955 F.3d 391
4th Cir.2020Background
- Four defendants (Allen, Holland, Keene, Terry) were indicted on multiple counts, including three VICAR counts (Counts 4, 8, 14) alleging they "assault[ed] with a dangerous weapon" by shooting or shooting at victims in violation of Virginia Code § 18.2-282 (brandishing).
- VICAR, 18 U.S.C. § 1959, criminalizes certain enumerated violent acts (e.g., murder, kidnapping, assault with a dangerous weapon) committed "in violation of the laws of any State or the United States." The only disputed element on appeal was whether the charged conduct satisfied the fourth VICAR element (the enumerated violent crime).
- In the district court both parties agreed the Taylor categorical approach should be used to compare the elements of the federal enumerated offense (assault with a dangerous weapon) and the state offense (Virginia brandishing); the court held Virginia brandishing is broader because it lacks an intent/threat-to-inflict-injury element, and dismissed the VICAR-brandishing counts.
- The government appealed and abandoned its district-court position, arguing on appeal that VICAR requires proof that the defendant’s actual conduct (not an element-by-element match) constituted the enumerated federal offense and violated the state law.
- The Fourth Circuit reviewed de novo, concluded the VICAR phrase at issue ("assaults with a dangerous weapon ... in violation of the laws of any State") is conduct‑based and lacks the categorical language (e.g., "offense," "conviction," "elements") that triggers the Taylor/Descamps categorical approach, and therefore reversed and remanded to reinstate the dismissed counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the categorical approach applies to VICAR’s clause "assaults with a dangerous weapon ... in violation of the laws of any State." | Gov (on appeal): categorical approach not required; statute is conduct‑based and jury should decide if actual conduct satisfies both the enumerated federal crime and state law. | Defendants: categorical approach required; state offense must be a categorical match to the federal enumerated offense, and Virginia brandishing is broader so cannot serve as the VICAR predicate. | Court: Categorical approach does not apply; statute’s present‑tense conduct phrasing signals Congress intended a conduct‑based inquiry. |
| Whether Virginia brandishing must be element-for-element identical to federal "assault with a dangerous weapon" to support a VICAR count. | Gov: not required if the defendant’s actual conduct satisfies the federal enumerated offense and the state law. | Defendants: must match categorically; because brandishing lacks an intent/threat element it is overbroad. | Court: No categorical matching requirement; whether conduct constituted the enumerated offense and violated state law is a jury question. |
| Remedy for district court dismissal of VICAR-brandishing counts. | Gov: appeals dismissal and asks for reinstatement. | Defendants: urge affirmance of dismissal. | Court: Reversed dismissal; remanded to reinstate counts and proceed consistent with opinion. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (origin of the categorical approach for prior convictions)
- Descamps v. United States, 570 U.S. 254 (2013) (limits on using conduct‑based inquiry when statute requires categorical comparison)
- Davis v. United States, 139 S. Ct. 2319 (2019) (applied categorical approach to a currently charged offense where statutory text demanded it)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (reading of categorical language like "offense" and "nature" to require element‑based analysis)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach in immigration context where statute referenced a conviction)
- Nijhawan v. Holder, 557 U.S. 29 (2009) (statutory text controls whether categorical approach applies)
- United States v. Simms, 914 F.3d 229 (4th Cir. 2019) (en banc) (textual analysis governs whether to apply categorical or conduct‑based approach)