United States v. Keene

955 F.3d 391

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, Fourth Circuit.

Argued: January 31, 2020

Decided: April 9, 2020

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, United 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.

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.

BARBARA MILANO KEENAN, Circuit Judge:

This appeal requires us to interpret the text of 18 U.S.C. § 1959, which imposes criminal penalties for committing "violent crimes in aid of racketeering activity" (the VICAR statute). The VICAR statute defines prohibited conduct by reference to enumerated federal offenses, but also requires that the conduct be "in violation of the laws of any State or the United States." 18 U.S.C. § 1959. Relevant to this appeal, the defendants were charged under the VICAR statute in three counts with the enumerated federal offense of committing assault with a dangerous weapon, in violation of the Virginia prohibition against brandishing a firearm set forth in Virginia Code § 18.2-282 (Virginia brandishing).

Because 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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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 of the defendants’ actual conduct. In accord with the parties’ agreed view, the district court did not consider the defendants’ conduct but instead applied the categorical approach. The court concluded that Virginia brandishing was broader than the enumerated federal offense of assault with a dangerous weapon, and dismissed the three VICAR counts at issue.

Upon our review, we conclude that the portion of the VICAR statute before us is not subject to analysis under the categorical 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 conduct , 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 18 U.S.C. § 1959 (the VICAR-brandishing counts).¹ Those counts contained allegations that the defendants violated the VICAR statute by assaulting three victims with a dangerous weapon, which acts also violated the Virginia brandishing statute, Virginia Code § 18.2-282. The indictment further alleged that the defendants committed these assaults by shooting or shooting at the victims with a firearm.

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 as 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 , ––– U.S. ––––, 139 S. Ct. 2319, 2327, 204 L.Ed.2d 757 (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).

The VICAR statute provides in relevant part:

(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 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 ,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.

18 U.S.C. § 1959 (emphasis added).

The VICAR statute complements the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961 through 1968, by addressing the "particular danger posed by those ... who are willing to commit violent crimes in order to bolster their positions within [racketeering] enterprises." United States v. Ayala , 601 F.3d 256, 266 (4th Cir. 2010). Accordingly, to establish that a defendant violated the VICAR statute, the government must prove: (1) the existence of a RICO enterprise; (2) that the enterprise was engaged in racketeering activity; (3) that the defendant "had a position in the enterprise;" (4) that the defendant committed one of the crimes specified in the VICAR statute, here, assault with a dangerous weapon, also constituting Virginia brandishing; and (5) that the defendant’s purpose was "to maintain or increase his position in the enterprise." United States v. Zelaya , 908 F.3d 920, 926-27 (4th Cir. 2018) (citation and internal quotation marks omitted). The only element at issue in this appeal is the fourth element.

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 government 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 its current argument before the district court. The inconsistency of advocating one position in the district court, and of reversing course on appeal, reflects poorly on the government in this case. Nevertheless, engaging in our required de novo review of the statutory language, we agree that the categorical approach does not apply to the relevant language in the VICAR statute.

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...