Archive | 924(c)

Most courts (and the government) have for a while acknowledged that kidnapping is not a crime of violence given that it can be accomplished through deception and thus without physical force.  The Second Circuit has now acknowledged this too, holding in US v. Eldridge that NY kidnapping in aid of federal racketeering isn’t a 924(c) predicate: it can be committed using “deception to hold a victim in a place” and thus without “the use, attempted use, or threatened use of physical force.”

PS – The career offender guideline lists “kidnapping” as a COV but doesn’t define it, meaning the generic definition (how most jurisdictions define it) applies.  The DC Circuit surveyed the law and decided generic kidnapping requires “a criminal purpose beyond the mere intent to restrain the victim.”  US v. De Jesus Ventura, 565 F.3d 870, 876 (D.C. Cir. 2009).  Neither federal kidnapping nor NY kidnapping requires such heightened …

For one brief, beautiful moment, it seemed like nothing could ever be a crime of violence. But the pendulum is swinging back and now everything is becoming a crime of violence once again.

In United States v. Nikolla, 17-2206-cr (2d Cir. Feb. 19, 2020), the Second Circuit held that threatening violence in furtherance of an extortion plan, in violation of 18 U.S.C. § 1951(a), is categorically a “crime of violence” under the force (or elements) clause of 18 U.S.C. § 924(c).

In Nikolla, the defendant pled guilty to several charges, including a § 924(c) offense, pursuant to a written plea agreement. On appeal, he nonetheless challenged his § 924(c) conviction. In upholding this conviction, the Circuit found § 1951(a) divisible and noted that the defendant pled guilty to the provision which applies to a defendant who “commits or threatens physical violence to any person or property in furtherance” …