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 for an intentional (not reckless) murder. And intentional murder categorically qualifies as a crime of violence.