United States v. Darren Morris, No. 16-6 (2d Cir. 2023)
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Defendant s pled guilty to (1) using, carrying, and possessing a firearm during an attempted armed robbery of suspected marijuana dealers (“Count One”); and (2) using, carrying, possessing, and discharging a firearm during an assault in aid of racketeering of an individual whom Defendant shot and killed (“Count Two”). Both Counts were violations of 18 U.S.C. Section 924(c)(1)(A), which requires that a defendant use, carry, or possess a firearm “during and in relation to” or “in furtherance of,” as relevant here, a “crime of violence.” To sustain Defendant’s Section 924(c) convictions, each Count must contain a predicate “crime of violence.” Defendant appealed from the judgment sentencing him principally to 360-months’ imprisonment. He argued that neither count contains a predicate “crime of violence” necessary to sustain his Section 924(c) convictions.
The Second Circuit held Defendant’s Section 924(c) conviction on Count One is vacated because attempted Hobbs Act robbery is not a valid predicate crime of violence that would support a conviction under Section 924(c). Defendant’s Section 924(c) conviction on Count Two is sustained because, after applying the modified categorical approach prescribed by the Supreme Court, the court concluded that the predicate crime of violence—VICAR assault with a dangerous weapon premised on a violation of N.Y. Penal Law Section 120.05(2) and perhaps also N.Y. Penal Law Section 120.10(1)—qualifies as a crime of violence that supports a conviction under Section 924(c).
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