United States District Court, W.D. Virginia, Danville Division
Michael F. Urbanski, Chief United States District Judge
matter comes before the court on a number of motions by
defendants to dismiss and/or merge certain counts of the
First Superseding Indictment. ECF No. 207. These motions
require the court to tread down the thorny path of the
categorical approach, again addressed by the Supreme Court of
the United States as recently as June 24, 2019 in United
States v. Davis, No. 18-431 June 24, 2019).
multi-defendant, multi-count RICO prosecution began on June
11, 2018 when a federal grand jury issued two indictments
bringing charges against members of the Rollin 60s Crips
street gang, the Milla Bloods street gang, and gang
associates on violations of the Racketeer Influenced and
Corrupt Organizations ("RICO") statute, 18 U.S.C.
§ 1962, Violent Crimes in Aid of Racketeering
('VICAR") statute, 18 U.S.C. § 1959, and
several other factually related charges. ECF No. 1; ECF No.
207. These cases are captioned United States v. Davis et
al., 4:18-cr-11 (bringing charges against members of the
Rollin 60s Crips and associates) and United States v.
Anthony et al., 4:18-cr-12 (bringing charges against
members of the Milla Bloods street gang and
associates). The United States alleges that, in the
summer of 2016, members of the Rollin 60s and Milla Bloods
collaborated to facilitate criminal activities in the
Danville, Virginia area. See ECF No. 207 (describing alleged
racketeering conspiracy). This collaboration resulted in (1)
the attempted murders of the "Philly Boys" at North
Hills Court on June 15, 2016, resulting in the assault and
attempted murder of Armonti Womack and Dwight Harris; (2) the
attempted murder of Justion Wilson and murder of Christopher
Motley at Norm Hills Court on August 20, 2016; and (3) the
attempted Murder of Tyliek Conway on August 24, 2016.
the return of the First Superseding Indictment, four of the
original twelve defendants have entered guilty pleas (Matthew
Ferguson, ECF No. 226; Jaquan Trent, ECF No. 369; Laquante
Tarvares Adams, ECF No. 378; and Shanicqua Coleman, ECF No.
435). The remaining defendants have filed a series of motions
to dismiss, challenging counts alleging violation of 18
U.S.C. §§ 924(c), 924(j), and 1959. The government
has responded, argument was held in June 8, 2019, and the
issue is ripe for consideration.
overview, the indictment in this gang case charges in Count 1
a RICO conspiracy and in Counts 2 through 19 various violent
crimes associated with three shootings in Danville, Virginia
in the summer of 2016. As to each shooting, three categories of
federal crimes are alleged:
1. VICAR Murder or Attempted Murder (Counts 2, 6,
10, 12 and 16);
2. VICAR Assault with a Dangerous Weapon (Counts 4, 8, 14,
3. Use of a Firearm During a VICAR crime, Murder, Attempted
Murder, and Assault with a Dangerous Weapon (Counts 3, 5, 7,
9, 11, 13, 15, 17 and 19).
31, 2019, the government filed a Motion to Dismiss Counts 5,
9, 15, and 19 without prejudice. ECF No. 490. Counts 5, 9,
15, and 19 charge Use of a Firearm During VICAR Assault with
a Dangerous Weapon. The government's motion is
GRANTED and Counts 5, 9, 15, and 19 are
are two principal issues surrounding the remaining motions to
dismiss: (1) whether counts charging violations of 18 U.S.C.
§ 924(c) predicated on murder or attempted murder should
be dismissed because "murder," as defined by
Virginia Code § 18.2-32, categorically speaking,
criminalizes conduct that is broader than that covered by 18
U.S.C. § 924(c)(3)(A); and (2) whether the VICAR assault
with a dangerous weapon counts must be dismissed because the
underlying Virginia brandishing statute, Va. Code §
18.2-282, sweeps too broadly to serve as a VICAR predicate.
court first examines 18 U.S.C. § 924(c), as predicated
on Va. Code 18.2-32.
U.S.C. § 924(c) provides that "any person who,
during and in relation to any crime of violence or drug
trafficking crime . . . uses or carries a firearm, or who, in
furtherance of such crime, possesses a firearm" shall be
sentenced to a five-year minimum term of imprisonment
"in addition to the punishment provided for such crime
of violence or drug trafficking crime." 18 U.S.C. §
924(c)(3)(A). The statute defines a crime of violence as
"an offense that is a felony" and
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves such a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
the above clauses provides a different basis for determining
whether a crime is a crime of violence. Section 924(c)(3)(A)
has been variously referred to as the "force
clause," "use-of- force clause," or
"elements clause." Section 924(c)(3)(B) is known as
the "residual clause."
elements clause requires courts to use the categorical
approach to determine "whether the statutory elements of
the offense necessarily require the use, attempted use, or
threatened use of force." United States v.
Simms. 914 F.3d 229, 233 (4th Cir. 2019). In conducting
this analysis, the court must "focus on the minimum
conduct required to sustain a conviction for the state
crime." United States v. Doctor, 842 F.3d 306,
308 (4th Cir. 2016): Thus, if the minimum conduct necessary
for a violation of the statute does not constitute a crime of
violence, then the statute categorically fails to qualify as
a crime of violence. United States v.
Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (quoting
Castillo v. Holder, 776 F.3d 262, 267 (4th Cir.
Simms. the Fourth Circuit declared die residual
clause of § 924(c)(3)(B) unconstitutionally vague, as
other residual clauses with almost identical language in a
variety of other statutes had likewise been declared, because
it required courts ask whether the "ordinary case"
of the offense posed the requisite "substantial risk
that physical force against the person or property may be
used" without providing any guidance on how to determine
the crime's ordinary case. 914 F.3d at 236-37. The
Supreme Court's recent opinion in Davis closes
the door on the viability of § 924(c)'s residual
Simms and Davis, the criminal conduct at
hand must be analyzed under the elements clause of §
924(c)(3)(A) to determine if it constitutes a crime of
violence. Considered genetically,  if the elements of the
underlying offense do not require the use, attempted use, or
threatened use of physical force under the elements clause of
§ 924(c)(3)(A), there can be no separate conviction
under § ...