United States v. Manley

• Docket Number: 20-6812
• Decision Date: 26 October 2022
• Citation: 52 F.4th 143
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Martin Jay MANLEY, a/k/a Buck, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

52 F.4th 143

UNITED STATES of America, Plaintiff - Appellee,

v.Martin Jay MANLEY, a/k/a Buck, Defendant - Appellant.

No. 20-6812

United States Court of Appeals, Fourth Circuit.

Argued: September 14, 2022

Decided: October 26, 2022

ARGUED: Jacob Smith, Holly Chaisson, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Jacqueline Romy Bechara, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: J. Scott Ballenger, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Raj Parekh, Acting United States Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion for the court in Parts I, II, and IV, in which Judge Diaz and Judge Quattlebaum concurred. Judge Niemeyer wrote an opinion in Part III.

NIEMEYER, Circuit Judge, wrote the opinion for the court in Parts I, II, and IV, and wrote an opinion in Part III:

The issue presented in this appeal is whether offenses under 18 U.S.C. § 1959 (violent crimes in aid of racketeering activity, commonly referred to as "VICAR") — in particular, VICAR assault and VICAR murder — must be committed with a sufficiently culpable mens rea to amount to "crime[s] of violence," as necessary for conviction under 18 U.S.C. § 924(c). The VICAR statute punishes certain crimes committed in aid of racketeering activity, including (1) assault with a dangerous weapon or resulting in serious bodily injury under state or federal law and (2) murder under state or federal law. Id. § 1959(a)(1), (3). While the Supreme Court recently held in Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021), that a crime with a mens rea of "recklessness" cannot qualify as a "violent felony" under 18 U.S.C. § 924(e), which is materially similar to a "crime of violence" in § 924(c)(3), we hold that the elements of both VICAR assault and VICAR murder in this case include a mens rea more culpable than mere recklessness and that the mens rea of both VICAR crimes satisfies the mens rea element of a "crime of violence" in § 924(c). Accordingly, we affirm the district court's judgment reaching the same result but for different reasons.

I

Martin Manley, a member of the street gang in Newport News, Virginia, known as the "Dump Squad," was charged in 2009 with counts of racketeering conspiracy, drug conspiracy, conspiracy to interfere with and interference with commerce by robbery, using a firearm during and in relation to a crime of violence, assault with a dangerous weapon in aid of racketeering activity, maiming in aid of racketeering activity, murder in aid of racketeering activity, and using a firearm causing death. Later in 2009, he pleaded guilty to Count 1, charging him with racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) ; Count 25, charging him with the use of a firearm during and in relation to a crime of violence, in violation of § 924(c) ; and Count 35, charging him with the use of a firearm during and in relation to a crime of violence causing death, in violation of § 924(c), (j).

Following the Supreme Court's decision in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), Manley filed a motion under 28 U.S.C. § 2255 to vacate his two convictions for violation of § 924(c) (Counts 25 and 35), contending that the predicate offenses alleged for those violations were no longer "crimes of violence," as defined by § 924(c)(3). Davis held that the "residual clause" defining a crime of violence in § 924(c)(3)(B) was unconstitutionally vague but left standing the "elements clause" definition in § 924(c)(3)(A). Manley contended that his § 924(c) convictions relied on conspiracy to engage in racketeering as charged in Count 1, which, he argued, was not a crime of violence because it satisfied only the invalidated residual clause and that therefore his convictions on Counts 25 and 35 were no longer valid.

The district court denied Manley's § 2255 motion, noting that while the residual clause had indeed been held to be unconstitutionally vague, the elements clause "remain[ed] constitutionally valid." Rejecting Manley's contention that his two 924(c) convictions were premised on racketeering conspiracy as charged in Count 1, the court held that the predicate offense for Manley's conviction on Count 25 was "assault with a dangerous weapon in aid of racketeering activity," in violation of 18 U.S.C. § 1959(a)(3), as alleged in Count 24, which remained a crime of violence under the elements clause. It also held that the predicate offense for Manley's conviction on Count 35 was "murder in aid of racketeering activity," in violation of 18 U.S.C. § 1959(a)(1), as alleged in Count 34, which also remained a crime of violence under the elements clause.

While Manley's appeal from the district court's order denying his § 2255 motion was pending, the Supreme Court handed down its decision in Borden , which held that offenses that can be committed with a mens rea of recklessness are not "violent felonies." 141 S. Ct. at 1821–22, 1825 (plurality opinion); id. at 1835 (Thomas, J., concurring). Manley now argues that the predicate offenses for his § 924(c) convictions in both Counts 25 and 35 can be committed with a mens rea of recklessness and that therefore they are, by reason of Borden , no longer crimes of violence that can support his convictions under § 924(c).

II

Section 924(c), the offense of which Manley was convicted on both Counts 25 and 35, provides:

[A]ny person who, during and in relation to any crime of violence ... uses or carries a firearm ... shall [be punished].

18 U.S.C. § 924(c)(1)(A) (emphasis added). And "crime of violence" is defined in the elements clause as "an offense that is a felony and ... has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Id. § 924(c)(3)(A) (emphasis added).

Here, the predicate crime of violence alleged in Count 25 was assault with a dangerous weapon in aid of racketeering activity ("VICAR assault"), in violation of 18 U.S.C. § 1959(a)(3), "as set forth in Count Twenty-four of [the] Indictment." And Count 24 charged Manley with committing VICAR assault by "knowingly, intentionally and unlawfully assault[ing]" a rival gang member "with a dangerous weapon, which resulted in serious bodily injury to [the rival gang member], in violation of Va. Code Ann. § 18.2-51 [unlawful wounding], for the purpose of gaining entrance to and maintaining and increasing position in an Enterprise engaged in racketeering activity." The crime of violence alleged in Count 35 was murder in aid of racketeering activity ("VICAR murder"), in violation of 18 U.S.C. § 1959(a)(1), "as set forth in Count Thirty-four of [the] Indictment." And Count 34 charged Manley with committing VICAR murder by "knowingly, willfully, and unlawfully caus[ing] the murder of Tony Vaughn in violation of Va. Code Ann. § 18.2-32 [first and second-degree murder], for the purpose of gaining entrance to and maintaining and increasing position in an Enterprise engaged in racketeering activity."

The issue before us is the question of law whether the offenses charged in Counts 24 and 34 — which were incorporated into Counts 25 and 35, purportedly as crimes of violence — required a mens rea more culpable than mere recklessness so as to actually qualify as "crime[s] of violence" following Borden . We address each crime in order.

A

The offense charged in Count 24 and incorporated into Count 25 purportedly as a "crime of violence" was a violation of VICAR assault ( § 1959(a)(3) ), premised on the state offense of unlawful wounding in violation of Virginia Code § 18.2-51. The elements necessary for a conviction of VICAR assault are (1) that there be an "enterprise," as defined in § 1959(b)(2) ; (2) that the enterprise be engaged in "racketeering activity," as defined in 18 U.S.C. § 1961 ; (3) that the defendant have committed an assault "with a dangerous weapon" or "resulting in serious bodily injury"; (4) that the assault have violated state or federal law; and (5) that the assault have been committed for a designated pecuniary purpose or "for the purpose of gaining entrance to or maintaining or increasing position in [the] enterprise." 18 U.S.C. § 1959(a)(3) ; see also United States v. Zelaya , 908 F.3d 920, 926–27 (4th Cir. 2018) ; United States v. Fiel , 35 F.3d 997, 1003 (4th Cir. 1994). And the minimum elements necessary for proving the state assault offense alleged in Count 24 are that the person (1) "unlawfully" (2) cause a person bodily injury (3) "with the intent to maim, disfigure, disable, or kill." Va. Code Ann. § 18.2-51.

Manley's guilty plea to Count 25, therefore, confessed that each element of the crime alleged in Count 24 was satisfied, and thus those elements may be considered to determine whether the offense qualified as a crime of violence for purposes of § 924(c). Of course, if the mens rea element can, as a matter of law, be satisfied with a mental state of recklessness or negligence, the offense is not a crime of violence. See Borden , 141 S. Ct. at 1821–22, 25 (plurality opinion) (explaining that offenses with a mens rea of ordinary recklessness are not violent felonies); Leocal v. Ashcroft , 543 U.S. 1, 9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (holding that offenses with a mens rea of negligence are not crimes of violence). But if the elements of a crime "demand[ ]" that the person have "direct[ed] his action at, or target[ed], another individual," the action is more purposeful and satisfies the mens rea requirement necessary for an offense to qualify as a crime of violence. Borden , 141 S. Ct. at 1825 (plurality opinion).

We have held specifically that the unlawful wounding...