United States v. Keene, No. 19-4609 (4th Cir. 2020)
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Defendants were charged under 18 U.S.C. 1959, which imposes criminal penalties for committing "violent crimes in aid of racketeering activity" (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.
The Fourth Circuit held that the portion of the VICAR statute under which defendants were charged is not subject to analysis under the categorical approach. The court explained that, unlike the 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. The court held that 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. Accordingly, the court reversed and remanded for the district court to reinstate the dismissed VICAR charges alleging Virginia brandishing.
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