Opposition Brief — Dearnta Lavon Thomas, Petitioner v. United States

No. 23-1168

In the Supreme Court of the United States

DEARNTA LAVON THOMAS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

SANGITA K. RAO

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether an inquiry into the classification of assault

with a dangerous weapon, in violation of the Violent

Crimes in Aid of Racketeering (VICAR) statute, 18

U.S.C. 1959(a)(3), as a “crime of violence” under 18

U.S.C. 924(c)(3)(A) must be limited solely to the VICAR

element requiring a violation of state law or federal

statutory law, or instead may look to other elements

necessary to prove the VICAR offense.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 9

Conclusion ................................................................................... 17

TABLE OF AUTHORITIES

Cases:

Alvarado-Linares v. United States,

44 F.4th 1334 (11th Cir. 2022) ..................................... 13, 16

Borden v. United States, 593 U.S. 420 (2021) ............. 4, 5, 16

Johnson v. United States, 576 U.S. 591 (2015) ................. 6, 7

Manners v. United States, 947 F.3d 377

(6th Cir. 2020)...................................................................... 12

Mathis v. United States, 579 U.S. 500 (2016) ............. 4, 5, 13

Scheidler v. National Org. for Women, Inc.,

537 U.S. 393 (2003).............................................................. 11

Sessions v. Dimaya, 584 U.S. 148 (2018) .............................. 7

Small v. United States, 544 U.S. 385 (2005) ....................... 14

United States v. Adkins, 883 F.3d 1207

(9th Cir. 2018)...................................................................... 12

United States v. Bryant, 949 F.3d 168 (4th Cir. 2020) ........ 9

United States v. Davis, 588 U.S. 445 (2019) ............... 4, 7, 14

United States v. Davis, 74 F.4th 50

(2d Cir.), cert. denied, 144 S. Ct. 436 (2023) ..................... 15

United States v. Keene, 955 F.3d 391

(4th Cir. 2020).................................................................. 8, 11

United States v. McDaniel, 85 F.4th 176

(4th Cir. 2023)........................................................................ 9

(III)

IV

Cases—Continued:

Page

United States v. Morris, 61 F.4th 311

(2d Cir. 2023) ....................................................................... 15

United States v. Nardello, 393 U.S. 286 (1969) ............ 11, 12

United States v. Pastore, 83 F.4th 113

(2d Cir. 2023), cert. granted on other grounds

sub nom. Delligatti v. United States,

No. 23-825 (June 3, 2024) ................................................... 15

United States v. Rodriguez-Moreno,

526 U.S. 275 (1999)................................................................ 5

United States v. Taylor, 596 U.S. 845 (2022) ........................ 4

Welch v. United States, 578 U.S. 120 (2016) ......................... 7

Statutes and rule:

Armed Career Criminal Act of 1984,

18 U.S.C. 924(e)..................................................................... 7

18 U.S.C. 924(e)(1) .............................................................. 14

Racketeer Influenced and Corrupt Organizations

Act, 18 U.S.C. 1961 et seq.:

18 U.S.C. 1961(1) (Supp. III 2003) ................................. 11

18 U.S.C. 1962(c) ........................................................... 2, 3

18 U.S.C. 1962(d) ............................................................... 3

Travel Act, 18 U.S.C. 1951 et seq.:

18 U.S.C. 1952 .................................................................. 11

18 U.S.C. 1952(b) (Supp. III 1967) ................................ 11

18 U.S.C. 1959(a) .................................................... 5, 10-12

18 U.S.C. 1959(a)(3) ....................................................... 3, 5

18 U.S.C. 1959(a)(5) ........................................................... 3

18 U.S.C. 2 ............................................................................ 2, 3

18 U.S.C. 16(b) ......................................................................... 7

18 U.S.C. 922(g)(1) ............................................................. 3, 14

18 U.S.C. 924(c)......................................................... 4-9, 13, 14

18 U.S.C. 924(c)(1)(A)............................................... 2-4, 10, 14

V

Statutes and rule—Continued:

Page

18 U.S.C. 924(c)(1)(A)(i) .......................................................... 4

18 U.S.C. 924(c)(1)(A)(iii) .................................................... 4, 6

18 U.S.C. 924(c)(3) ....................................................... 4, 13, 14

18 U.S.C. 924(c)(3)(A)................................. 4, 5, 9, 8, 10, 15, 16

18 U.S.C. 924(c)(3)(B).............................................................. 4

21 U.S.C. 846 ............................................................................ 4

28 U.S.C. 2255 .................................................................. 2, 7, 8

28 U.S.C. 2255(f) (3) ................................................................. 7

28 U.S.C. 2255(h) ..................................................................... 7

Va. Code Ann.:

§ 18.2-53.1 (2004) ......................................................... 6, 13

§ 18.2-282 (2005) .......................................................... 6, 13

Sup. Ct. R. 14(1)(a) ................................................................ 16

Miscellaneous:

129 Cong. Rec. (1983):

pp. 22883-22884 ................................................................ 12

p. 22906 ............................................................................. 12

In the Supreme Court of the United States

No. 23-1168

DEARNTA LAVON THOMAS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-17a)

is reported at 87 F.4th 267. A prior opinion of the court

of appeals (Pet. App. 36a-53a) is reported at 988 F.3d

783. The opinion and order of the district court (Pet.

App. 18a-35a) is not published in the Federal Supplement but is available at 2021 WL 3493493.

JURISDICTION

The judgment of the court of appeals was entered on

November 29, 2023. On February 23, 2024, the Chief

Justice extended the time within which to file a petition

for a writ of certiorari to and including March 28, 2024.

On March 20, 2024, the Chief Justice further extended

the time to and including April 27, 2024, and the petition

was filed on April 26, 2024. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

Following a guilty plea in the United States District

Court for the Eastern District of Virginia, petitioner

was convicted on one count of participating in a racketeering enterprise, in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO Act), 18

U.S.C. 1962(c); and one count of discharging a firearm

in furtherance of a crime of violence, in violation of 18

U.S.C. 924(c)(1)(A) and 2. Pet. App. 54a-55a; see id. at

59a, 73a-74a, 107a-108a. The district court sentenced

petitioner to an aggregate 180 months of imprisonment,

to be followed by five years of supervised release. Id.

at 57a; C.A. J.A. 95 ( judgment). Petitioner did not appeal his conviction or sentence.

Petitioner filed a motion to vacate his sentence under

28 U.S.C. 2255, which was denied. Pet. App. 6a. He

subsequently twice requested authorization to file a second Section 2255 motion. Ibid. The court of appeals

granted his second request, ibid., after which the district court denied the successive Section 2255 motion on

the merits. Id. at 18a-35a. The court of appeals granted

a certificate of appealability, C.A. Doc. 25 (May 22,

2023), and affirmed, Pet. App. 1a-17a.

1. Petitioner was “a founding member and ‘three-star

general’ of a street gang known as the Bounty Hunter

Bloods/Nine Tech Gangsters.” Pet. App. 3a. The gang

operated in Southeast Virginia from roughly 2003 to

2011. Ibid. The gang’s activities during that time included “murder, attempted murder, kidnaping, robbery, and narcotics trafficking.” Id. at 71a.

Petitioner, who “went by the nickname ‘Bloody Razor,’ ” was heavily involved in the gang’s criminal activities. Pet. App. 3a. On multiple occasions, petitioner attempted to murder a member of the Crips—a rival

3

gang—through methods that included chasing after the

victim in a car, “h[a]ng[ing] out the passenger side window,” and shooting at the victim. Id. at 74a-75a.

In an earlier incident, petitioner joined with fellow

gang members in attempting to rob that same Crips

member—a victim individually selected by petitioner.

Pet. App. 73a-74a. When the victim took off running,

petitioner’s accomplices shot at him, hitting him in the

lower back. Id. at 74a. Petitioner then drove the getaway vehicle. Id. at 73a-74a. Petitioner also engaged in

multiple additional robberies and attempted robberies,

conduct which often involved him or accomplices firing

shots at a victim or threatening a victim with a firearm.

Id. at 72a-74a. Petitioner also distributed crack cocaine

and heroin for the gang. Id. at 75a.

2. In April 2011, a grand jury in the Eastern District

of Virginia returned an indictment charging 11 gang

members with 59 offenses relating to racketeering,

drug trafficking, and firearms. Pet. App. 78a-145a. The

indictment charged petitioner with 15 counts: one count

of participating in a RICO enterprise, in violation of 18

U.S.C. 1962(c) (Count 1); one count of conspiring to violate the RICO Act, in violation of 18 U.S.C. 1962(d)

(Count 2); four counts of assault with a dangerous

weapon, in violation of the Violent Crimes in Aid of Racketeering (VICAR) statute, 18 U.S.C. 1959(a)(3) and 2

(Counts 3, 6, 12, 16); four counts of possessing, brandishing, and discharging a firearm in furtherance of a crime

of violence, in violation of 18 U.S.C. 924(c)(1)(A) and 2

(Counts 4, 7, 13, 17); two counts of possessing a firearm

following a felony conviction, in violation of 18 U.S.C.

922(g)(1) and 2 (Counts 5, 8); two counts of VICAR attempted murder, in violation of 18 U.S.C. 1959(a)(5) and

2 (Counts 14, 15); and one count of conspiring to engage

4

in drug trafficking, in violation of 21 U.S.C. 846 (Count

58). Pet. App. 78a-110a, 112a-115a, 140a-144a.

a. Section 924(c) prescribes a mandatory consecutive sentence for possessing a firearm in furtherance of

a “crime of violence,” or using or carrying a firearm during and in relation to a “crime of violence.” 18 U.S.C.

924(c)(1)(A). If the firearm is discharged, the mandatory consecutive sentence is enhanced from a five-year

term to a ten-year term. 18 U.S.C. 924(c)(1)(A)(i) and (iii).

Section 924(c)(3) defines a crime of violence in two

ways. First, the “elements clause” encompasses any federal felony that “has as an element the use, attempted

use, or threatened use of physical force against the person or property of another.” 18 U.S.C. 924(c)(3)(A). Pursuant to Borden v. United States, 593 U.S. 420 (2021),

use of force requires conduct committed with a mens

rea more culpable than ordinary recklessness. See id.

at 429 (plurality opinion); see also id. at 446 (Thomas,

J., concurring in the judgment). Second, the “residual

clause” includes any federal felony that “by its nature,

involves a substantial risk that physical force against

the person or property of another may be used in the

course of committing the offense.” 18 U.S.C. 924(c)(3)(B).

In United States v. Davis, 588 U.S. 445 (2019), however,

this Court held that the residual clause is unconstitutionally vague.

This Court employs a “categorical approach” to determine whether an offense is a crime of violence under

Section 924(c)(3)(A). United States v. Taylor, 596 U.S.

845, 850 (2022). Under that approach, a court “focus[es]

solely” on “the elements of the crime of conviction,” not

“the particular facts of the case.” Mathis v. United States,

579 U.S. 500, 504 (2016). The categorical approach assesses whether the “least culpable” conduct that could

5

satisfy the offense elements in a hypothetical case

would “necessarily involve[ ],” Borden, 593 U.S. at 424

(plurality opinion), the “use, attempted use, or threatened use of physical force against the person or property of another,” 18 U.S.C. 924(c)(3)(A). The defendant’s actual conduct is “irrelevant.” Borden, 593 U.S. at

424.

If, however, the statute in question lists multiple alternative elements, it is “divisible” into different offenses and a court may apply the “modified categorical

approach” to classify a conviction. Mathis, 579 U.S. at

505-506 (citation omitted). Under the modified categorical approach, a court may “look[] to a limited class of

documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine

what crime, with what elements, [the] defendant” was

found to have committed. Ibid.

b. Although the underlying crime of violence for a

Section 924(c) offense need not itself be charged as a

separate count, see United States v. Rodriguez-Moreno,

526 U.S. 275, 280 (1999), the Section 924(c) charge at issue here listed the VICAR assault with a dangerous

weapon, in violation of 18 U.S.C. 1959(a)(3), alleged in

Count 3 of the indictment, as the predicate crime. Pet.

App. 106a-108a.

Section 1959(a)(3) prohibits, inter alia, “assault[]

with a dangerous weapon” against any person, “in violation of the laws of any State or the United States,” “for

the purpose of * * * maintaining or increasing position

in an enterprise engaged in racketeering activity” or “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.” 18 U.S.C. 1959(a). The charge of VICAR assault

6

with a dangerous weapon alleged in Count 3 was premised in part on petitioner’s alleged violation of Va. Code

Ann. § 18.2-53.1 (2004), which criminalizes the use or

display of a firearm in committing a felony, and Va.

Code Ann. § 18.2-282 (2005), which criminalizes pointing, holding, or brandishing a firearm in such manner

as to reasonably induce fear in another. Pet. App. 106a107a (Count 3).

The particular VICAR offense charged in Count 3 involved petitioner’s participation in the attempted robbery and assault with a dangerous weapon that resulted

in the Crips member being shot in the back. See p. 3,

supra; Pet. App. 73a-74a, 93a, 106a-107a. The Section

924(c) charge, in turn, included an allegation that the

firearm was discharged, carrying a statutory minimum

consecutive sentence of ten years of imprisonment, 18

U.S.C. 924(c)(1)(A)(iii). Pet. App. 59a, 107a-108a.

c. Pursuant to a plea agreement, petitioner pleaded

guilty to a substantive RICO offense (Count 1) and to a

single Section 924(c) offense (Count 4)—specifically, the

one premised on the VICAR assault with a dangerous

weapon charged in Count 3. Pet. App. 54a-55a, 58a-70a,

107a-108a. In return, the government dismissed the

other charges. Id. at 58a-70a.

In December 2011, the district court sentenced petitioner to 180 months of imprisonment, consisting of a

60-month sentence on the RICO conviction and a consecutive 120-month (ten-year) sentence on the Section

924(c) conviction, to be followed by concurrent terms of

five years of supervised release on each count. Pet.

App. 57a; C.A. J.A. 95. Petitioner did not appeal.

3. In 2015, this Court held in Johnson v. United

States, 576 U.S. 591, that the residual clause of the definition of “violent felony” in the Armed Career Criminal

7

Act of 1984, 18 U.S.C. 924(e), is unconstitutionally

vague. Johnson, 576 U.S. at 594-597; see Welch v.

United States, 578 U.S. 120, 122, 130, 135 (2016) (holding that Johnson announced a new rule with retroactive

effect on collateral review). Thereafter, this Court held

in Sessions v. Dimaya, 584 U.S. 148 (2018), that the residual definition of a “crime of violence” in 18 U.S.C.

16(b) is unconstitutionally vague. 584 U.S. at 152.

In 2018, petitioner filed a motion to vacate his sentence under 28 U.S.C. 2255 in light of Dimaya. Pet.

App. 6a. The district court denied that motion as untimely under 28 U.S.C. 2255(f )(3) “after noting that the

rule applied in Dimaya had been set forth in Johnson

three years earlier.” Pet. App. 6a.

Petitioner later applied to the court of appeals under

28 U.S.C. 2255(h) for authorization to file an additional

Section 2255 motion, “though there had been no other

changes in the law” at that point. Pet. App. 6a. The court

denied the request. Ibid.

4. After this Court held in Davis, 588 U.S. at 470,

that Section 924(c)’s residual clause is itself unconstitutionally vague, petitioner applied again to the court of

appeals for permission to file an additional Section 2255

motion. Pet. App. 6a. The court granted the request,

id. at 36a-53a, and petitioner filed the authorized motion

in district court, see D. Ct. Doc. 678 (Mar. 18, 2021).

In his motion, petitioner asserted that his Section

924(c) conviction is invalid, on the theory that the underlying offense of VICAR assault with a dangerous

weapon no longer qualifies as a crime of violence after

Davis. Pet. App. 19a-20a. In opposition, the government both responded on the merits and invoked the procedural default bar, pointing out that petitioner had

failed to challenge his Section 924(c) conviction before

8

it became final and had failed to demonstrate prejudice

or actual innocence to overcome his procedural default.

D. Ct. Doc. 696, at 8-9 (May 24, 2021).

The district court denied the Section 2255 motion on

the merits without resolving whether petitioner had

overcome his procedural default. Pet. App. 18a-35a.

The court determined that the Section 924(c) conviction’s underlying offense of VICAR assault with a dangerous weapon qualifies as a crime of violence under

Section 924(c)(3)(A)’s elements clause because VICAR

assault with a dangerous weapon requires proof of the

elements of generic federal assault with a dangerous

weapon. Id. at 33a-34a. The court reasoned that the

generic federal offense requires the “use, attempted

use, or threatened use of physical force against the person or property or another,” id. at 34a (quoting 18

U.S.C. 924(c)(3)(A)), and that intent greater than recklessness is “inherent in placing another in reasonable

apprehension of immediate harm with a dangerous

weapon,” ibid. (emphasis omitted). The court denied a

certificate of appealability. Id. at 35a.

5. The court of appeals granted a certificate of appealability, C.A. Doc. 25, and affirmed, Pet. App. 1a-17a.

Relying on its prior decision in United States v. Keene,

955 F.3d 391, 398-399 (4th Cir. 2020), the court observed

that the VICAR crime requires both proof that the defendant committed the generic federal offense of assault with a dangerous weapon and also that the defendant “violated an independent state or federal law.” Pet.

App. 15a. And the court explained that it could rely on

either requirement to assess whether the charged

VICAR offense qualified as a crime of violence under

Section 924(c). Id. at 15a-16a. The court reasoned that

“[i]f one element of an offense satisfies” Section 924(c)’s

9

elements clause, “it becomes superfluous to inquire

whether other elements likewise meet the requirement.”

Id. at 15a.

The court of appeals recognized that courts may

“look at the underlying state-law predicates” in some

cases (as it had done in the past), but explained that

courts “need not double their work by looking to the underlying predicates” where “the generic federal offense

standing alone can satisfy the crime-of-violence requirements.” Pet. App. 16a. As to this case, the court

found that it “need not progress to the state-law predicates” because the requirement to prove the “generic

federal offense” of assault with a dangerous weapon “is

sufficient in and of itself to render the offense a crime

of violence.” Id. at 15a-16a. The court determined that

“federal assault with a dangerous weapon easily qualifies as a crime of violence,” id. at 15a, in light of precedents “establish[ing] that the inclusion of a dangerousweapon element * * * elevates an assault to a crime of

violence for purposes of § 924(c),” id. at 11a-12a (discussing United States v. Bryant, 949 F.3d 168 (4th Cir.

2020), and United States v. McDaniel, 85 F.4th 176 (4th

Cir. 2023)). And it reasoned, based on VICAR’s own element requiring an enterprise-focused purpose, that

“VICAR assault with a dangerous weapon satisfies Borden’s mens rea requirement because it cannot be committed recklessly,” but instead includes only “deliberate

and purposeful machinations to raise one’s clout in a

criminal enterprise.” Id. at 13a-14a.

ARGUMENT

Petitioner contends (Pet. 13-33) that the court of appeals’ classification of his VICAR offense as a “crime of

violence” under 18 U.S.C. 924(c)(3)(A) should have been

restricted solely to the elements of the state crime

10

underlying the VICAR offense, without any reference

to the additional elements necessary to render the state

crime a federal VICAR offense. The court of appeals

correctly rejected that contention, and despite petitioner’s contrary assertions (Pet. 14-24), the circuits are

not in direct conflict on the question presented. No further review is warranted.

1. The court of appeals correctly recognized that the

crime-of-violence classification under 18 U.S.C.

924(c)(3)(A) was not limited solely to the elements of the

underlying violation of state law, but could instead include

the additional requirements of the VICAR offense—in

particular, the requirement that the crime be “federal

assault with a dangerous weapon.” Pet. App. 15a.

a. The VICAR statute requires proof of both a generic federal offense and a violation of state law or federal statutory law. The VICAR statute applies to anyone who “murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious

bodily 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” “for the purpose of

gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity”

or “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.” 18 U.S.C. 1959(a). The plain statutory

text thus requires both that the conduct be in “violation

of the laws of any State or the United States” and be a

listed crime, such as murder or assault with a dangerous

weapon. Ibid.

Petitioner does not directly dispute that by including

the enumerated offenses without defining those terms,

11

Congress indicated that the conduct at issue must fall

within the generic federal definition of the particular offense. And the structure and language of the VICAR

statute is similar to others that require proof of a generic offense as well as a state or federal offense. In

United States v. Nardello, 393 U.S. 286 (1969), for example, the Court construed the Travel Act, 18 U.S.C.

1952—which defines the prohibited “unlawful activity”

as “extortion, bribery, or arson in violation of the laws

of the State in which committed or of the United

States,” 393 U.S. at 287 & n.1 (quoting 18 U.S.C. 1952(b)

(Supp. III 1967))—to require conduct that meets the generic definition of extortion in addition to violating a

particular state law. Id. at 295-296. And in Scheidler v.

National Org. for Women, Inc., 537 U.S. 393 (2003), the

Court held that the RICO Act’s reference to an “act or

threat involving . . . extortion, . . . which is chargeable

under State law,” id. at 409 (quoting 18 U.S.C. 1961(1)

(Supp. III 2003)), requires proof that “the conduct must

be capable of being generically classified as extortionate” in addition to violating state law, id. at 409-410.

Likewise here, because Section 1959(a)’s text requires proof that a defendant “assault[s] with a dangerous weapon” and does so “ ‘in violation of the laws of any

State or the United States,’ ” the statutory language imposes two separate requirements: (1) that the defendant commits “the generic federal offense” of assault

with a dangerous weapon and (2) that the defendant’s

conduct violates state law or federal statutory law. Pet.

App. 15a-16a (quoting 18 U.S.C. 1959(a)); see United

States v. Keene, 955 F.3d 391, 398-399 (4th Cir. 2020)

(“Congress intended for individuals to be convicted of

VICAR assault with a dangerous weapon by engaging

in conduct that violated both that enumerated federal

12

offense as well as a state law offense.”); cf. United

States v. Adkins, 883 F.3d 1207, 1210-1211 (9th Cir.

2018) (“In the context of VICAR, we have permitted

jury instructions using generic federal definitions,” but

“courts, in certain circumstances, should instruct on the

state definition or otherwise risk prejudice to the defendant.”).

By imposing those two requirements in VICAR, Congress avoided a scenario in which conduct escaped the

statute’s reach simply because it might not have been labeled as, for example, “murder,” “maiming,” or “assault

with a dangerous weapon” by a few states—thereby ensuring a high degree of nationwide uniformity. See

Nardello, 393 U.S. at 293 (rejecting as a “fallacy” the

contention that “by defining extortion with reference to

state law, Congress also incorporated state labels for

particular offenses”). As the Senate Judiciary Committee explained in describing the proposed VICAR statute:

“While section [1959] proscribes murder, kidnaping,

maiming, assault with a dangerous weapon, and assault

resulting in serious bodily injury in violation of federal

or State law, it is intended to apply to these crimes in a

generic sense, whether or not a particular State has

chosen those precise terms for such crimes.” 129 Cong.

Rec. 22883-22884, 22906 (1983).

Because a VICAR offense has two separate requirements that must be satisfied—the generic federal offense as well as a state-law or federal-statutory-law violation—a court may rely on either (or both) to determine whether the VICAR offense constitutes a crime of

violence under Section 924(c)(3). Pet. App. 15a-16a; see

Manners v. United States, 947 F.3d 377, 379-382 (6th

Cir. 2020) (determining that a VICAR offense qualified

as a crime of violence without determining whether a

13

particular predicate state-law offense or federal statutory offense was a crime of violence). Both the genericfederal-offense requirement and the violation-of-law requirement are individually “elements”—or, more specifically, individual sets of elements (the elements of the

generic and state/federal crimes)—that must be satisfied to prove a VICAR offense. Mathis v. United

States, 579 U.S. 500, 504 (2016) (explaining that elements “are what the jury must find beyond a reasonable

doubt to convict the defendant”). And as the court of

appeals correctly reasoned, once a court identifies an element that satisfies Section 924(c)’s elements clause, “it

becomes superfluous to inquire whether other elements

likewise meet the requirement.” Pet. App. 15a.

b. In arguing that a court must instead rely exclusively on the state-law predicate for a VICAR offense in

determining whether that VICAR offense satisfies Section 924(c)(3)’s crime-of-violence definition, petitioner

asserts that such an approach “makes sense, because

the modified categorical approach directs courts to look

to the elements of the crime ‘as charged and instructed,’ ” “or to which the defendant pleaded guilty.”

Pet. 26 (quoting Alvarado-Linares v. United States, 44

F.4th 1334, 1343 (11th Cir. 2022)). But any VICARbased charge inherently includes the elements of the

charged offense, and the indictment here expressly alleged both the generic federal offense of assault with a

dangerous weapon and the underlying predicate based

on Virginia law.

Specifically, Count 3 charged that petitioner “did unlawfully and knowingly assault D.B. with a dangerous

weapon” and did so “in violation of Va. Code Ann.

§§ 18.2-53.1 and 18.2-282.” Pet. App. 107a. By charging

that petitioner “did unlawfully and knowingly assault

14

D.B. with a dangerous weapon” and also that the conduct was “in violation of ” Virginia law, ibid., Count 3

essentially mirrored the VICAR statute and therefore

charged both the generic-federal-offense element as

well as the state-law element.

Petitioner’s guilty plea did not limit the VICAR

charge to the underlying state-law predicates—nor

could it have. A pure state-law crime would not be a

valid Section 924(c) predicate, because it would not be a

“crime of violence * * * for which the person may be

prosecuted in a court of the United States.” 18 U.S.C.

924(c)(1)(A) (emphasis added); see United States v. Davis, 588 U.S. 445, 448 (2019); cf. 18 U.S.C. 924(e)(1) (referring to “convictions by any court referred to in section 922(g)(1) of this title”); Small v. United States, 544

U.S. 385, 387 (2005) (interpreting phrase “convicted in

any court” in 18 U.S.C. 922(g)(1)’s felon-in-possession

ban to encompass all domestic convictions). And here,

petitioner pleaded guilty to the Section 924(c)(3) offense

in “[Count] 4,” for which the indictment in turn referenced Count 3—which, as just explained, referenced the

generic-federal-offense and state-offense requirements. Pet. App. 54a; see id. at 59a, 108a.1 Moreover,

petitioner’s factual statement described his conduct in

committing the assault with a dangerous weapon without

specifically referencing the underlying Virginia statutes.

Id. at 73a-74a.2

1

In addition, to the extent that petitioner’s argument depends on

his characterization of his plea, see Pet. 28-29, the court of appeals

has not yet addressed how that (or any other argument) might be

affected by the standard of review on his procedurally defaulted

claim, see pp. 7-9, supra.

2

Petitioner’s suggestion (Pet. 29) that the court of appeals’ approach calls into question VICAR convictions that lacked jury

15

2. Contrary to petitioner’s claim (Pet. 15-18), the decisions he cites from the Second and Eleventh Circuits

do not directly conflict with the court of appeals’ decision here. None of those decisions limits the court to

assessing the state-law or federal-statutory predicate in

determining whether a VICAR offense qualifies as a

crime of violence.

In several cases, the Second Circuit has concluded

that a particular charged VICAR offense qualified as a

crime of violence under Section 924(c)(3)(A) because the

underlying state-law predicate satisfied the crime-ofviolence definition. See United States v. Pastore, 83

F.4th 113, 119-120 (2023), cert. granted on other grounds

sub nom. Delligatti v. United States, No. 23-825 (June

3, 2024)3; United States v. Davis, 74 F.4th 50, 54-56,

cert. denied, 144 S. Ct. 436 (2023); United States v. Morris, 61 F.4th 311, 319-320 (2023). Those cases are consistent with the court of appeals’ decision here, which

recognizes that a VICAR offense can qualify as a crime

of violence based solely on a consideration of the underlying state-law offense. Pet. App. 16a (noting that the

court has previously relied on a state-law predicate in

particular cases). The Second Circuit did not, in any of

the cases cited by petitioner, hold that a VICAR offense

instructions regarding the generic federal offense is likewise mistaken. As a practical matter, if the relevant state or federalstatutory law is substantially similar to or narrower than the generic definition, the jury may be instructed only as to the state or

federal-statutory offense.

3

In Delligatti, the Court granted a writ of certiorari to consider

whether a VICAR attempted murder offense qualifies as a crime of

violence under Section 924(c)(3)(A) where it rests on a state-law attempted murder crime that can, in theory, be satisfied by an act of

omission. See U.S. Br. at 8, 18, Delligatti, supra (No. 23-825) (acquiescing to petition for certiorari).

16

lacks an additional generic-federal-offense requirement, let alone hold that a court cannot rely on that requirement in classifying a VICAR offense as a crime of

violence.

The Eleventh Circuit’s decision in Alvarado-Linares

v. United States, supra, likewise does not address

whether a court may rely on an element of the generic

federal offense in assessing whether a VICAR conviction is a crime of violence. In that case, the Eleventh

Circuit looked to the state-law element in determining

whether a VICAR murder predicated on Georgia law

qualified as a crime of violence under the elements

clause because, inter alia, the jury instructions defined

the crime by reference to state law. Alvarado-Linares,

44 F.4th at 1342-1343. The Eleventh Circuit then concluded that Georgia malice murder qualifies as a crime

of violence. Id. at 1344. And “[a]ssuming without deciding” that the defendant’s convictions also required

that “the generic federal definition of murder contains

an element of force,” the court further held that “federal murder also meets the definition of a crime of violence.” Id. at 1345. But the Eleventh Circuit explicitly

left open the question whether, in a different case, a

court could rely on “the generic federal definition of

murder” alone to determine whether a VICAR murder

satisfied the force clause. Ibid.4

Petitioner additionally asserts (Pet. 29-31) that the court of appeals erred in concluding that VICAR’s purpose requirement establishes that the use of force in a VICAR offense is committed with a

state of mind more than ordinary recklessness, as required by Borden v. United States, 593 U.S. 420, 429 (2021) (plurality opinion).

That issue, however, is not included in the single question presented

on which petitioner has sought certiorari. See Pet. I; see also Sup.

Ct. R. 14(1)(a) (“Only the questions set out in the petition, or fairly

included therein, will be considered by the Court.”). Nor has

4

17

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

SANGITA K. RAO

Attorney

JULY 2024

petitioner claimed the existence of a circuit conflict on that issue.

And he provides no sound basis for concluding that the issue would

be outcome-determinative in his own case. Even without consideration of the VICAR purpose element, the district court held that

generic federal assault with a dangerous weapon requires a state of

mind greater than ordinary recklessness. Pet. App. 33a-34a; see

Gov’t C.A. Br. 20-23, 28-32.