52 F.4th 143
4th Cir.2022Background:
- Martin Manley pleaded guilty in 2009 to RICO conspiracy and two §924(c) firearm counts; those §924(c) convictions (Counts 25 and 35) rested on VICAR predicates.
- Count 25 relied on VICAR assault (Count 24), charged as unlawful wounding under Va. Code § 18.2-51 (assault with a dangerous weapon or causing serious bodily injury).
- Count 35 relied on VICAR murder (Count 34), charged as murder under Va. Code § 18.2-32 (second-degree murder with implied malice/extreme recklessness).
- Manley filed a §2255 attack after Davis and in light of Borden, arguing the VICAR predicates could be committed with mere recklessness and thus no longer qualify as "crimes of violence" under §924(c)(3)(A).
- The Fourth Circuit held that (1) Virginia unlawful wounding requires specific intent (greater than recklessness) and therefore qualifies, and (2) second-degree murder’s implied malice ("extreme recklessness") is sufficiently culpable to satisfy §924(c)’s elements clause; it affirmed the §924(c) convictions.
Issues:
| Issue | Manley’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether VICAR assault (based on Va. §18.2-51) is a "crime of violence" post-Borden | VICAR assault can be committed with ordinary recklessness; Borden bars recklessness | Virginia unlawful wounding requires specific intent to maim/disfigure/disable/kill, so it is violent | VICAR assault (as charged via Va. §18.2-51) demands specific intent and is a crime of violence |
| Whether VICAR murder (second-degree, Va. §18.2-32) is a "crime of violence" post-Borden | Second-degree murder’s implied malice is mere recklessness and thus insufficient under Borden | Implied malice is "extreme recklessness"—closer to knowledge and satisfies elements clause | Second-degree murder’s implied malice/"extreme recklessness" meets the elements clause and is a crime of violence |
| Whether the court may look to the state statute underlying a VICAR count | Manley: VICAR is a generic federal offense; plea did not incorporate state statute, so state elements need not be considered | VICAR by its terms requires the assault/murder be in violation of state or federal law, so state statute is properly considered | VICAR incorporates the state-law offense; courts may examine the state statute’s mens rea to assess whether the VICAR predicate is a crime of violence |
| Whether VICAR’s purpose element supplies the requisite mens rea even if the underlying act is reckless | Manley: One can act to advance enterprise position yet commit harm recklessly (e.g., reckless getaway driver) | VICAR requires the assault/murder be committed "for the purpose of" gaining/maintaining position—a purposeful state of mind tied to the violent act | VICAR’s purpose element requires a deliberate purpose as to the violent act and thus supplies a mens rea greater than ordinary recklessness |
Key Cases Cited
- Borden v. United States, 141 S. Ct. 1817 (2021) (plurality that ordinary recklessness cannot qualify as a violent felony under the elements clause)
- United States v. Davis, 139 S. Ct. 2319 (2019) (invalidating §924(c) residual clause)
- United States v. Rumley, 952 F.3d 538 (4th Cir. 2020) (Virginia unlawful wounding is a violent felony under the elements clause)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (negligent mens rea does not satisfy force-based criminal definitions)
- Alvarado-Linares v. United States, 44 F.4th 1334 (11th Cir. 2022) (extreme-recklessness offenses can satisfy elements clause post-Borden)
- United States v. Begay, 33 F.4th 1081 (9th Cir. 2022) (en banc) (same conclusion on extreme recklessness)
- United States v. Báez-Martínez, 950 F.3d 119 (1st Cir. 2020) (second-degree murder with extreme recklessness qualifies under elements clause)
- United States v. Mathis, 932 F.3d 242 (4th Cir. 2019) (analysis of comparing federal and state elements for predicate offenses)
- In re Irby, 858 F.3d 231 (4th Cir. 2017) (observing that murder is categorically a crime of violence)