United States v. Davis, No. 21-1486 (2d Cir. 2023)
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Defendant appealed from the district court’s judgment of conviction after a jury found him guilty of racketeering conspiracy (Count One); murder in aid of racketeering (Count Two); and using a firearm during and in relation to a crime of violence (Count Three). Defendant argued that his Count Three conviction must be vacated because his predicate offense of murder in aid of racketeering was not a crime of violence.
The Second Circuit affirmed. The court rejected Defendant’s contention that the VICAR murder statute is indivisible and held that the modified categorical approach applies to the court’s consideration of whether his conviction for murder in aid of racketeering, a substantive VICAR offense, constitutes a crime of violence for purposes of Section 924(c). The court explained that first-degree manslaughter, regardless of whether it may be completed by commission or omission, “can only be committed by a defendant who causes death—the ultimate bodily injury—while intending to cause at least serious physical injury,” necessarily requiring the use of physical force. The court wrote that to hold otherwise would preclude courts from recognizing even intentional murder as a categorically violent crime, an untenable consequence.
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