78 F.4th 870
6th Cir.2023Background
- Nicholson (national enforcer) and Sorrell (PMC member) participated in coordinated attacks on rival club members; Sorrell shot Leon McGee during an altercation and Nicholson was present.
- Indictment included Count Five: VICAR aiding-and-abetting assault with a dangerous weapon (18 U.S.C. §1959(a)(3) + §2); Count Six: VICAR conspiracy to assault (18 U.S.C. §1959(a)(6)); Count Seven: §924(c) (use/carry of firearm during a crime of violence).
- Jury was instructed that Count Seven could be predicated on either Count Five or Count Six, without a unanimity requirement as to which predicate; jury convicted on all counts.
- After Davis removed §924(c)’s residual clause, only the elements clause defines “crime of violence,” evaluated categorically. The government conceded the conspiracy predicate was invalid.
- Court held: VICAR conspiracy (Count Six) is not a crime of violence; VICAR aiding-and-abetting assault with a dangerous weapon (Count Five) is a crime of violence; the instructional error allowing the invalid predicate was harmless because the predicates were inextricably intertwined—§924(c) convictions affirmed.
Issues
| Issue | Petitioners' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Count Seven was predicated on a valid §924(c) "crime of violence" (i.e., do VICAR conspiracy or VICAR aiding-and-abetting assault qualify) | Both predicates fail to meet §924(c) elements clause; thus Count Seven invalid | Concedes conspiracy is invalid but argues aiding-and-abetting assault qualifies because it requires a completed assault with a dangerous weapon (force element) | VICAR conspiracy is not a crime of violence; VICAR aiding-and-abetting assault with a dangerous weapon is a crime of violence; Count Seven may rest on Count Five |
| Whether failure to require jury unanimity on which predicate supported §924(c) mandates vacatur (or is harmless) | General verdict could have rested solely on invalid conspiracy predicate; vacatur required | Error harmless under Brecht/Baugh because the conduct underlying both predicates arose from the same incident and is inextricably intertwined | Instructional error harmless; §924(c) convictions retained |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (invalidated §924(c) residual clause).
- United States v. Taylor, 142 S. Ct. 2015 (2022) (explained categorical inquiry for §924(c) and held attempt crime may not satisfy elements clause).
- United States v. Woods, 14 F.4th 544 (6th Cir. 2021) (elements clause excludes conspiracy charges post-Davis).
- Manners v. United States, 947 F.3d 377 (6th Cir. 2020) (assault with a dangerous weapon under §1959(a)(3) is a crime of violence).
- Rosemond v. United States, 572 U.S. 65 (2014) (aiding-and-abetting requires proof the principal committed the offense and an aider’s affirmative act and intent).
- Baugh v. United States, 64 F.4th 779 (6th Cir. 2023) (harmless-error framework for §2255 challenges to §924(c) convictions when verdict may rest on invalid predicate; inextricably intertwined test).
- Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless-error standard on collateral review: error reversible only if it had substantial and injurious effect).
- Wallace v. United States, 43 F.4th 595 (6th Cir. 2022) (Hobbs Act conspiracy cannot serve as a crime of violence under §924(c) elements clause).