UNITED STATES OF AMERICA, Plaintiff - Appellant, v. TREDARIUS JAMERIQUAN KEENE, a/k/a Bubba, a/k/a Bubs; MONTEZ LAMAR ALLEN, a/k/a Doc Milla; JAVONTAY JACQUIS HOLLAND, a/k/a Tay, a/k/a Reckless; JALEN CORMARRIUS TERRY, a/k/a Fats, Defendants - Appellees.
No. 19-4609
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
April 9, 2020
PUBLISHED
Appeal from the United States District Court for the Western District of Virginia, at Danville. Michael F. Urbanski, Chief District Judge. (4:18-cr-00012-MFU-RSB-3; 4:18-cr-00012-MFU-RSB-4; 4:18-cr-00012-MFU-RSB-5; 4:18-cr-00012-MFU-RSB-8)
Argued: January 31, 2020 Decided: April 9, 2020
Before KEENAN, HARRIS, and QUATTLEBAUM, Circuit Judges.
Reversed and remanded by published opinion. Judge Keenan wrote the opinion, in which Judge Harris and Judge Quattlebaum joined.
ARGUED: Michael Andrew Baudinet, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellant. Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellees. ON BRIEF: Thomas T. Cullen, Unitеd States Attorney, Laura Day Rottenborn, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellant. Mark D. Haugh, HAUGH & PREAS, PLC, Marion, Virginia, for Appellee Tredarius Keene. Thomas J. Bondurant, Jr., Monica Taylor Monday, GENTRY LOCKE RAKES & MOORE, Roanoke, Virginia; Jacqueline M. Reiner, JACQUELINE M. REINER, PLLC, Richmond, Virginia, for Appellee Javontay Holland. Seth C. Weston, LAW OFFICE OF SETH C. WESTON, PLC, Roanoke, Virginia, for Appellee Montez Allen.
This appeal requires us to interpret the text of
Bеcause the VICAR statute requires the commission of enumerated federal offenses as well as separate state or federal crimes, the defendants assert that we must apply the categorical approach articulated in Taylor v. United States, 495 U.S. 575 (1990), to determine whether Virginia brandishing is a “categorical match” to the enumerated federal offense of assault with a dangerous weapon. According to the defendants, if the Virginia offense “sweeps more broadly” than the enumerated federal offense, the crimes are not a categorical match and the defendants cannot be convicted of VICAR assault with a dangerous weapon based on Virginia brandishing. See Omargharib v. Holder, 775 F.3d 192, 196-97 (4th Cir. 2014). In the district court, the government agreed with the defendants that a comparison of the federal and state offenses was required without any consideration
Upon our review, we conclude that the portion of the VICAR statute before us is not subject to analysis under the categoriсal approach. Unlike numerous other statutory provisions, nothing in the statutory language at issue suggests that Congress intended an element-by-element comparison of the enumerated federal offense with the specified state offense. Nor do the underlying policy rationales for the categorical approach apply to the relevant text in the VICAR statute. Instead, the statutory language at issue requires only that a defendant‘s сonduct, presently before the court, constitute one of the enumerated federal offenses as well as the charged state crime. We therefore reverse the decision of the district court, and remand for the court to reinstate the dismissed VICAR charges alleging Virginia brandishing.
I.
The defendants, Montez Allen, Javontay Holland, Tredarius Keene, and Jalen Terry, along with several other co-defendants, were charged in a 15-count indictment with various offenses related to their involvement in the Bloods gang in Danville, Virginia. In Counts 4, 8, and 14 of the indictment, the defendants were charged with committing violent crimes in aid of racketeering activity, in violation of
The defendants moved to dismiss the VICAR-brandishing counts, contending that the crime of Virginia brandishing did not “match” the enumerated federal offense of “assault with a dangerous weapon” in the VICAR statute. Applying the categorical approach, the district court concluded that the crime of Virginia brandishing is broader than the offense of assault with a dangerous weapon under VICAR, because the federal assault crime requires аs an element an intent or threat to inflict injury while Virginia brandishing does not. The district court accordingly dismissed the VICAR-brandishing counts, and the government filed this interlocutory appeal.
II.
We review de novo the district court‘s decision dismissing the three counts in the indictment. United States v. Good, 326 F.3d 589, 591 (4th Cir. 2003). Encompassed within this de novo review is the question whether the categorical approach must be applied to the VICAR-brandishing counts, which presents an issue of statutory interpretation. United States v. Davis, 139 S. Ct. 2319, 2327 (2019) (applicability of categorical approach is question of statutory interpretation); United States v. Weaver, 659 F.3d 353, 356 (4th Cir. 2011) (de novo review applies when construing a statute‘s language).
(a) Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bоdily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States,2 or attempts or conspires so to do, shall be punished . . .
(3) for assault with a dangerous weapon or assault resulting in serious bodily injury, by imprisonment for not more than twenty years or a fine under this title, or both.
The VICAR statute complements the Racketeer Influenced and Corrupt Organizations Act (RICO),
In the district court, both the government and the defendants argued that the VICAR statute requires a comparison of the definition of the enumerated federal offense, assault with a dangerous weapon, with the charged state offense, Virginia brandishing, without consideration of the defendants’ conduct. The gоvernment now has changed course, arguing that the language of the VICAR statute does not indicate any basis for requiring a comparison of the elements of the federal and state offenses. Thus, the government presently maintains that a jury must find that the defendant‘s actual conduct constituted one of the enumerated federal offenses while also violating the state law charged in the indictment.
In response, the defendants contend that under Supreme Court precedent, whenever a federal statute refers to enumerated federal crimes and state crimes, a defendant violates the statute only if the elements of the state offense are equivalent to or narrower than the federal offense. Therefore, the defendants urge us to apply the categorical approach to the VICAR statute, and to conclude that Virginia brandishing may not serve as a predicate offense for the crime of assault with a dangerous weapon.
Initially, we observe that we are troubled by the government‘s failure to advance
A.
Before addressing the parties’ arguments, we begin by discussing the principles underlying the categorical approach, an analytical tool used to determine whether a particular state or federal offense falls within a federal statutory definition. See generally Descamps v. United States, 570 U.S. 254 (2013). The categorical approach typically is used in considering prior convictions, and reflects the general principle that a defendant will not be subject to a detrimental legal consequence based on a past conviction unless courts can be certain that his prior offense satisfies the full contours of the federal requirement.3 See generally id. at 266-74. Accordingly, this approach most often is used to evaluate whether a defendant, based on a prior conviction, qualifies for a federal sentencing enhancement or an immigration consequence. See, e.g., Moncrieffe v. Holder, 569 U.S. 184 (2013); Taylor, 495 U.S. 575.
Under the categorical approach, courts “focus[] solely on the elements of the offense of conviction, comparing those to the commonly understood elements of the generic offense identified in the federal statute.” United States v. Price, 777 F.3d 700, 704 (4th Cir. 2015); see also Moncrieffe, 569 U.S. at 190. A state offense is a “categorical match” to the federal crime only if “the elements comprising the statute of conviction [are] the same as, or narrower than, those of the generic offense.” Price, 777 F.3d at 704.
The categorical approach arose from the Supreme Court‘s decision in Taylor v. United States, 494 U.S. 575 (1990), which addressed whether a defendant qualified for an enhanced sentence under the Armed Career Criminal Act,
The Court in Taylor identified two sources of “practical difficulties and potential unfairness” that would result if courts
The Supreme Court has reiterated these rationales and has used the categorical approach in cases addressing a range of federal statutes. See Davis, 139 S. Ct. 2319 (addressing
Applying these principles, it is apparent that courts use the categorical approach because of the need to determine whether a state offense is “comparable” to a federal offense that is described generally. See Moncrieffe, 569 U.S. at 190. In contrast, the categorical approach is not applicable when statutory language lacks any textual cues demonstrating Congress’ intent to examine generally the elements of an offense. See Nijhawan v. Holder, 557 U.S. 29, 38 (2009) (addressing the monetary loss threshold of the “fraud or deceit” offense in the INA,
B.
Given this precedent, we review the relevant language of the VICAR statute as our “first and foremost guide” in determining whether the categorical approach is applicable to crimes charged under that statute. United States v. Simms, 914 F.3d 229, 240 (4th Cir. 2019) (en banc); see also Davis, 139 S. Ct. at 2327; cf. Shular v. United States, 140 S. Ct. 779, 784-86 (2020) (considering “natural” reading of definition of “serious drug offense” under ACCA to determine which method of categorical approach to apply, and concluding that Congress “opt[ed] . . . for language suited to conduct“). As an initial matter, we observe that in addition to murder, kidnapping, maiming, and two types of assault, the VICAR statute also prohibits the act of “threaten[ing] to commit a crime of violence” in violation of a state or federal law.
Whoever . . . assaults with a dangerous weapon . . . in violation of the laws of any State or the United States . . . shall be punished . . . .
Nothing in this language suggests that the categorical approach should be used to compare the enumerated federal offense of assault with a dangerous weapon with the state offense of Virginiа brandishing. In fact, the most natural reading of the statute does not require any comparison whatsoever between the two offenses. By using the verb “assaults” in the present tense, the language requires that a defendant‘s presently charged conduct constitute an assault under federal law, while simultaneously also violating a state law.4 The VICAR statute includes no language suggesting that all violations of a state law also must qualify as the enumerated federal offense, a result that would be required under the categorical approach.
Notably, the VICAR language under which the defendants were charged contains none of the words or phrases that have triggered use of the categorical approach in other federal statutes. In the clearest example, courts have applied the categorical approach when a statute refers to the “elements” of a state offense. See, e.g., Taylor, 495 U.S. at 600; Simms, 914 F.3d at 233. In the context of the INA, the “relevant statutory hook” for the categorical approach is the statute‘s reference to the alien‘s “conviction,” rather than to the “acts” the person committed. Moncrieffe, 569 U.S. at 191 (citation omitted); see also Dimaya, 138 S. Ct. at 1217. The justification for applying the categorical approach to the term “conviction” is apparent, because that term necessarily encompasses the elements of the crime at issue covering the full range of prоhibited conduct, without reference to the specific conduct in which the defendant engaged.
As discussed above, the Supreme Court has identified other similar terms, including “felony” and “offense,” that also “are read naturally to denote the crime as generally committed.” Dimaya, 138 S. Ct. at 1217 (citation and quotation marks omitted); see also Davis, 139 S. Ct. at 2328-29 (reading the term “offense” in Section 924(c) as referring to “a generic crime . . . in general” (citation omitted)); Leocal v. Ashcroft, 543 U.S. 1, 7 (2004) (when a statute refers to the “offense” of conviction, courts “look to the elemеnts and the nature of the offense of conviction, rather than to the particular facts” of a person‘s crime). And when a statute refers to the “nature” of an “offense,” we also consider that offense categorically, by evaluating what the crime “normally . . . entails, not what happened to occur on one occasion.”5 Davis, 139 S. Ct. at 2329 (quoting Dimaya, 138 S. Ct. at 1217-18); see also Simms, 914 F.3d at 241. Thus, categorical terms such as “offense,” “elements,” and “conviction” appear in a variety оf statutory contexts, and the use of such terms signals Congress’ intent to disregard a defendant‘s actual conduct, and instead to examine the elements of an offense generally.
In contrast, the language of the VICAR provision under which the defendants were charged is entirely devoid of any words or phrases arguably signaling such Congressional intent. We decline to apply the categorical approach based only on the charging of a federal offense of assault with a dangerous weapon in combination with a state offense, without any indication that we should conduct an elements-based analysis of either offense. To the contrary, the VICAR statute‘s use of the present-tense verb “assaults,” without additional reference to an “offense,” “conviction,” “felony,” the “elements” of assault, or any other categorical term, indicates that Congress did not intend for us to “disregard how the defеndant[s] actually committed [their] crime[s].” Davis, 139 S. Ct. at 2326. Rather, under the plain language of the VICAR statute, a defendant may be convicted when, by his conduct, he “assaults” another person with a dangerous weapon “in violation of” the state law charged in the indictment. This unambiguous statutory language precludes application of a formalistic, overinclusive categorical approach, and instead holds defendants accountable for their actual conduct as presented to a jury.
We also observe that the practical and constitutional concerns underlying the categorical approach are not present here. Because the VICAR language under which the defendants were charged refers only to presently charged conduct, courts are not required to reconstruct the facts underlying previous convictions. See Descamps, 570 U.S. at 270-71; Taylor, 495 U.S. at 601. And the jury, not the judge, will determine whether the defendant committed the offenses charged in the indictment, eliminating any Sixth Amendment concerns. See Alleyne v. United States, 570 U.S. 99, 103 (2013); see also Descamps, 570 U.S. at 269; Taylor, 495 U.S. at 601. Although these considerations are not dispositive of our inquiry, see Davis, 139 S. Ct. at 2327; Simms, 914 F.3d at 240, in their absence, we are confident that we need not apply the categorical approach to protect the defendants’ rights under the VICAR statute.
Despite its seemingly ubiquitous presence, we apply the categorical approach only when thе text of a statute signals the need for such an elements-based approach. See United States v. Pena, 952 F.3d 503, 508 n.4 (4th Cir. 2020) (explaining that the categorical approach is “not a default rule of statutory construction,” and we apply the approach only “when compelled to do so” by the statutory text). We will not employ this approach, a judicially created construct, in a manner contrary to “Congress’ manifest purpose.” See United States v. Hayes, 555 U.S. 415, 427 (2009). Reading the lаnguage of the VICAR statute under which the defendants were charged, we conclude that Congress intended for individuals to be convicted of VICAR assault with a dangerous weapon by engaging
III.
For these reasons, we reverse the district court‘s decision dismissing Counts 4, 8, and 14 of the indictment. We remand the case for the district court to reinstate these counts and to conduct further proceedings consistent with the principles expressed in this opinion.
REVERSED AND REMANDED