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Wednesday, July 19th, 2023

Second Circuit finds that VICAR murder may categorically qualify as a crime of violence

This week, in United States v. Davis, No. 21-1486-cr (2d Cir. July 18, 2023), the Circuit holds that murder in aid of racketeering (also known as “VICAR murder”), 18 U.S.C. § 1959(a)(1), may categorically qualify as a “crime of violence” for purposes of 18 U.S.C. §§ 924(c) and 924(j)(1).

In Davis, the defendant argued that VICAR murder is not categorically a crime of violence because it includes generic, second-degree murder, which can be committed recklessly. And offenses with a mens rea of recklessness do not categorically qualify as violent felonies. See Borden v. United States, 141 S. Ct. 1817, 1834 (2021).

The Circuit rejected this argument. The Circuit found that VICAR murder is divisible, meaning a court must apply the “modified categorical approach” to determine the specific elements of a defendant’s underlying murder offense. Here the defendant’s jury instructions established that he was charged with and convicted …

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Categories: crime of violence, murder, racketeering

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Categories: crime of violence, murder, racketeering

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Thursday, August 22nd, 2019

Federal Second-Degree Murder is Not a Crime of Violence …

In the Ninth Circuit, at least. This week in United States v. Begay, No. 14-10080, 2019 WL 3884261 (9th Cir. Aug. 19, 2019), the Ninth Circuit held that second-degree murder, in violation of 18 U.S.C. § 1111, is not a crime of violence for purposes of 18 U.S.C. § 924(c).

In Begay, the defendant, “[a]fter a few hours of drinking and smoking methamphetamine,” “shot [the victim] in the head with a handgun,” killing him. The defendant was convicted of second-degree murder and discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).

The Ninth Circuit vacated the § 924(c) conviction. The Circuit applied the categorical approach to determine whether second-degree murder qualifies as a crime of violence, looking to the elements of that offense rather than the specific facts of the case. (And after United States v. Davis, an offense must qualify …

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Categories: 924(c), crime of violence, murder

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Categories: 924(c), crime of violence, murder

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Wednesday, October 19th, 2016

Manslaughter is Not a “Crime of Violence”

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In a recent ruling, Judge Woods of the Southern District held first-degree manslaughter in violation of N.Y. Penal Law § 125.20(1) is not a “crime of violence” under the pre-August 1, 2016, Career Offender Guideline, U.S.S.G. § 4B1.2.  A person commits such manslaughter when, “[w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person.”

Judge Woods first held this offense does not qualify under the Guideline’s residual clause as that clause was “rendered void” by Johnson v. United States, 135 S. Ct. 2551 (2015).  The judge next held the offense does not qualify under the Guideline’s force clause because “one can be found guilty of manslaughter under the New York statute on the basis of an omission.” Specifically, “the failure to perform a legally imposed duty” permits conviction if the inaction leads to another’s death.  People …

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Categories: ACCA, career offender, crime of violence, manslaughter, murder

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Categories: ACCA, career offender, crime of violence, manslaughter, murder

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