FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MCKENZY ALII ALFRED, No. 19-72903 Petitioner, Agency No. v. A215-565-401

MERRICK B. GARLAND, Attorney General, OPINION Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted En Banc September 8, 2022 Pasadena, California Filed March 30, 2023

Before: Mary H. Murguia, Chief Judge, and Sidney R. Thomas, M. Margaret McKeown, Jay S. Bybee, Consuelo M. Callahan, Ryan D. Nelson, Eric D. Miller, Bridget S. Bade, Daniel P. Collins, Kenneth K. Lee and Lawrence VanDyke, Circuit Judges.

Opinion by Judge Bybee; Partial Concurrence and Partial Dissent by Judge Collins; Concurrence in the Judgment by Judge Callahan; Dissent by Judge McKeown; Dissent by Judge VanDyke

2 ALFRED V. GARLAND SUMMARY *

Immigration

Denying McKenzy Alii Alfred’s petition for review of a Board of Immigration Appeals’ decision that he was removable for having been convicted of an aggravated felony theft offense under 8 U.S.C. § 1101(a)(43)(G), the en banc court held that second-degree robbery under Wash. Rev. Code § 9A.56.190 is a categorical match with generic theft and is therefore a theft offense under § 1101(a)(43)(G). Alfred was convicted under Wash. Rev. Code § 9A.56.190 and served a fifteen-month prison sentence. The BIA concluded that he was removable for having committed an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), which describes “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year.” A panel of this court granted Alfred’s petition for review based on United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), in which this court held that: (1) because aiding and abetting liability is implicit in every criminal charge, a state’s aiding and abetting statute must be folded into the analysis under the categorical approach, and (2) Washington’s aiding and abetting statute is broader than its generic equivalent. Based on Valdivia-Flores, the Alfred panel found that Washington’s robbery statute is a mismatch to its generic

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ALFRED V. GARLAND 3 equivalent such that the Washington statute was not an aggravated felony, and therefore, Alfred was not removable. The en banc court explained that in United States v. Alvarado-Pineda, 774 F.3d 1198 (9th Cir. 2014), this court concluded that a conviction for Washington second-degree robbery, where accompanied by a sentence of at least one year, qualifies as a theft aggravated felony. Neither Alfred nor the government questioned that decision; rather, the parties disagreed over whether and how Washington’s accomplice liability statute affected Alfred’s robbery conviction. A plurality of the en banc court concluded that it was necessary to consider Washington accomplice liability in conducting the categorical analysis of Washington robbery. The plurality explained that, in Valdivia-Flores, the court relied on Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), in which the Supreme Court concluded that generic theft encompasses aiding and abetting. Noting that Duenas- Alvarez left open the question of whether accomplice liability should be considered when—as is the case with Washington law—a separate statute integrates accomplice liability, the plurality concluded this is a distinction without a difference. The plurality explained that nothing confines the categorial analysis to a single statute of conviction, and the Supreme Court often looks beyond the statute of conviction to see how state courts apply a statute. The plurality further explained that under Washington law, it is impossible to determine whether a defendant was convicted as a principal or accomplice without looking at the underlying facts, but the categorical approach forbids doing so. Because Alfred’s conviction did not establish that he acted as a principal, the plurality concluded that it must consider the possibility he acted as an accomplice. 4 ALFRED V. GARLAND Therefore, the plurality concluded it must consider accomplice liability. The plurality noted its dissenting colleagues agreed on this point, while its concurring colleagues disagreed. In Subsection B of Part IV, a majority of the en banc court held that generic accomplice liability requires a showing that the putative accomplice intentionally aided or abetted another in the commission of the crime. However, because many of the jurisdictions the en banc court surveyed had interpreted this intent requirement as encompassing both purposeful and knowing conduct, the en banc court also concluded that advance knowledge of the crime is sufficient to support a conviction for generic accomplice liability. In so concluding, the en banc court considered four categories of accomplice liability (including those requiring a mens rea of intent and those requiring a mens rea of knowledge) and detailed which jurisdictions fell into which category. The en banc court also found helpful Rosemond v. United States, 572 U.S. 65 (2014), in which the Supreme Court, throughout its opinion, equated intent with “advance knowledge.” Further, the en banc court noted that the blurred line between intent and knowledge is apparent through state law as well. However, the en banc court noted that its holding does not mean that all statutes that fall under the generic definition are to be interpreted the same way, as doing so would ignore the jurisdictional distinctions described. In Subsection C of Part IV, the majority joined the Eleventh Circuit in concluding that Washington and generic accomplice liability are a categorical match. The en banc court explained that both Washington and federal generic accomplice liability require the same standard of proof: the accomplice must have had advance knowledge of the crime he facilitated. In Washington, by statute, an accomplice acts ALFRED V. GARLAND 5 “[w]ith knowledge that [the conduct] will promote or facilitate the commission of the crime,” Wash. Rev. Code § 9A.08.020(3)(a), and Washington courts have held that the state must prove a defendant acted with knowledge that he or she was promoting or facilitating the crime eventually charged. And the Supreme Court has interpreted common law accomplice liability as requiring evidence that a defendant “actively participat[ed] in a criminal venture with full knowledge of the circumstances constituting the charged offense.” Rosemond, 572 U.S. at 77. The en banc court saw no significant daylight between these two standards. In Part V, the majority of the en banc court overruled Valdivia-Flores and, to the extent it remained good law, also overruled United States v. Franklin, 904 F.3d 793 (9th Cir. 2018), abrogated on other grounds by Shular v. United States, 140 S. Ct. 779 (2020), for the same reasons. Having held that second-degree robbery under Wash. Rev. Code § 9A.56.190 is a categorical match with generic theft, the en banc court concluded that Alfred had been convicted of an aggravated felony and denied his petition for review. Concurring in the judgment in part and dissenting in part, Judge Collins, joined by Judges Callahan and Bade as to Parts I and II and joined by Judge VanDyke as to Part III, agreed that a conviction for Washington offense counts as an aggravated felony and that Alfred was removable. However, Judge Collins disagreed with most of the reasoning in the lead opinion. In Part I, Judge Collins wrote that this court held, in Alvarado-Pineda, that a Washington conviction for second- degree burglary, where accompanied by the required sentence, qualifies as an aggravated felony theft offense. ^[6] ALFRED V. GARLAND Judge Collins observed that the lead opinion agreed with Alvarado-Pineda on this point, and that the parties had not questioned Alvarado-Pineda. In Judge Collins’ view, that should be the end of the inquiry. In Part II, Judge Collins observed that his analysis (applying Alvarado-Pineda without considering accomplice liability) was contrary to Valdivia-Flores, but stated that he would overrule Valdivia- Flores to the extent that it requires a comparison of state and federal aiding and abetting theories. Judge Collins concluded that the requirements of aiding and abetting liability do not qualify as “elements” of the underlying offense for purposes of the categorical analysis and that the categorical approach’s “elements-only inquiry” requires the court to disregard such non-elements. In Part III, Judge Collins noted that, in concluding that Washington aiding and abetting law matches its federal analog, the majority made several statements about the scope of federal aiding and abetting law under 8 U.S.C. § 2 that are contrary to well- settled authority. Concurring in the judgment, Judge Callahan, joined by Judge Bade, wrote that because the court need not consider aiding and abetting liability, she concurred in Sections I and II of Judge Collins’ concurrence in part and dissent in part. However, because by the vote of the majority of the en banc panel aiding and abetting liability remained before the court, Judge Callahan also concurred in subsections B and C of Section IV and Section V of Judge Bybee’s opinion and agreed that Washington’s aiding and abetting law is not overbroad. Dissenting, Judge McKeown, joined by Chief Judge Murguia and Judges S.R. Thomas and VanDyke, agreed with the majority that the court must compare the state statute to the federal generic definition of the offense. Judge ALFRED V. GARLAND 7 McKeown also agreed that because Washington’s statutory scheme incorporates accomplice liability into all crimes, the court must consider accomplice liability in the categorical analysis of Washington second-degree robbery. However, Judge McKeown parted ways with the majority in two significant respects. First, she differed on the generic definition of accomplice liability, explaining that a close read of the relevant sources reveals that generic accomplice liability requires a mental state of purpose, which is different than knowledge. Second, Judge McKeown disagreed on whether Washington’s second- degree robbery statute is a categorical match with the generic theft offense, explaining that Washington accomplice liability requires a mental state of knowledge, which is lower than purpose. Judge McKeown would grant Alfred’s petition for review. Dissenting, Judge VanDyke wrote that while he would have liked to join Judge Bybee’s decision, he agreed with Judge Collins and his dissenting colleagues that the analysis therein incorrectly elides the distinction between the mental states of knowledge and purpose to find a categorical match in this case. Judge VanDyke further wrote that while the approach taken by Judge Collins had a lot to commend it as an original matter, he also could not join it entirely because he did not believe Judge Collins’ approach was ultimately reconcilable with what the Supreme Court actually did in Duenas-Alvarez. 8 ALFRED V. GARLAND COUNSEL Aaron Korthuis (argued), Matt Adams, and Leila Kang, Northwest Immigrant Rights Project, Seattle, Washington; Alison Hollinz and Christopher P. Stanislowski, Northwest Immigrant Rights Project, Tacoma, Seattle; for Petitioner. Andrew C. MacLachlan (argued), Bryan S. Beier, and Zoe J. Heller, Senior Litigation Counsel; Jaclyn E. Shea, Trial Attorney; John W. Blakeley, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Brian M. Boynton, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent. Kara Hartzler and Vincent Brunkow, Assistant Federal Public Defenders, Federal Defenders of San Diego Inc., San Diego, California, for Amicus Curiae Ninth Circuit Federal Public and Community Defenders. ALFRED V. GARLAND 9 OPINION BYBEE, Circuit Judge, announced the judgment of the court, in which CALLAHAN, R. NELSON, MILLER, BADE, COLLINS, and LEE, Circuit Judges, concur; and delivered an opinion, in which R. NELSON, MILLER, and LEE, Circuit Judges, concur, and in which CALLAHAN and BADE, Circuit Judges, concur as to Subsections B and C of Part IV and Part V: Petitioner McKenzy Alii Alfred is a noncitizen who was convicted of robbery in Washington. After Alfred finished a fifteen-month prison sentence, the government initiated removal proceedings against him. The Board of Immigration Appeals (“BIA”) found Alfred removable for having committed an aggravated felony. Alfred petitioned for review, and the panel granted relief based on our prior holding in United States v. Valdivia- Flores, 876 F.3d 1201 (9th Cir. 2017). In that case we held that Washington’s accomplice liability statute was “implicit . . . in every criminal charge” and categorically “broader than its federal analogue.” Id. at 1207, 1208. The government petitioned for rehearing en banc, arguing that Valdivia- Flores and the panel decision were incorrect and in direct conflict with a decision of the Eleventh Circuit, Bourtzakis v. United States Attorney General, 940 F.3d 616 (11th Cir. 2019). We granted the petition for rehearing en banc; we now overrule Valdivia-Flores and deny Alfred’s petition for review. 10 ALFRED V. GARLAND I. BACKGROUND A. Factual History Alfred is a citizen of the Republic of Palau. He lawfully entered the United States in 2011 as a noncitizen pursuant to the Compact of Free Association. On February 20, 2018, Alfred went on a one-man crime spree in which he attempted to rob a credit union, successfully robbed a coffee stand, and attempted to steal a car. Police apprehended him shortly thereafter. After his indictment, Alfred pleaded guilty to one count of second-degree robbery and two counts of attempted second-degree robbery. He was given a fifteen-month sentence for each count, with the sentences to be served concurrently. B. Procedural History Shortly after Alfred was released from prison, the Department of Homeland Security (“DHS”) initiated removal proceedings against him. The Notice to Appear charged Alfred as removable for having been convicted of an aggravated felony, a crime of moral turpitude, and an aggravated felony crime of violence. Before the immigration judge (“IJ”), Alfred argued that the statute of conviction for robbery in Washington, Wash. Rev. Code § 9A.56.190, was overbroad under the categorical approach. The IJ rejected this argument, relying on United States v. Alvarado-Pineda, 774 F.3d 1198, 1203 (9th Cir. 2014), in which we held that “a conviction for Washington second-degree robbery, where accompanied by a sentence of at least one year, qualifies as an ‘aggravated felony’ under 8 U.S.C. § 1101(a)(43)(G).” As a result, the IJ ordered Alfred’s removal, for commission of both an aggravated ALFRED V. GARLAND 11 felony and a crime involving moral turpitude. The Board of Immigration Appeals affirmed the IJ’s finding that Alfred had committed an aggravated felony but declined to address whether Alfred was removable on other grounds. Alfred petitioned for review. The panel found that our precedent, namely Valdivia-Flores, compelled it to grant Alfred’s petition. See Alfred v. Garland, 13 F.4th 980, 987 (9th Cir. 2021) (“[I]n this case, our analysis begins and ends with Valdivia-Flores.”). Sitting by designation, Judge Morrison C. England, who authored the majority opinion, concurred specially. 1 Judge Rawlinson concurred in the result. 2 In Valdivia-Flores, we made two key holdings: (1) because aiding and abetting liability is implicit in every criminal charge, a state’s aiding and abetting statute must be folded into our analysis under the categorical approach, and (2) Washington’s aiding and abetting statute is broader than its generic equivalent. Valdivia-Flores, 876 F.3d at 1207– 09. Based on these holdings, the Alfred panel found that Washington’s robbery statute is a categorical mismatch to its 1 Judge England, joined by Judge Bybee, criticized the categorical approach for requiring us to parse statutes to answer irrelevant questions. In this case, “the record contains not even a hint that [Alfred] might have pled guilty as an accomplice. In fact, quite the opposite, he very clearly acted alone. . . . We are engaging in an accomplice liability analysis that in any other context would be utterly irrelevant.” Alfred, 13 F.4th at 988 (England, J., specially concurring). 2 Judge Rawlinson noted that her concurrence was compelled by Valdivia-Flores, in which she dissented. Id. at 989 (Rawlinson, J., concurring in the result); Valdivia-Flores, 876 F.3d at 1211–14 (Rawlinson, J., dissenting). She too criticized the categorical approach. Alfred, 13 F.4th at 990 (“I guess when it comes to application of the Supreme Court’s contrived categorical approach, in the words of my dearly departed Mama Louise: common sense ain’t all that common.”). 12 ALFRED V. GARLAND generic equivalent. 13 F.4th at 986–87. Accordingly, the panel found that second-degree robbery was not an aggravated felony for removal purposes and that, as a result, Alfred was not removable. The government petitioned for rehearing en banc, asking us to overrule Valdivia-Flores. We granted the government’s petition. Alfred v. Garland, 35 F.4th 1218 (9th Cir. 2022). II. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction under 8 U.S.C. § 1252, and we review the BIA’s determinations of law de novo. Vitug v. Holder, 723 F.3d 1056, 1062 (9th Cir. 2013). “[W]hether an offense is an aggravated felony for removal purposes is a question of law.” Chavez-Solis v. Lynch, 803 F.3d 1004, 1006 (9th Cir. 2015) (quoting Chuen Piu Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011)). III. THE CATEGORICAL APPROACH Under the Immigration and Nationality Act (“INA”), the government may order the removal of noncitizens who have committed crimes classified as “aggravated felonies.” 8 U.S.C. § 1227(a)(2)(A)(iii); see also Moncrieffe v. Holder, 569 U.S. 184, 187 (2013). The INA defines aggravated felonies with a list of offenses, including “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(G). The INA specifies “conviction, not conduct, as the trigger for immigration consequences.” Mellouli v. Lynch, 575 U.S. 798, 806 (2015). As a result, the Supreme Court has instructed us to “employ a categorical approach by looking to the statute . . . of conviction, rather than to the specific facts underlying the crime.” Esquivel-Quintana v. ALFRED V. GARLAND 13 Sessions, 581 U.S. 385, 389 (2017) (quoting Kawashima v. Holder, 565 U.S. 478, 483 (2012)). The Court has applied this categorical approach in “several statutory contexts,” including the Armed Career Criminal Act (ACCA). Borden v. United States, 141 S. Ct. 1817, 1822 (2021) (plurality opinion). The categorical approach asks us to determine “whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” Moncrieffe, 569 U.S. at 190 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185–87 (2007)). To do so, we “compare the elements of the crime of conviction with the elements of the ‘generic’ version of the listed offense—i.e., the offense as commonly understood.” Mathis v. United States, 579 U.S. 500, 503 (2016). “[I]f the statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an [aggravated felony], even if the defendant actually committed the offense in its generic form.” Descamps v. United States, 570 U.S. 254, 261 (2013). In the case before us, the BIA found that Alfred had been convicted of a generic theft offense under 8 U.S.C. § 1101(a)(43)(G). Therefore, under the categorical approach we must determine whether the Washington robbery statute under which Alfred was convicted criminalizes conduct that falls outside the generic definition of theft. We answered this question in Alvarado-Pineda. There, we held that “[a] comparison of the elements of the [Washington] statute to the elements of generic theft makes clear that the full range of conduct criminalized by Washington second-degree robbery falls within the meaning of generic theft.” Alvarado-Pineda, 774 F.3d at 1203 14 ALFRED V. GARLAND (internal quotation marks omitted). We “conclude[d] that a conviction for Washington second-degree robbery, where accompanied by a sentence of at least one year, qualifies as an ‘aggravated felony’ under 8 U.S.C. § 1101(a)(43)(G).” Id. Neither Alfred nor the government has questioned the correctness of that decision. Rather, following our decision in Valdivia-Flores, the parties disagree over whether and how Washington’s accomplice liability statute affects Alfred’s robbery conviction. We thus turn to those questions. IV. ACCOMPLICE LIABILITY A. Whether Considering Accomplice Liability Is Necessary 1. Analysis In Valdivia-Flores, we applied the categorical approach to Washington’s aiding and abetting statute before looking at the statute of conviction. 876 F.3d at 1207. The government argues that doing so was incorrect. In taking up the question of accomplice liability in Valdivia-Flores, we relied on Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007). In Duenas-Alvarez, the Supreme Court reviewed our application of the categorical approach to Cal. Veh. Code § 10851, which criminalizes vehicle theft. 549 U.S. at 187. That statute punishes not only “[a]ny person who drives or takes a vehicle not his or her own,” but also “any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing.” Cal. Veh. Code § 10851(a) (emphasis added). We had held that the statute’s reference to accomplice liability made it overbroad, reasoning that aiding and abetting theft does not necessarily require a defendant to commit theft himself. Penuliar v. Ashcroft, 395 F.3d 1037, 1044–45 (9th Cir. 2005), rev’d by Duenas-Alvarez, 549 U.S. 183. ALFRED V. GARLAND 15 The Supreme Court disagreed. First, it observed that “all States and the Federal Government” had “expressly abrogated the distinction” between those “who actually committed the crime in question” and aiders and abettors. Duenas-Alvarez, 549 U.S. at 189–90 (internal quotation marks omitted). Thus, the Court concluded that generic theft encompasses the aiding and abetting of theft. Id. Next, the Court addressed whether California’s accomplice liability scheme was “special,” such that it would allow California to penalize “crime that falls outside the generic definition of ‘theft.’” Id. at 190–94. The Court found no such distinction. Id. at 194. Duenas-Alvarez left open the question of whether accomplice liability should be considered when a separate statute integrates accomplice liability into the statute of conviction. Such is the case here. Unlike the vehicle code at issue in Duenas-Alvarez, Washington’s robbery statute does not expressly refer to aiding and abetting. See Wash. Rev. Code § 9A.56.190. Instead, a separate statute, Wash. Rev. Code § 9A.08.020(3), incorporates accomplice liability into all Washington crimes. We hold that this is a distinction without a difference. The categorical approach is “[r]ooted in Congress’ specification of conviction . . . as the trigger for immigration consequences.” Mellouli, 575 U.S. at 806. Though the statute of conviction is inextricably tied to the defendant’s conviction, nothing confines the categorical analysis to a single statute. On the contrary, the Supreme Court has looked to statutes other than the statute of conviction to understand what a conviction may entail. See, e.g., Mathis, 579 U.S. at 507; Taylor v. United States, 495 U.S. 575, 591– 92 (1990). Moreover, in defining the elements of a conviction, the Court often looks beyond the statute of 16 ALFRED V. GARLAND conviction to see how state courts have applied the statute. See Mathis, 579 U.S. at 507; Johnson v. United States, 559 U.S. 133, 138 (2010); Duenas-Alvarez, 549 U.S. at 190–94. Although the statute of conviction is the center of our analysis, we cannot blind ourselves to sources that contribute to its meaning. We discern no relevant difference between (1) a statute that defines a crime and expressly punishes aiding and abetting and (2) a statute that defines a crime and is subject to another statute that expressly punishes aiding and abetting all crimes, including the particular crime in question. A closer look at Washington law underscores why consideration of accomplice liability is important here. Washington, like the United States and all other states, has eliminated the distinction between principals and accomplices. By statute, in Washington, “[a] person is guilty of a crime if it is committed by the conduct of another person for which he or she is legally accountable.” Wash. Rev. Code § 9A.08.020(1). Washington defines legal accountability broadly, encompassing all who are complicit in the commission of the crime. See Wash. Rev. Code § 9A.08.020(2)–(3); see also State v. Silva-Baltazar, 886 P.2d 138, 143 (Wash. 1994) (“The complicity rule in Washington is that any person who participates in the commission of the crime is guilty of the crime and is charged as a principal.”). Accordingly, Washington courts have declared that “[t]here is no separate crime of being an accomplice; [instead] accomplice liability is principal liability.” State v. Handley, 796 P.2d 1266, 1276 (Wash. 1990) (quoting State v. Toomey, 690 P.2d 1175, 1181 (Wash. Ct. App. 1984)). Washington’s consolidation of accomplice and principal liability applies in all stages of prosecution. An information ALFRED V. GARLAND 17 need not “expressly charge aiding or abetting or refer to other persons” for a defendant to be found guilty as an accomplice. State v. Rodriguez, 898 P.2d 871, 873 (Wash. Ct. App. 1995); see also State v. Lynch, 970 P.2d 769, 772 (Wash. Ct. App. 1999) (“[A]n information that charges an accused as a principal adequately apprises him of his potential liability as an accomplice.”). Jurors may find a defendant guilty of a crime without agreeing whether the defendant acted as an accomplice or a principal. State v. Hoffman, 804 P.2d 577, 605 (Wash. 1991) (“[I]t is not necessary that jurors be unanimous as to the manner of an accomplice’s and principal’s participation as long as all agree that they did participate in the crime.”). And, “a defendant may be found guilty as a principal or as an accessory even though . . . the principal actor has not been tried or has been tried and acquitted.” State v. Wilder, 608 P.2d 270, 274 (Wash. Ct. App. 1980) (internal quotation marks and citations omitted); see also State v. Carothers, 525 P.2d 731, 734 (Wash. 1974) (“[A] verdict may be sustained upon evidence that the defendant participated in the commission of the crime charged, as an aider or abetter, even though he was not expressly accused of aiding and abetting and even though he was the only person charged in the information.”), abrogated on other grounds by State v. Harris, 685 P.2d 584, 587 (Wash. 1984). The upshot is that under Washington law it is impossible to determine whether an individual defendant has been convicted as a principal or an accomplice—or even whether a defendant acted alone, in concert, or with the aid of another—without looking to the facts underlying the conviction. Yet the categorical approach forbids us from 18 ALFRED V. GARLAND doing so. See Descamps, 570 U.S. at 261.3 Because a conviction under Wash. Rev. Code § 9A.56.190 does not necessarily establish that Alfred acted as a principal, we must consider the possibility he acted as an accomplice. We therefore conclude that we must consider Washington accomplice liability in our categorical analysis of Washington robbery. See Bourtzakis v. U.S. Att’y Gen., 940 F.3d 616, 621–22 (11th Cir. 2019) (arriving at the same conclusion). 2. Response to the Concurring Opinion Our dissenting colleagues agree with us on this point. Dissenting Op. at 87–88. Our concurring colleagues, 4 however, disagree with this conclusion. Although the concurrence believes that Washington aiding and abetting law is too different from federal generic aiding and abetting to be a categorical match, see Concurring Op. at 70–85, it nevertheless concludes that our categorical analysis should not address accomplice liability at all, id. at 69. According to the concurrence, this is because “the issue of aiding and abetting liability is not subsumed into one of the constituent elements of the underlying predicate offense,” but rather is “a theory of liability” that does not affect what a jury must find to convict a defendant. Id. at 59.

To set the majority’s errors in context, I begin with some important background concerning the scope of aiding and abetting liability under § 2. One of the central problems of aiding and abetting law is how to define the line between genuinely culpable assistance in the commission of a particular offense and more peripheral or attenuated conduct that might be said merely to indirectly facilitate an offense. This concern is reflected in the many hypotheticals mentioned on this subject in the internal debates of the American Law Institute (“ALI”) that preceded its adoption of the Model Penal Code. Would aiding and abetting liability extend, for example, to a “utility [that] provides telephone or telegraph services, knowing it is used for bookmaking” or to a “vendor [who] sells with knowledge that the subject of the sale will be used in the commission of a crime”? As reflected in the ALI’s discussions, there are at least two ways to address this crucial line-drawing problem. One approach, which was ultimately

74 ALFRED V. GARLAND adopted in the Model Penal Code, is to cabin aiding and abetting liability by requiring proof that the defendant acted with a highly culpable mental state. Thus, that Code allows one who “aids” in the commission of an offense to be liable as a principal only if he or she does so “with the purpose of promoting or facilitating the commission of the offense.” See MODEL PENAL CODE § 2.06(3)(a)(ii) (ALI 1985) (emphasis added). A second approach, which was reflected in an earlier draft of the Code, combined a less demanding mental state of knowledge with more “rigorously drafted” “conduct requirements.” See id. cmt. 6(c) (emphasis added). Under this approach, it would suffice to show that the aider and abettor “knowingly facilitated” the commission of a crime, but the requisite facilitation had to be “substantial” or to have involved “provid[ing] the means or opportunity for the commission of the crime.” Id. (emphasis added). The federal aiding and abetting statute, 18 U.S.C. § 2, has long been construed as following the first approach— that is, it combines a demanding mental state requirement with a more broadly defined facilitation requirement. As the Supreme Court explained in Rosemond, the aider and abettor must be shown to have “intend[ed] to facilitate [the] offense’s commission” in the sense that it is “‘something that he wishes to bring about.’” 572 U.S. at 76–77 (quoting Nye & Nissen v. United States, 336 U.S. 613, 619 (1949) (in turn quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938) (L. Hand, J.))). Moreover, it is not sufficient that the defendant intended “to advance some different or lesser offense”; “[i]nstead, the intent must go to the specific and entire crime charged.” Id. at 76 (emphasis added). But this demanding mental state requirement is paired with a fairly expansive “affirmative-act requirement.” Id. at 74. To establish the requisite facilitation of the offense, the

ALFRED V. GARLAND 75

Government only needs to show that the defendant’s actions “facilitated one component” of the offense and the “importance of the aid rendered” is not “relevant.” Id. at 74– 75. Indeed, the Court explained, “a person’s involvement in the crime could be not merely partial but minimal too.” Id. at 73. Given the “minimal” nature of the affirmative-act requirement under federal aiding and abetting law, the demanding scienter requirement plays an “important” role in ensuring that the Government is not able to “sweep within the drag-net of conspiracy [and abetting] all those who have been associated in any degree whatever with the main offenders.” United States v. Falcone, 109 F.2d 579, 581 (2d Cir. 1940) (L. Hand, J.).

The majority’s decision today, however, wrongly weakens § 2’s demanding mental state requirement in two key respects. a First, the majority erroneously contends that, under Rosemond’s description of § 2 aiding and abetting liability, intent and knowledge are “largely synonymous,” and that, as a result, there is “no significant daylight” between Washington’s knowledge standard for aiding and abetting liability and § 2’s intent standard as construed in Rosemond. See Opin. at 31, 39; see also Opin. at 32–34, 39. 12 The

12 The majority confusingly refers to the causing-a-violation theory of principal liability contained in § 2(b), see Opin. at 32, whereas Rosemond construed and applied the more traditional aiding and abetting liability embodied in § 2(a). See Rosemond, 572 U.S. at 68; see also supra at 68–69 & n.11. The majority’s equating of knowledge and

76 ALFRED V. GARLAND majority claims that its across-the-board equivalence between knowledge and intent in the context of aiding and abetting follows from Rosemond’s holding that “a person who actively participates in a criminal scheme knowing its extent and character intends that scheme’s commission.” 572 U.S. at 77 (emphasis added). The majority’s reasoning fails, because it ignores the load-bearing significance of the above-italicized language from Rosemond. As I have explained, see supra at 74–75, Rosemond unambiguously endorses “Judge Learned Hand’s” “canonical formulation of th[e] needed state of mind” for criminal aiding and abetting liability, under which it must be shown that the defendant had the intent to “bring about” the crime and “by his action to make it succeed.” Id. at 76 (citation omitted). However, in surveying the relevant caselaw, the Court observed that in cases involving a defendant who “actively participates in a criminal adventure,” the defendant’s “full knowledge of the circumstances constituting the charged offense” will suffice to “satisf[y]” the “intent requirement.” Id. at 77 (emphasis added). That makes sense, because if the defendant is personally and actively involved in the actual carrying out of the crime with full and “advance” knowledge of what is contemplated, that defendant unquestionably intends for that crime to be accomplished. Id. at 78. Rosemond thus observed that, in this subset of aiding and abetting cases involving active participation in the actual criminal conduct,

purpose would be even harder to square with § 2(b), because we have held that § 2(b) requires proof that the defendant “ha[d] the specific intent of bringing about the forbidden act.” United States v. Markee, 425 F.2d 1043, 1046 (9th Cir. 1970) (citation and internal quotation marks omitted).

ALFRED V. GARLAND 77

the knowledge and intent standards amount to the same thing: “for purposes of aiding and abetting law, a person who actively participates in a criminal scheme knowing its extent and character intends that scheme’s commission.” Id. at 77 (emphasis added). But the Court immediately added a footnote cautioning that this conclusion rested dispositively on the premise that the defendant’s affirmative act of assistance extended beyond the minimal conduct that is ordinarily sufficient for aiding and abetting purposes and instead involved active participation in the crime:

We did not deal in these cases, nor do we here, with defendants who incidentally facilitate a criminal venture rather than actively participate in it. A hypothetical case is the owner of a gun store who sells a firearm to a criminal, knowing but not caring how the gun will be used. We express no view about what sort of facts, if any, would suffice to show that such a third party has the intent necessary to be convicted of aiding and abetting.

Id. at 77 n.8. Rosemond thus equates knowledge and intent for purposes of aiding and abetting law only in cases involving active participation in the crime. The majority is therefore wrong in contending that Rosemond equates them across the board. 13

13 The Eleventh Circuit committed the same error in similarly—and wrongly—concluding that Rosemond equates knowledge and intent

78 ALFRED V. GARLAND In addition to finding no support in Rosemond, the majority’s wholesale collapsing of knowledge and intent for aiding and abetting purposes is plainly incorrect. The majority’s premise that knowledge and intent are equivalent for aiding and abetting purposes would have come as a surprise to the drafters of the Model Penal Code, who debated over the critical differences between those standards in aiding and abetting law. As explained earlier, those drafters explicitly recognized that, if knowledge were to be adopted as the standard rather than intent, “the conduct requirements” would have to be “more rigorously drafted” in order to avoid giving a novel and unwarranted sweep to aiding and abetting principles. See MODEL PENAL CODE § 2.06, cmt. 6(c) (emphasis added). That recognition coheres with Rosemond’s observation that, in cases of active participation in the crime (which is a situation in which the “conduct requirement[]” has been more “rigorously” articulated), there is no practical difference between knowledge and intent. But the same cannot be said for cases relying on the full breadth of the conduct requirement under federal law, under which “a person’s involvement in the crime could be not merely partial but minimal too.” Rosemond, 572 U.S. at 73. In Falcone, Judge Learned Hand similarly recognized the inappropriateness of combining a less demanding mental state of knowledge with a broad understanding of what conduct counts as aiding and abetting. Surveying the circuit split that had developed over the knowledge-intent issue in cases involving criminal prosecutions against persons who supplied materials to illegal distilleries, Judge Hand

across the board for purposes of aiding and abetting liability. Bourtzakis v. United States Att’y Gen., 940 F.3d 616, 622–25 (11th Cir. 2019).

ALFRED V. GARLAND 79 explained as follows why the Second Circuit had come down on the side of requiring intent:

[I]n prosecutions for conspiracy or abetting, [the defendant’s] attitude towards the forbidden undertaking must be more positive. It is not enough that he does not forego a normally lawful activity, of the fruits of which he knows that others will make an unlawful use; he must in some sense promote their venture himself, make it his own, have a stake in its outcome. The distinction is especially important today when so many prosecutors seek to sweep within the drag-net of conspiracy all those who have been associated in any degree whatever with the main offenders. That there are opportunities of great oppression in such a doctrine is very plain, and it is only by circumscribing the scope of such all comprehensive indictments that they can be avoided. We may agree that morally the defendants at bar should have refused to sell to illicit distillers; but, both morally and legally, to do so was toto coelo different from joining with them in running the stills.

109 F.2d at 581 (emphasis added). The majority asserts that its across-the-board equating of aiding and abetting liability ultimately makes no practical difference here, because Washington law supposedly pairs its lower knowledge requirement for aiding and abetting with an active-participation conduct requirement. See Opin.

80 ALFRED V. GARLAND at 45–46. That proposition seems doubtful as a matter of Washington law, 14 but more importantly, it does nothing to assuage the concerns raised by the majority’s broader equating of knowledge and intent in the context of aiding and abetting. As noted earlier, the majority’s discussion of generic aiding and abetting entirely ignores the conduct requirement of aiding and abetting, but it nonetheless flatly says—based in part on Rosemond—that knowledge and intent are “largely synonymous.” See Opin. at 31. And in footnote 10 of its opinion, the majority makes clear that the “blurry” line between “incidental facilitation and active participation” makes no difference to its conclusion. See Opin. at 46 n.10. For the reasons I have explained, Rosemond does not support the majority’s across-the-board equating of intent and knowledge in the context of aiding and abetting.

14 The majority’s construction of Washington law is hard to square with the fact that the Washington aiding and abetting statute adopts a knowledge requirement across the board, but without any corresponding language limiting the assistive conduct to cases of active participation. Indeed, Washington otherwise copied the relevant Model Penal Code language about assistive conduct and simply swapped knowledge rather than intent as the across-the-board mental state standard. (Washington, however, did not adopt the Model Penal Code’s option for relying on omitting to perform a duty to prevent an offense. Compare MODEL PENAL CODE § 2.06(3)(a)(iii) with WASH. REV. CODE § 9A.08.020(3)(a).) The resulting facial disparity between Washington law and Rosemond’s description of aiding and abetting liability is clear. See Lopez-Aguilar v. Barr, 948 F.3d 1143, 1147 (9th Cir. 2020) (“[T]here is not a categorical match if a state statute expressly defines a crime more broadly than the generic offense.”). ALFRED V. GARLAND 81 b Second, the majority wrongly limits a critical aspect of Rosemond’s description of aiding and abetting liability under § 2. Although Washington law requires that the defendant act “with knowledge that he or she was promoting or facilitating the crime for which that individual was eventually charged,” State v. Cronin, 14 P.3d 752, 758 (Wash. 2000) (emphasis in original), it does not require that the defendant’s knowledge extend to the “entire crime charged,” Rosemond, 572 U.S. at 76 (emphasis added). Thus, under Washington law, a defendant who knowingly abets a robbery may be convicted of armed robbery, even if he or she was unaware that the robber would be armed. See State v. Davis, 682 P.2d 883, 884–85 (Wash. 1984). By contrast, in Rosemond, the Court held that, under § 2, the defendant could not be convicted of aiding and abetting the use of a gun during a drug trafficking crime in violation of 18 U.S.C. § 924(c) unless it was shown that he “intended the commission” of “an armed drug sale.” 572 U.S. at 78 (emphasis added). The conflict between Davis and Rosemond on this point is so patent that the majority was only able to eliminate it by dramatically limiting the scope of Rosemond’s holding. According to the majority, Rosemond’s requirement of advance knowledge of the entire crime (such as the fact that it was to be an armed offense) applies only to a narrow class of “combination” crimes that are closely analogous to § 924(c). See Opin. at 40–42. Section 924(c) qualifies as such a “combination” crime, in the majority’s view, because it “is a ‘freestanding offense’ that requires proof of two distinct acts,” whereas, “[i]n contrast, first-degree armed robbery is an enhanced version of a base offense—simple 82 ALFRED V. GARLAND robbery.” See Opin. at 41. Because Rosemond’s “entire crime” rule does not apply to the mine run of cases, the majority reasons, there is no disparity between Washington and federal aiding and abetting law on this point. All of this is wrong. As an initial matter, the majority ignores the fact that, even before Rosemond, we have long recognized and applied the same rule that, “[t]o be convicted as an aider and abettor, the defendant must have knowingly and intentionally aided and abetted the principals in each essential element of the crime.” United States v. Dinkane, 17 F.3d 1192, 1196 (9th Cir. 1994) (emphasis added); see also United States v. Short, 493 F.2d 1170, 1172 (9th Cir. 1974) (explaining that this rule follows from general common law principles). In Dinkane, we applied this same entire-crime-charged rule (later endorsed in Rosemond) to hold that, “[i]n order to convict a defendant for armed bank robbery under an aiding and abetting theory,” the government must “show beyond a reasonable doubt,” inter alia, “that the defendant knew that the principal had and intended to use a dangerous weapon during the robbery.” 17 F.3d at 1195 (emphasis added). That, of course, is the exact opposite of Washington aiding and abetting law under Davis. The majority’s effort to limit Rosemond’s “entire crime charged” rule to “combination crimes” is thus directly contrary to Dinkane. 15 15 The majority’s only response is to assert that that “Dinkane does not define generic law for purposes of the categorical analysis.” See Opin. at 47 n.11. But as I have just explained, Dinkane’s rule was derived from general common law principles, just as Rosemond’s was. And Dinkane gives the lie to the majority’s assertion that Rosemond’s application of those general principles was somehow “novel.” See Opin. at 42. ALFRED V. GARLAND 83 Moreover, the majority’s posited distinction between a “combination crime” and an “enhanced version of a base offense” is illusory and ultimately incoherent. Section 924(c) makes it a criminal offense, inter alia, to use or carry a firearm “during and in relation to any crime of violence or drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A). As a result, all of the elements of the predicate crime of violence or drug trafficking crime must be proved, together with the additional element that a firearm was used “during and in relation to that predicate offense.” Id.; see also United States v. Mendoza, 25 F.4th 730, 741–42 (9th Cir. 2022). In that respect, a § 924(c) offense that is based on using a gun during a bank robbery is analytically indistinguishable from an armed bank robbery charge: both offenses require proof of all of the elements of the predicate/base offense of bank robbery plus an additional respective element relating to the use of a firearm. See 18 U.S.C. §§ 924(c)(1)(A), 2113(a), (d). In Blockburger terms, a bank robbery offense is every bit as much of a lesser-included offense of a bank-robbery- based § 924(c) charge as it is of an armed bank robbery charge. See Blockburger v. United States, 284 U.S. 299, 304 (1932) (holding that the test for whether two offenses are distinct for double jeopardy purposes is “whether each provision requires proof of a fact which the other does not”). The only difference is that Congress has explicitly allowed a § 924(c) count to be separately charged and punished in addition to the predicate offense. See 18 U.S.C. § 924(c)(1)(D)(ii); see also United States v. Davis, 306 F.3d 398, 417–18 (6th Cir. 2002). Given that, in terms of the constituent elements of the offenses, a “combination crime” and an “enhanced version of a base offense” have exactly the same relationship to the underlying predicate/base offense, there is no principled 84 ALFRED V. GARLAND basis for saying that Rosemond’s “entire crime” rule applies to one but not the other. 572 U.S. at 76. Moreover, nothing in Rosemond suggests that the Court was articulating a special mental state rule that applies, as the majority would have it, only in the context of a peculiar subset of “combination crimes.” On the contrary, in holding that the intent required for aiding and abetting “must go to the specific and entire crime charged,” the Rosemond Court described that holding as a “general rule” that was based on longstanding common law principles. See id. at 76 & n.7. Indeed, Rosemond cited with approval two cases that (like Dinkane) held that, as the Court put it, “the unarmed driver of a getaway car had the requisite intent to aid and abet armed bank robbery if he ‘knew’ that his confederates would use weapons in carrying out the crime.” Id. at 77 (emphasis added) (citing United States v. Akiti, 701 F.3d 883, 887 (8th Cir. 2012); United States v. Easter, 66 F.3d 1018, 1024 (9th Cir. 1995)). 16 16 Moreover, although Rosemond does refer to a § 924(c) charge as a “combination crime,” it made that observation only in discussing the defendant’s arguments concerning the affirmative-act component of aiding and abetting liability and not the mental state component. See 572 U.S. at 75. Rosemond had argued that the use of a firearm “is § 924(c)’s most essential feature” and that, as a result, he could not be convicted of aiding and abetting a § 924(c) offense unless “the requisite act” of assistance . . . was directed at the use of the firearm.” Id. (emphasis added). The Court rejected this effort to make the use of a gun the only relevant offense conduct for the underlying § 924(c) charge. Because a § 924(c) violation is a “combination crime” about using guns during drug trafficking, the Court explained, it would be wrong to say that “§ 924(c) is somehow more about using guns than selling narcotics.” Id. And because the affirmative-act requirement of aiding and abetting is satisfied by even minimal assistance to “one component” of the offense, Rosemond could ALFRED V. GARLAND 85 * * * At best, the majority’s en banc misreading of Rosemond casts a serious cloud over the previously settled scope of federal aiding and abetting under § 2. At worst, it arguably overturns decades of settled law on that subject. I respectfully dissent from that aspect of the majority’s opinion. IV For the foregoing reasons, I concur in the majority’s judgment that the petition should be denied, but I dissent from essentially all of its reasoning. be found to have committed the requisite act by conduct “facilitating either the drug transaction or the firearm use (or of course both).” Id. at 74–75. Nothing about this reasoning even remotely supports the majority’s holding that the entire-crime mental state element of aiding and abetting does not apply to the enhanced version of a base offense. 86 ALFRED V. GARLAND CALLAHAN, Circuit Judge, with whom Bade, Circuit Judge, joins, concurring in the judgment: I vote to deny the petition. Because we need not consider aiding and abetting liability, I concur in Sections I and II of Judge Collins’ concurrence in part and dissent in part. However, because by the vote of a majority of the en banc panel aiding and abetting liability remains before us, I also concur in subsections B and C of Section IV and Section V of Judge Bybee’s opinion and agree that Washington’s aiding and abetting law is not overbroad. McKEOWN, Circuit Judge, with whom MURGUIA, Chief Judge, and S.R. THOMAS and VANDYKE, Circuit Judges, join, dissenting: In yet another case, we are called on to conduct what sounds like a simple analysis—“whether ‘[Washington’s] statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007)). But that proposition is easier stated than applied. Consequently, we have said that “perhaps no other area of the law has demanded more of our resources.” United States v. Aguila-Montes de Oca, 655 F.3d 915, 917 (9th Cir. 2011) (en banc) (opinion of Bybee, J.), abrogated on other grounds by Descamps v. United States, 570 U.S. 254 (2013). Because “[t]he categorical approach requires us to perform absurd legal gymnastics,” Lopez-Aguilar v. Barr, 948 F.3d 1143, 1149 (9th Cir. 2020) (Graber, J., concurring), it is no surprise that scholars have asked whether this is a ALFRED V. GARLAND 87 “categorical approach or categorical chaos.” 1 Other circuits have observed that the categorical approach “push[es] us into a catechism of inquiry that renders these approaches ludicrous.” United States v. Williams, 898 F.3d 323, 337 (3d Cir. 2018) (Roth, J., concurring). Because courts are required to parse numerous state statutes in applying immigration and criminal law, often leading to inconsistent conclusions, it is no wonder “the categorical approach has developed a reputation for crushing common sense.” United States v. Escalante, 933 F.3d 395, 406 (5th Cir. 2019). Notwithstanding such obvious frailties, the categorical approach forces us into the straitjacket of slicing and dicing the statutes, often producing “arbitrary and inequitable results.” Mathis v. United States, 579 U.S. 500, 521 (2016) (Kennedy, J., concurring). But since we must do so, it is only fair to adhere to state law as state law is written, not as we wish it to be, and to land on a generic definition that comports with the Model Penal Code, the majority of state statutes, and leading treatises. Because the majority takes a path that diverges from these principles, I respectfully dissent. I agree with the majority that, under the categorical approach, we must compare the state statute to the federal generic definition of the offense. I also agree that because Washington’s statutory scheme incorporates accomplice 1 Timothy M. Mulvaney, Note, Categorical Approach or Categorical Chaos? A Critical Analysis of the Inconsistencies in Determining Whether Felony DWI is a Crime of Violence for Purposes of Deportation Under 18 U.S.C. § 16, 48 Vill. L. Rev. 697 (2003); see also Sheldon A. Evans, Punishing Criminals for Their Conduct: A Return to Reason for the Armed Career Criminal Act, 70 Okla. L. Rev. 623, 645 (2018) (describing the categorical approach as “contrived” and “not based in reality”). 88 ALFRED V. GARLAND liability into all crimes, we must consider accomplice liability in our categorical analysis of Washington second- degree robbery. But I part ways with the majority in two significant respects. First, we differ on the generic definition of accomplice liability. A close read of the relevant sources reveals that generic accomplice liability requires a mental state of purpose, which is different than knowledge. Second, we disagree on whether Washington’s second-degree robbery statute is a categorical match with the generic theft offense. Washington accomplice liability requires a mental state of knowledge, which is lower than purpose. Because the Washington law is therefore a categorical mismatch with generic theft, I would grant Alfred’s petition for review. The majority recites the relevant considerations for discerning the generic definition of accomplice liability before concluding that it is “difficult to discern a clear generic standard.” Yet, the majority continues with apparent confidence, because the purpose mental state is interchangeable with the knowledge mental state, “advance knowledge of the crime is sufficient to support a conviction for generic accomplice liability.” The legal landscape, however, is far less chaotic than the majority suggests, and the majority’s cited authorities do not support this conclusion. Indeed, generic accomplice liability requires a mental state of purpose, not knowledge. To begin, the Model Penal Code expressly distinguishes purpose and knowledge. The Model Penal Code defines four culpable mental states: (1) purposely, (2) knowingly, (3) recklessly, and (4) negligently. Model Penal Code § 2.02(2) (Am. L. Inst. 2021). Specifically: (a) Purposely. A person acts purposely with respect to a material element of an offense when: ALFRED V. GARLAND 89 (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. (b) Knowingly. A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. Id. “[P]urposely” is synonymous with “intentionally,” Model Penal Code § 1.13(12) (Am. L. Inst. 2021), and “corresponds loosely with the common-law concept of specific intent,” United States v. Bailey, 444 U.S. 394, 405 (1980). In contrast, “knowledge corresponds loosely with the concept of general intent.” Id. (internal quotation marks omitted). Having differentiated between purpose and knowledge, the Model Penal Code states that a person is liable as an accomplice if: (a) with the purpose of promoting or facilitating the commission of the offense, he 90 ALFRED V. GARLAND (i) solicits such other person to commit it, or (ii) aids or agrees or attempts to aid such other person in planning or committing it, or (iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or (b) his conduct is expressly declared by law to establish his complicity. Model Penal Code § 2.06(3) (Am. L. Inst. 2021). In general, “[t]he generic definition of an offense roughly corresponds to the definitions of the offense in a majority of the States’ criminal codes.” United States v. Garcia-Jimenez, 807 F.3d 1079, 1084 (9th Cir. 2015) (internal quotation marks and citation omitted). As the majority acknowledges, twenty-six state criminal codes comport with the Model Penal Code and require that an accomplice act with a mental state of purpose or intent. See 2 Wayne R. LaFave, Substantive Criminal Law § 13.2(b), at 466–67 nn.70, 72 (3d ed. 2018); see also, e.g., Ga. Code Ann. § 16-2-20(b); Ariz. Rev. Stat. § 13-301; Mont. Code Ann. § 45-2-302(3). The federal accomplice liability statute similarly requires a mental state of purpose. See 18 U.S.C. § 2 (providing that “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission” and “[w]hoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal”); United States v. Hernandez-Orellana, 539 F.3d 994, 1006 (9th Cir. 2008) (explaining that federal aiding and abetting requires “that the accused had the specific intent to facilitate the commission ALFRED V. GARLAND 91 of a crime by another”). The majority admits as much by noting that “18 U.S.C. § 2(a) adequately reflects federal generic accomplice liability law.” Here, the generic accomplice liability standard is clear: intent is required. This conclusion is amplified by criminal- law treatises, which instruct that accomplice liability generally requires a higher mental state than knowledge. LaFave explains that, in general, “accomplice liability exists when the accomplice intentionally encourages or assists, in the sense that his purpose is to encourage or assist another in the commission of a crime as to which the accomplice has the requisite mental state.” LaFave, supra, § 13.2(b), at 467. Further, although some states like Washington allow for accomplice liability based on “encouragement or assistance with knowledge that it will promote or facilitate a crime,” accomplice “liability has seldom been imposed on this basis.” Id. at 468–69; see also Jens David Ohlin, Wharton’s Criminal Law § 10:9 (16th ed. 2022) (explaining that federal courts, the Model Penal Code, and some states follow the “purpose standard” rather than “the more relaxed knowledge standard”). Instead of relying on the consensus of twenty-six states, the majority leaps to conclude that purpose and knowledge are equivalent. In doing so, the majority focuses on five states—Wisconsin, Missouri, Idaho, Michigan, and Illinois—that ostensibly blur the line between purpose and knowledge. Even if five states’ policies were a sufficient rebuttal to majority consensus, these state statutes do not support the majority’s conclusion with the force the majority asserts. For example, Wisconsin, Missouri, and Idaho do not treat purpose and knowledge as interchangeable. Wisconsin law provides that intent is a required element of accomplice liability and can be proven with a combination of knowledge 92 ALFRED V. GARLAND and either an overt act of assistance or an indication of willingness to assist. See State v. Hibbard, No. 2020AP1157-CR, 2022 WL 4363364, at *3 (Wis. Ct. App. Sept. 21, 2022); Wis. IJ-Criminal, No. 400. Missouri and Idaho, on the other hand, stipulate that either intent or knowledge can satisfy the mental state requirement. See, e.g., State v. Barker, 442 S.W.3d 165, 169 (Mo. Ct. App. 2014); State v. Gonzalez, 12 P.3d 382, 384 (Idaho Ct. App. 2000). And Michigan and Illinois have identified knowledge and intent as two separate factors that may support an inference of accomplice liability. See, e.g., People v. Robinson, 715 N.W.2d 44, 48 (Mich. 2006); People v. Batchelor, 665 N.E.2d 777, 780–81 (Ill. 1996). Allowing for multiple options of proving an element does not make those options equivalent. The majority also cites Rosemond v. United States, 572 U.S. 65 (2014), as evidence of the blurred line between purpose and knowledge. The Supreme Court’s analysis in Rosemond, however, reveals that the purpose mental state in the federal aiding and abetting statute, 18 U.S.C. § 2, is higher than Washington’s knowledge requirement. The Court in Rosemond, considering the conduct necessary to demonstrate that a person intended to facilitate the commission of a crime, held that “an aiding and abetting conviction requires not just an act facilitating one or another element, but also a state of mind extending to the entire crime.” 572 U.S. at 75–76 (emphasis added). The Court clarified that its holding was “grounded in the distinctive intent standard for aiding and abetting.” Id. at 81 n.10. Accordingly, as the majority acknowledges, a federal conviction for aiding and abetting requires the defendant to have had “full knowledge of the circumstances constituting the charged offense.” See id. at 77. ALFRED V. GARLAND 93 An accomplice in Washington need only participate in a crime with general knowledge of the crime being committed, not specific knowledge of “every element” of the crime. State v. Roberts, 14 P.3d 713, 736 (Wash. 2000). Under Rosemond, for an accomplice to have intended “a [criminal] scheme’s commission, he” must have participated in the scheme while understanding its “extent and character.” 572 U.S. at 77. Rosemond did not confirm the interchangeability of intent and knowledge. Instead, Rosemond clarified that advance knowledge is necessary, but not sufficient, to establish the purpose mental state. The majority doubly errs by forcing its view of what Washington law should be and by collapsing the purpose and knowing mental states, an error highlighted by Washington law’s express differentiation between those mental states. Washington’s criminal code provides that “[a] person acts with intent or intentionally when he or she acts with the objective or purpose to accomplish a result which constitutes a crime.” Wash. Rev. Code. § 9A.08.010(1)(a). A person acts with knowledge, however, when: (i) He or she is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or (ii) He or she has information which would lead a reasonable person in the same situation to believe that facts exist which facts are described by a statute defining an offense. Id. § 9A.08.010(1)(b). For accomplice liability, Washington has required general knowledge, not purpose or intent. In State v. Roberts, the defendants were charged with aggravated murder in the first degree, or, alternatively, 94 ALFRED V. GARLAND felony murder in the first degree. 14 P.3d at 721. The trial court provided a jury instruction at the guilt phase regarding accomplice liability. Id. at 730. The Washington Supreme Court explained that first-degree murder requires a mens rea of intent, while accomplice liability “requires only a mens rea of knowledge.” Id. at 731. The court further stated that a conviction based on the accomplice liability statute requires only that an accomplice has general knowledge of the specific crime committed by the principal, not “specific knowledge of every element of the crime committed.” Id. at 736. Following Roberts, Washington has repeatedly articulated that knowledge of the principal’s crime is sufficient to support a conviction for accomplice liability. See, e.g., State v. Berube, 79 P.3d 1144, 1151 (Wash. 2003) (citing cases and noting that, “[f]or Berube’s conviction as an accomplice to stand, the evidence must support a finding that she . . . kn[ew] that her acts would either promote or facilitate the crime”); State v. Carter, 109 P.3d 823, 829 (Wash. 2005) (explaining that an erroneous jury instruction on accomplice liability was harmless when the jury’s conviction was clearly based on the defendant’s knowledge of the principal’s charged crimes). The Washington Supreme Court has also held that a defendant has “adequate knowledge” for accomplice liability when he “acts with knowledge that [his] conduct will promote the specific crime charged.” State v. Farnsworth, 374 P.3d 1152, 1159 (Wash. 2016) (citing State v. Cronin, 14 P.3d 752, 759 (Wash. 2000)). This principle was reinforced when the Washington Supreme Court recently upheld a conviction for second- degree assault on an accomplice liability theory where the defendant argued that she lacked knowledge that her ALFRED V. GARLAND 95 codefendants would assault the victim “with a deadly weapon.” State v. Dreewes, 432 P.3d 795, 799 (Wash. 2019). The court noted that the defendant knew generally of the plan to rob a home and kidnap someone there, even though she did not know that her co-defendant would assault the victim—who was not the person the co-defendant sought to kidnap—with a rifle. Id. at 802. The defendant’s “general knowledge” of the substantive crime sufficed for her conviction, and specific knowledge of all the elements of the crime was not necessary. Id. Further, in practice, an accomplice in Washington need not “have the intent” to commit a specific crime, “just knowledge that his actions were facilitating the crime.” State v. A.L.Y., No. 56645–8–I, 2006 WL 2723983, at *3 (Wash. Ct. App. Sept. 25, 2006) (per curiam). In State v. A.L.Y., the defendant argued that he could not be guilty of second-degree robbery, even as an accomplice, because he lacked intent to steal, which is “an essential non-statutory element of robbery in Washington.” Id. The Washington Court of Appeals clarified that an accomplice need not “share the same mental state as the principal,” and that A.L.Y.’s general “knowledge that his actions were facilitating” the robbery was sufficient to support his conviction. Id. (quoting Berube, 79 P.3d at 1151). Despite the clear instruction that Washington requires only knowledge for accomplice liability, the majority concludes that Washington’s second-degree robbery statute is a categorical match with a generic theft definition that requires an accomplice to act with the purpose to aid and abet in the commission of a crime. The majority, unwilling to accept what Washington law is, imputes its own view of what Washington law should be. 96 ALFRED V. GARLAND Beyond wrongly concluding that Washington’s statute is a categorical match with generic theft, the majority errs by collapsing the purpose and knowledge mental states. By the Model Penal Code’s own definitions, purpose and knowing are different standards. Compare Model Penal Code § 2.02(2)(a), with § 2.02(2)(b); see Bailey, 444 U.S. at 405. The majority of states follow this scheme, but a state’s decision to diverge from these definitions should not be a basis to elide those concepts when determining the generic offense, nor an excuse to rewrite clear state law. See Sarausad v. Porter, 503 F.3d 822, 831 (9th Cir. 2007) (Callahan, J., dissenting from denial of rehearing en banc) (“As a federal court, we should not expand our duties to rewrite state laws.”). My disagreement with the majority illustrates the confusion and frustration engendered by the categorical approach. As explained above, under the overwhelming weight of authority, there is an unambiguous definition of accomplice liability that requires a mental state of purpose or intent, not simply knowledge. But the majority sees it otherwise, declaring that the generic definition of accomplice liability is murky and then transforming that murkiness into an absolute definition that disfavors Alfred. I respectfully dissent and would grant Alfred’s petition. ALFRED V. GARLAND 97 VANDYKE, Circuit Judge, dissenting: While I would like to join Judge Bybee’s characteristically well-written decision, I agree with Judge Collins and my dissenting colleagues that the analysis therein incorrectly elides the distinction between the mental states of knowledge (or general intent) and purpose (or specific intent) to find a categorical match in this case. The distance between those mental states is too great a gulf to span. And while the approach taken by Judge Collins in his decision has a lot to commend it as an original matter, I also can’t join it entirely because I don’t believe his approach is ultimately reconcilable with what the Supreme Court actually did in Duenas-Alvarez. So I must dissent from our court’s result in this case. 1 I write separately from the other dissenters only to address more specifically why I am prevented from fully joining Judge Collins’s decision. Judge Collins characterizes as superfluous the Supreme Court’s analysis of a disputed issue it actually decided in Duenas-Alvarez: whether California’s doctrine of aiding and abetting was “special” and thus unlike the generic counterpart. 549 U.S. at 190–91. This was the main issue litigated by Duenas- 1 I’m not very happy with where I ended up in this case, and I might as well add my voice to the chorus of judges who have emphasized the whole categorical match approach is “dumb, dumb, dumb.” Orellana v. Barr, 967 F.3d 927, 940 (9th Cir. 2020) (Owens, J., concurring); see also Mathis v. United States, 579 U.S. 500, 536–44 (2016) (Alito, J., dissenting); United States v. Valdivia-Flores, 876 F.3d 1201, 1210–11 (2017) (O’Scannlain, J., specially concurring). In addition to all the freakshow oddities this misguided approach has wrought, you can now add this case, where Alfred loses, but our court isn’t really sure as to why. 98 ALFRED V. GARLAND Alvarez before the Supreme Court, but by characterizing it as a mere “alternative argument,” Judge Collins minimizes what was really the heart of that case. According to Judge Collins, “[n]othing in the Court’s holding or analysis on this point suggests that it was even undertaking—much less mandating—a categorical-match analysis between federal generic aiding and abetting principles and California aiding and abetting principles.” Respectfully, I don’t think that is a permissible reading of Duenas-Alvarez. If Judge Collins was correct in suggesting the Court thought categorical analysis of aiding and abetting was unnecessary, the Court could have resolved section III(A) of Duenas-Alvarez in one easy sentence: “Because aiding and abetting is not part of the categorical analysis inquiry, Duenas-Alvarez’s argument that California’s aiding and abetting law is different from its generic counterpart is irrelevant.” But that’s not what the Court did. The Court said that “[t]o succeed, Duenas-Alvarez must show something special about California’s version of the [aiding and abetting] doctrine—for example, that California in applying it criminalizes conduct that most other States would not consider ‘theft.’” Duenas-Alvarez, 549 U.S. at 191 (first emphasis added). “Duenas-Alvarez attempt[ed] to make just such a showing,” but the Supreme Court rejected it, not because it was irrelevant, but because Duenas-Alvarez failed in his attempt. Id. at 191–93. And the Court spent multiple pages explaining why. Id. at 190–93. If Judge Collins was correct that aiding and abetting is irrelevant to the categorical match analysis, then this whole discussion by the Court was an inexplicable extended frolic and detour. Judge Collins nonetheless argues that the Court did not necessarily require a categorical match analysis of aiding and abetting because it merely compared “the particulars of ALFRED V. GARLAND 99 California’s approach to aiding and abetting” to generic aiding and abetting. What Judge Collins artfully calls “the Supreme Court’s analysis of Duenas-Alverez’s alternative argument challenging the particulars of California’s approach to aiding and abetting” was, in fact, a categorical match analysis of aiding and abetting. But while the Court in Duenas-Alvarez clearly did a categorical match analysis of aiding and abetting, Judge Collins puts decisive weight on the fact that the Court never explicitly stated that the analysis it conducted was necessary. As he sees it, by doing a categorical analysis but not saying it needed to do what it did, “the Court did not reach th[e] broader issue” of whether what it did was necessary. Respectfully, I find that an odd way to read Duenas- Alvarez—the Supreme Court devoted the central part of its opinion spanning multiple pages to doing a categorical match analysis of aiding and abetting. And that’s presumably why Judge Collins’s interpretation of Duenas- Alvarez is so original. See, e.g., Bourtzakis v. U.S. Att’y Gen., 940 F.3d 616, 620–22 (11th Cir. 2019). Under that approach to reading Supreme Court precedents, if the Court wants lower courts to follow its precedents, I guess it must tell, not show. That is not an interpretive approach I think any lower court could apply consistently. Consider, for example, the applicability of the First Amendment in some particular context. Assume that the Supreme Court in cases in that context analyzed whether there had been a First Amendment violation by applying some well-established First Amendment test (say, strict scrutiny), and concluded in every case that, on the unique facts of each case, there was no violation. But the Court simply did the analysis; it never actually said it was required. Would we then feel free to 100 ALFRED V. GARLAND conclude the First Amendment was categorically inapplicable in that context, because (quoting Judge Collins) the Court had never expressly “sua sponte raise[d] the threshold question of whether any such [First Amendment analysis] was required”? No. I think we would safely assume that if the First Amendment was categorically inapplicable in that context, the Court would not have gone to all the trouble to perform a strict scrutiny analysis. Or at least we should assume so until the Court tells us differently. To conclude otherwise is to impose a “magic words” requirement on the Supreme Court that has no basis in common sense or practice. 2 Judge Collins’s characterization of Duenas-Alvarez’s aiding-and-abetting-mismatch argument as a mere “alternative argument” that didn’t merit much attention from the Supreme Court is inconsistent with that case’s procedural history. By the time the Supreme Court reviewed Duenas- Alvarez, that argument was the central controversy before to the Court. The Court originally granted certiorari in the case to consider and overrule our court’s prior decision in Penuliar v. Ashcroft, 395 F.3d 1037, 1044–46 (9th Cir. 2 To be fair to Judge Collins, his argument is not logically wrong. It is possible for a court to assume arguendo that a particular legal standard applies, and then conclude, after applying that assumed standard, that the party arguing for that standard would lose even if that standard did apply. Courts do that sometimes. But they usually signal in some way when that is what they are doing. I see no indicia in Duenas-Alvarez that the Supreme Court was assuming arguendo the applicability of the categorical match analysis. To the contrary, the Court seems to have deemed the applicability of the categorical analysis to aiding and abetting to be so obvious that it simply dove into the analysis without ever expressly saying it was required. Courts also do that frequently. To conclude otherwise, as Judge Collins does, is a novel reading of Duenas- Alvarez. ALFRED V. GARLAND 101 2005), which had misapplied the categorical approach to hold that because (i) California’s law of theft criminalized aiding and abetting, and (ii) California’s aiding and abetting, unlike the generic theft offense, didn’t involve taking or controlling property, that therefore California’s law swept more broadly than, and thus did not match, the federal theft offense. See Duenas-Alvarez, 549 U.S. at 188–89. The Court granted review in Duenas-Alvarez to correct the part of our court’s categorical match analysis that determined aiding and abetting a theft was not a crime that fell within the federal generic definition of theft. Id. But after the Supreme Court granted certiorari, Duenas-Alvarez did not even contest that point. See id. at 190 (“Duenas-Alvarez does not defend the Ninth Circuit’s position.”). Given that procedural posture, the Court’s uncontroversial reversal of Penuliar required little work: “The question before us is whether one who aids or abets a theft falls, like a principal, within the scope of th[e] generic definition. We conclude that he does.” Id. at 189. Indeed, the Court barely spent three paragraphs on the question. Id. at 189–90. Instead, the meat of the case before the Supreme Court was precisely the issue that Judge Collins downplays as a mere “alternative argument.” Seeing the writing on the wall from the Court’s grant of certiorari, Duenas-Alvarez conceded that the generic law “treats aiders and abettors during and before [a theft] the same way it treats principals.” Id. at 190. But he argued that he should still win because, acknowledging that categorical analysis applied to aiding and abetting, California’s doctrine was so dissimilar from the generic counterpart as to be “special.” Id. at 191. The Court took nine paragraphs and two detailed appendices to conclude that it was not “special.” 102 ALFRED V. GARLAND Again, if Judge Collins was correct that the Supreme Court really thought aiding and abetting liability was simply irrelevant to the categorical match analysis, why did the Court go to all the trouble to address Duenas-Alvarez’s argument on the merits at all? It would have been easy enough (indeed, much simpler than what it did) to just say: “It’s irrelevant.” Instead, the Court concluded that, “in our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language.” Id. at 193. Rather, “[i]t requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Id. These statements about how to apply the categorical match analysis are sandwiched in the middle of the Court’s comparison between California’s approach to aiding and abetting and the generic approach. Judge Collins has made a powerful argument for what the law maybe should be, and maybe the Supreme Court will adopt that argument in the future. But it’s too difficult for me to reconcile that with what the Court actually did in Duenas-Alvarez. I thus reluctantly dissent.