61 F.4th 311
2d Cir.2023Background
- Darren Morris pleaded guilty (2014) to two § 924(c)(1)(A) counts: Count One — firearm possession/use during an attempted Hobbs Act robbery; Count Two — possession/use/discharge of a firearm during an assault in aid of racketeering (VICAR) where the victim died.
- District Court sentenced Morris to 360 months (60 months on Count One consecutive to 300 months on Count Two). Morris appealed, arguing neither count had a valid § 924(c) predicate "crime of violence."
- § 924(c)(3)(A) (the elements clause) defines a "crime of violence" as a felony with an element requiring the use, attempted use, or threatened use of physical force; the statute’s residual clause was invalidated by the Supreme Court in Davis.
- Parties agreed Count One’s predicate was attempted Hobbs Act robbery; under United States v. Taylor (2022) attempted Hobbs Act robbery no longer qualifies as a § 924(c) crime of violence.
- The parties agreed Count Two was predicated on VICAR assault (18 U.S.C. § 1959(a)(3)), but disputed which VICAR variant and which state statute it rested on; the Second Circuit applied the modified categorical approach, identified VICAR Assault (Deadly Weapon) premised on N.Y. Penal Law § 120.05(2) (and possibly § 120.10(1)), and held that predicate qualifies as a § 924(c) crime of violence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Does attempted Hobbs Act robbery qualify as a § 924(c) "crime of violence"? | Government agreed the predicate was attempted Hobbs Act robbery but acknowledged Taylor forecloses its status as a crime of violence. | Morris: vacate Count One because attempted Hobbs Act robbery is not a crime of violence. | Vacated Count One — Taylor bars attempted Hobbs Act robbery from qualifying under the elements clause. |
| 2) Does Morris’s VICAR assault predicate qualify as a § 924(c) "crime of violence"? | Government: VICAR assault (assault with a dangerous weapon) is a crime of violence under the elements clause. | Morris: variant and statutory predicate are ambiguous; therefore it may not qualify. | Affirmed Count Two — VICAR Assault DW (premised on N.Y. Penal Law § 120.05(2), and possibly § 120.10(1)) qualifies as a crime of violence. |
| 3) May the court use the modified categorical approach and plea-colloquy/charging documents to identify the specific VICAR predicate? | Government: Yes — use Shepard/MATHIS/Descamps line to identify the statute of conviction. | Morris: Shepard documents do not specify which VICAR form; cannot identify predicate. | Court applied the modified categorical approach and relied on plea colloquy and charging papers to identify VICAR Assault DW as the predicate. |
| 4) Do N.Y. Penal Law § 120.05(2) and § 120.10(1) (as predicates for VICAR Assault DW) satisfy the § 924(c) elements clause? | Government: Second Circuit precedent treats these NY assault statutes (as applied) as crimes of violence. | Morris: challenges whether certain mens rea/elements necessarily involve violent force. | Held: VICAR Assault DW premised on § 120.05(2) (and plausibly § 120.10(1)) is a crime of violence under § 924(c)(3)(A) (court relied on Second Circuit precedent). |
Key Cases Cited
- 142 S. Ct. 2015 (United States v. Taylor) (holds attempted Hobbs Act robbery is not a § 924(c) crime of violence)
- 139 S. Ct. 2319 (United States v. Davis) (invalidates § 924(c) residual clause as unconstitutionally vague)
- 570 U.S. 254 (Descamps v. United States) (explains categorical/modified categorical approach and divisibility)
- 544 U.S. 13 (Shepard v. United States) (permits limited review of certain documents to identify the offense of conviction)
- 579 U.S. 500 (Mathis v. United States) (discusses divisibility and use of Shepard materials)
- 33 F.4th 63 (United States v. Laurent) (2d Cir.) (VICAR assault with a dangerous weapon premised on NY law can be a crime of violence)
- 7 F.4th 90 (United States v. White) (2d Cir.) (similar conclusion re: VICAR Assault DW)
- 36 F.4th 423 (United States v. Pastore) (2d Cir.) (discussion of categorical approach in this Circuit)
- 58 F.4th 72 (United States v. McCoy) (2d Cir.) (applies Taylor to attempted Hobbs Act robbery)
- 58 F.4th 34 (Singh v. Garland) (2d Cir.) (treats NY § 120.10(1) as a crime of violence under an analogous elements clause)