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
Indictment. ECF No. 5. These motions require the court to
tread down the thorny path of the categorical approach, as
enunciated 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") Act, 18 U.S.C.
§ 1962, Violent Crimes in Aid of Racketeering
("VICAR"), 18 U.S.C. § 1959, and several other
factually related charges. ECF No. 5. 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 Id. at
6 (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 Motel Harris; and (2) the attempted
murder of Justion Wilson and murder of Christopher Motley at
North Hills Court on August 20, 2016.14 at 11-17.
the return of the Indictment, four of the original eight
defendants have entered guilty pleas (Tanasia Lashae Coleman,
ECF No. 187; Demetrius Allen Staten, ECF No. 191; Dashawn
Romeer Anthony, ECF No. 249; and Jermay Smith Jr., ECF No.
365). 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 15 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, and
2. VICAR Assault with a Dangerous Weapon (Counts 4, 8, and
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, and 15).
31, 2019, the government filed a Motion to Dismiss Counts 5,
9, and 15 without prejudice. ECF No. 353. Counts 5, 9, and 15
charge use of a firearm during an assault with a dangerous
weapon. The government's motion is
GRANTED and Counts 5, 9, and 15 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 Or. 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. 2015)).
Simms, the Fourth Circuit declared the 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 die "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 § 924(c)(1)(A) for using, carrying, brandishing,
or discharging a firearm during or in relation to the
determine if VICAR murder and VICAR attempted murder are
crimes of violence under § 924(c)(3)(A), courts have
taken different analytical approaches. Some courts assess
whether the VICAR predicate offenses, here murder and
attempted murder, constitute crimes of violence by using a
generic, federal definition of die crime. See United
States v. Jones, No. 7:16-cr-30026, 2017 WL 3725636, at
*5 (W.D. Va. 2017). and Cousins v. United States.,
198 F.Supp.3d 621, 626 (E.D. Va. 2016) (both looking to a
federal generic definition of an offense to determine if it
is a viable VICAR predicate). The Fourth Circuit has held
that generic, federal murder is a crime of violence for
§ 924(c)(3)(A) purposes. In re Irby, 858 F.3d
231, 237 (4th Cir. 2017) ("Common sense dictates that
murder is categorically a crime of violence under the force
clause. ... It is absurd to believe that Congress would have
intended poisoners and people who use their wits to place
someone in the path of an inevitable force to avoid the force
clause of § 924(c)."). As such, under this
analytical approach, VICAR murder and VICAR attempted murder
are crimes of violence under the elements clause of §
courts have looked beyond the generic definition of the
enumerated VICAR offense to the elements of the crime, state
or federal, underlying the VICAR charge. Here, those crimes
are Virginia murder and attempted murder, as defined in Va.
Code §§ 18.2-32 and 18.2-26. Defendants advocate
this approach, arguing that at least one method of murder
proscribed by the Virginia statute, murder by starving, does
not require the use of force.
degree murder in Virginia is "murder, other than capital
murder, by poison, lying in wait, imprisonment, starving, or
by any willful, deliberate, and premeditated killing, or in
the commission of, or attempt to commit, arson, rape,
forcible sodomy, inanimate or animate object sexual
penetration, robbery, burglary, or abduction." Va. Code
§ 18.2-32. "In the context of attempted murder, the
evidence must show 'specific intent to kill the
victim/" along with an overt act that falls short of the
completion of the killing. Secret v. Commonwealth,
296 Va. 204, 225, 819 S.E.2d 234, 248 (2018) (quoting
Commonwealth v. Herring,288 Va. 59, 77, 758 S.E.2d
225, 235 (2014)). The overt act "need not. . . be the
last proximate act to the consummation ...