline elements clause speaks of force against a person. It does not add the words "or property," which the gun statute includes. Barrett decides the statute. It does not decide whether a § 848(e)(1)(B) conviction counts under §4B1.2. Our page on the Armed Career Criminal Act and the career offender guideline compares those definitions.

Who it affects

• A person charged with a § 924(c) count based on § 848(e)(1)(B) in Colorado, Kansas, New Mexico, Oklahoma, Utah, or Wyoming. Barrett is a published Tenth Circuit opinion, so it binds district courts in that circuit. The government still has to prove an intentional mental state. A reckless theory of "causes" is not enough, under this reading, and it also does not take the offense outside the elements clause.
• A person whose § 924(c) count used a drug trafficking crime, not a crime of violence. Count 1 in this case was that kind of charge. Davis addresses the crime-of-violence definition. It does not remove a gun count that rests on a drug trafficking crime.
• A person who has already been sentenced and wants to use Davis. A court can assume the old residual clause was used and still deny relief if the predicate offense meets the elements clause. A second § 2255 motion also needs permission from the court of appeals. This opinion does not, by itself, reopen a sentence that is already final.
• A person sentenced outside the Tenth Circuit. The D.C. Circuit reached the same reading of the matching language in § 848(e)(1)(A). Barrett binds courts in the Tenth Circuit. Other circuits apply their own precedent to the same statutory text.