United States v. Dearnta Thomas

87 F.4th 267

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 29, 2023
• Docket: 21-7257
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-7257

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DEARNTA LAVON THOMAS, a/k/a Bloody Razor,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, Senior District Judge. (2:11-cr-00058-RAJ-FBS-1; 2:21- cv-00147-RAJ)

Argued: October 24, 2023 Decided: November 29, 2023

Before WILKINSON, AGEE, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Agee and Judge Richardson joined.

ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Jessica D. Aber, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. USCA4 Appeal: 21-7257 Doc: 57 Filed: 11/29/2023 Pg: 2 of 14

WILKINSON, Circuit Judge:

Dearnta Lavon Thomas pleaded guilty in 2011 to possessing a firearm in furtherance

of a “crime of violence” in violation of 18 U.S.C. § 924(c), with the underlying crime of

violence being VICAR assault with a dangerous weapon. Since his conviction, the

Supreme Court has narrowed the kinds of crimes that can support a § 924(c) conviction.

We must decide whether VICAR assault with a dangerous weapon is still one of them.

Because we find that VICAR assault with a dangerous weapon remains a valid crime-of-

violence predicate, we uphold Thomas’s conviction.

I.

A.

Thomas was a founding member and “three-star general” of a street gang known as

the Bounty Hunter Bloods/Nine Tech Gangsters. The gang sold drugs and engaged in

violence around Southeast Virginia for almost eight years, until the United States Attorney

for the Eastern District of Virginia took action in 2011. The resulting indictment charged

eleven gang members with fifty-nine counts of firearm, drug, and racketeering offenses.

For his part, Thomas—who went by the nickname “Bloody Razor”—was charged

with racketeering under 18 U.S.C. § 1962(c), violent crimes in aid of racketeering activity

(VICAR) under 18 U.S.C. § 1959(a), possessing a firearm in furtherance of a crime of

violence under 18 U.S.C. § 924(c), possessing a firearm as a felon under § 18 U.S.C.

§ 922(g); and racketeering and drug conspiracy under 18 U.S.C. § 1962(d) and 21 U.S.C.

§ 846. Soon after the indictment, he pleaded guilty to a substantive racketeering offense

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and, pertinent to this appeal, to possessing a firearm in furtherance of a crime of violence

under 18 U.S.C. § 924(c).

Thomas was sentenced to 60 months in prison for his racketeering conviction and

the mandatory minimum of 120 months for his conviction under § 924(c). Though he did

not directly appeal his conviction or his sentence, he has since filed several collateral 18

U.S.C. § 2255 motions to vacate his § 924(c) conviction in light of changes in the law.

B.

In 2011, when Thomas pleaded guilty to violating § 924(c), the term “crime of

violence” was defined as a felony that:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) . . . by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). Subsection (A) was commonly referred to as the “force” or

“elements clause” and subsection (B) as the “residual clause,” and felonies could qualify

under either subsection. But in the years following Thomas’s conviction, the Supreme

Court decided a line of cases that would eventually narrow the class of offenses that could

serve as predicate crimes of violence for a § 924(c) conviction, first by invalidating the

residual clause and then by establishing a heightened mens rea for the remaining force

clause.

In 2015, the Supreme Court began to take issue with residual clauses such as the

one in § 924(c). It started with the Armed Career Criminal Act, which provides enhanced

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punishment for repeat offenders of certain crimes. That Act included a force clause and

residual clause quite similar to those in § 924(c). See 18 U.S.C. § 924(e)(2)(B). In Johnson

v. United States, 576 U.S. 591 (2015), the Supreme Court invalidated the residual clause

of the Act’s definition of “violent felony” as unconstitutionally vague. Id. at 606. Three

years later, in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), the Supreme Court relied on

Johnson to invalidate the residual clause of the general federal “crime of violence”

definition as well. Id. at 1223.

The Supreme Court then turned to the statute at issue here. In United States v. Davis,

139 S. Ct. 2319 (2019), the Supreme Court extended Johnson and Dimaya to invalidate the

residual clause of § 924(c)’s “crime of violence” definition. Id. at 2336. After Davis, crimes

can only qualify as § 924(c) predicates if they satisfy the force clause.

Finally, in Borden v. United States, 141 S. Ct. 1817 (2021) (plurality opinion), the

Court held that to qualify as a “violent felony” for purposes of the Armed Career Criminal

Act, an offense must have a mens rea greater than recklessness. See id. at 1821–22, 1825;

id. at 1835 (Thomas, J., concurring). We have since held that this mens rea requirement

also applies to crimes of violence under § 924(c). See United States v. Jackson, 32 F.4th

278, 283 & n.4 (4th Cir. 2022), cert. denied, 143 S. Ct. 1026 (2023).

As it stands now, to qualify as a crime of violence under § 924(c), an offense must

“ha[ve] as an element the use, attempted use, or threatened use of physical force against

the person or property of another” and that force must be applied with a mens rea greater

than recklessness. Both of these things are necessary.

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C.

This evolving crime-of-violence jurisprudence led Dearnta Lavon Thomas to file a

series of § 2255 motions to vacate his § 924(c) conviction for lack of a valid crime-of-

violence predicate.

Thomas filed his first § 2255 motion in 2018 based on the Supreme Court’s decision

in Dimaya. The district court denied the motion as untimely after noting that the rule

applied in Dimaya had been set forth in Johnson three years earlier and that § 2255 motions

must be filed within one year of “the date on which the right asserted was initially

recognized by the Supreme Court.” 28 U.S.C. § 2255(f)(3). Thomas sought authorization

to file a second § 2255 motion soon after, though there had been no other changes in the

law. That request we summarily denied.

But then came Davis. Thomas timely applied to file a successive § 2255 motion

arguing that, after Davis, his § 924(c) conviction no longer rested on a valid crime of

violence. In considering his request, we held that Davis applied retroactively to cases on

collateral review and found that Thomas had stated a plausible claim that Davis’s holding

required a different outcome in his case. In re Thomas, 988 F.3d 783, 792 (4th Cir. 2021).

We thus authorized Thomas to file a Davis-based § 2255 motion with the district court.

In that post-Davis motion, Thomas argued that his § 924(c) conviction had to be

vacated because the predicate crime underlying his conviction—VICAR assault with a

dangerous weapon—could not satisfy the statute’s force clause. He argued that because the

VICAR offense was itself predicated on underlying Virginia firearm offenses, the court had

to look through the VICAR offense to determine whether those predicate offenses met the

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narrowed crime-of-violence definition. In other words, he argued that VICAR assault with

a dangerous weapon can be a crime of violence only if its predicates are crimes of violence.

The predicate Virginia firearm offenses at issue here, he claimed, were not.

The district court was not persuaded. It determined that the appropriate offense to

analyze as the predicate for the challenged § 924(c) conviction was the VICAR offense

itself, not the underlying state-law offenses. Thomas v. United States, 2021 WL 3493493,

at *6 (E.D. Va. Aug. 9, 2021). The court then concluded that VICAR assault with a

dangerous weapon remained a valid a crime-of-violence predicate and denied Thomas’s

motion. Id. at *6–7.

Thomas appealed the denial, noting that since filing his motion the Supreme Court

had issued Borden, further limiting the crimes that can serve as predicates for § 924(c)

convictions. We granted a certificate of appealability to answer two questions: (1) What is

the proper analytical framework for determining whether VICAR assault with a dangerous

weapon qualifies as a crime of violence under § 924(c)? And (2) did the predicate offense

underlying Thomas’s § 924(c) conviction still qualify? We review both questions de novo.

See United States v. Keene, 955 F.3d 391, 393 (4th Cir. 2020) (reviewing de novo whether

the VICAR statute requires a “look through” approach); United States v. Bryant, 949 F.3d

168, 172 (4th Cir. 2020) (reviewing de novo whether an offense qualified as a crime of

violence).

II.

Thomas claims that his § 924(c) conviction must be vacated for lack of a valid

crime-of-violence predicate. We disagree. The Supreme Court may have narrowed the

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definition of “crime of violence” considerably, but VICAR assault with a dangerous

weapon still easily qualifies. We see no need to “look through” the offense to its state-law

predicates. For these reasons, we affirm the conviction.

Thomas’s § 924(c) conviction cannot stand without a valid crime-of-violence

predicate to support it. But before we can decide whether the predicate offense underlying

Thomas’s conviction qualifies as a crime of violence, we need to determine with precision

what the predicate offense is. We thus begin by establishing that Thomas’s § 924(c)

conviction was predicated on VICAR assault with a dangerous weapon. We then hold that

VICAR assault with a dangerous weapon satisfies both the force clause and Borden’s mens

rea requirement.

1.

Thomas’s § 924(c) conviction was predicated on 18 U.S.C. § 1959(a), which sets

forth a series of VICAR offenses ranging from threats to murder. Where, as here, the

predicate statute sets forth multiple, alternative versions of a crime with distinct elements,

we look to “the indictment, jury instructions, or plea agreement” to determine “which of

the statute’s alternative elements formed the basis of the defendant’s prior conviction.”

Bryant, 949 F.3d at 173.

Thomas’s plea agreement and the indictment reveal that the appropriate § 924(c)

predicate here is VICAR assault with a dangerous weapon as laid out in § 1959(a)(3).

Thomas was convicted under § 924(c) after pleading guilty to Count Four of the

indictment. Count Four charged Thomas with “Possession of a Firearm in Furtherance of

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a Violent Crime” in violation of 18 U.S.C. § 924(c)(l)(A) and § 18 U.S.C. § 2 (aiding and

abetting), and alleged that he “did unlawfully and knowingly possess, brandish, and

discharge a firearm, and did aid, abet, counsel, command, induce, and procure the

commission of said offense, in furtherance of a crime of violence . . . to wit: violation of

Title 18, United States Code, Section 1959, as set forth and charged in Count Three.” J.A.

37 (emphasis added). Count Three in turn charged Thomas with “Assault with a Dangerous

Weapon in Aid of Racketeering Activity” under the VICAR statute, 18 U.S.C. § 1959(a)(3)

and 18 U.S.C. § 2, for his role in a failed robbery. J.A. 36–37.

Counts Three and Four, read together, make it clear that the predicate supporting

Thomas’s § 924(c) conviction was VICAR assault with a dangerous weapon.

2.

We thus turn to whether VICAR assault with a deadly weapon continues to qualify

as a crime of violence under the force clause. To determine whether an offense qualifies as

a “crime of violence” under the force clause, we use the categorical approach. United States

v. Simms, 914 F.3d 229, 233 (4th Cir. 2019) (en banc). That is, we “look to whether the

statutory elements of the offense necessarily require the use, attempted use, or threatened

use of physical force.” Id. Here, “‘physical force’ means violent force—that is, force

capable of causing physical pain or injury to another person.” Johnson v. United States,

559 U.S. 133, 140 (2010). Our precedents establish that VICAR assault with a dangerous

weapon satisfies this standard.

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The VICAR statute was added to the criminal code in Congress’s Comprehensive

Crime Control Act of 1984, Pub. L. No. 98-473, Ch. X, Part A (Oct. 12, 1984). It stipulates

the appropriate punishment for anyone who

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 . . . assaults with a dangerous weapon . . . any individual . . . in violation of the laws of any State or the United States . . . .

18 U.S.C. § 1959(a). Thus, the elements necessary for a conviction of VICAR assault with

a dangerous weapon are: (1) that there exists a racketeering “enterprise”; (2) that the

enterprise be engaged in “racketeering activity”; (3) that the defendant have committed an

assault “with a dangerous weapon”; (4) that the assault have violated state or federal law;

and (5) that the assault have been committed for a racketeering “purpose.” United States v.

Manley, 52 F.4th 143, 147 (4th Cir. 2022), cert. denied, 143 S. Ct. 2436 (2023).

Importantly, by pleading guilty to the § 924(c) offense charged in Count Four of the

indictment, Thomas necessarily admitted each of these elements making up the predicate

VICAR offense charged in Count Three. See id.

Our precedents establish that the inclusion of a dangerous-weapon element, like

element three above, elevates an assault to a crime of violence for purposes of § 924(c). In

United States v. Bryant, 949 F.3d 168 (4th Cir. 2020), we held that an “additional life-in-

jeopardy-with-a-dangerous-weapon element transform[ed] . . . an assault into a crime of

violence under the force clause.” Id. at 180. There, the statute under consideration was 18

U.S.C. § 2114(a), which criminalizes assault with the “intent to rob, steal, or purloin”

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property of the United States and provides enhanced punishment where the defendant puts

a victim’s “life in jeopardy by the use of a dangerous weapon.” We reasoned that “[b]ecause

assault requires at least some use or threatened use of force, . . . the ‘use of a dangerous

weapon to put the victim’s life in jeopardy transforms the force into violent physical

force.’” Bryant, 949 F.3d. at 181.

We recently applied our reasoning in Bryant to 18 U.S.C. § 111(b), which

criminalizes assaults on certain federal officers and provides an enhanced punishment

where the defendant “uses a deadly or dangerous weapon” in doing so. We held that

“[b]ecause § 111(b) requires the use of a dangerous weapon—that is, an instrumentality

used or threatened to be used in a manner to cause death or serious injury—and because

§ 111(a) requires that at least some force be used, the required level of force referenced by

§ 111(b) is violent force.” United States v. McDaniel, — F.4th —, 2023 WL 6934544, at

*8 (4th Cir. Oct. 20, 2023).

The considerations here are no different from those in McDaniel and Bryant. Indeed,

the Sixth Circuit has come to the same conclusion. See Manners v. United States, 947 F.3d

377, 381–82 (6th Cir. 2020) (holding that precedents finding that § 2114(a) and § 111(b)

satisfy the force clause were binding on the question of whether § 1959(a) VICAR assault

with a dangerous weapon does as well). Like § 2114(a) and § 111(b), every VICAR assault

with a dangerous weapon requires (1) an assault and (2) the presence of a dangerous

weapon in its commission. See 18 U.S.C. § 1959(a). In light of Bryant and McDaniel,

Thomas “cannot avoid the conclusion that the dangerous weapon element of § 1959(a)(3)

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elevate[s] even the most minimal type of assault into violent force sufficient to establish

this offense as a crime of violence.” Manners, 947 F.3d at 382.

3.

In addition to satisfying the force clause, VICAR assault with a dangerous weapon

satisfies Borden’s mens rea requirement because it cannot be committed recklessly. See

Borden, 141 S. Ct. at 1825, 1828.

The VICAR statute complements the Racketeer Influenced and Corrupt

Organizations Act, 18 U.S.C. §§ 1961 et seq., 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). Thus, a necessary element of any VICAR offense is that it be committed “as

consideration for the receipt of, or as consideration for a promise or agreement to pay,

anything of pecuniary value from” a racketeering enterprise or “for the purpose of gaining

entrance to or maintaining or increasing position” in the racketeering enterprise. 18 U.S.C.

§ 1959(a).

This purposefulness requirement means that, to be guilty of VICAR assault with a

dangerous weapon, the defendant must have committed the assault for one of these

purposes. See Manley, 52 F.4th at 152–53 (Niemeyer, J., concurring). That satisfies

Borden’s instruction that crimes of violence must involve purposeful or knowing conduct.

“[W]hen a defendant assaults . . . to gain a personal collateral advantage with an enterprise,

he makes a decision—a deliberate choice—to carry out the assault . . . to demonstrate his

worth to the enterprise.” Id. at 152 (Niemeyer, J., concurring).

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The VICAR statute’s purposefulness requirement applies to every offense in

§ 1959(a), including murdering and maiming. It would be indefensible to hold that a

defendant who committed any of these crimes for the purpose of improving his position in

a racketeering enterprise did so recklessly. VICAR offenses, including assault with a

dangerous weapon, simply are not run-the-risk crimes—they are deliberate and purposeful

machinations to raise one’s clout in a criminal enterprise.

***

It remains only to summarize the components of the predicate VICAR offense, the

elements of which Thomas admitted. See II.A.2. The actus reus was assault with a

dangerous weapon. That was a violent act. The mens rea was one of focused purpose. That

is a qualifying intent under Borden. Together the act and the purpose behind it plainly

qualify as a crime of violence, and the § 924(c) conviction accordingly stands.

Although VICAR assault with a dangerous weapon fits comfortably within the

narrowed class of crimes that qualify as § 924(c) crimes of violence, Thomas would have

us “look through” the VICAR statute to the state-law predicates underlying it. As “crimes

in aid of racketeering,” VICAR offenses themselves must be based on an underlying state

or federal predicate. Count Three of the indictment listed the predicates for Thomas’s

VICAR offense as two Virginia state-law offenses: (1) use or display of a firearm in

violation of Virginia Code § 18.2-53.1 and (2) brandishing in violation of § 18.2-282.

Thomas argues that for his VICAR offense to qualify as a crime of violence, these

underlying predicates must as well. This argument, however, conflates the predicate

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requirements of § 924(c) (which requires that its predicate qualify as a crime of violence)

and the VICAR statute (which does not).

To qualify as a “crime of violence” for purposes of § 924(c), an offense must “ha[ve]

as an element the use, attempted use, or threatened use of physical force against the person

or property of another.” 18 U.S.C. § 924(c)(3)(A) (emphasis added). The fact that the

statute’s text speaks so explicitly in terms of a single element is important. If one element

of an offense satisfies the force clause, it becomes superfluous to inquire whether other

elements likewise meet the requirement.

The VICAR statute makes it a crime to commit any of the statute’s enumerated

offenses “in violation of the laws of any State or the United States.” 18 U.S.C. § 1959(a).

We have interpreted this language to mean that one element of a VICAR conviction is that

the defendant committed the enumerated federal offense, and another is that the defendant’s

conduct violated an independent state or federal law. See Keene, 955 F.3d at 398–99;

accord Manley, 52 F.4th at 147. As established above, federal assault with a dangerous

weapon easily qualifies as a crime of violence. That this element of VICAR assault with a

dangerous weapon qualifies as a crime of violence is sufficient in and of itself to render the

offense a crime of violence, we need not progress to the state-law predicates. ∗

∗ Other courts have been wrestling with this question and have taken different approaches. Compare, e.g., Alvarado-Linares v. United States, 44 F.4th 1334, 1343 (11th Cir. 2022) (holding that, where the indictment alleged that VICAR murder was based on state-law predicates, the court must consider the underlying state-law predicates to determine whether they constitute crimes of violence), with Manners v. United States, 947 F.3d 377, 380–81 (6th Cir. 2020) (holding that VICAR assault with a dangerous weapon was itself a crime of violence without analyzing its predicates). As discussed at length above, we think that both the statutory text and our own precedents make clear that we need not look 13 USCA4 Appeal: 21-7257 Doc: 57 Filed: 11/29/2023 Pg: 14 of 14

That is not to say that courts can never look at the underlying state-law predicates.

Indeed, we have done so in the past. See, e.g., United States v. Mathis, 932 F.3d 242, 264

(4th Cir. 2019); Manley, 52 F.4th at 147–48 (looking to a state-law predicate where it had

already been established as a valid crime of violence). But where, as here, the generic

federal offense standing alone can satisfy the crime-of-violence requirements, courts need

not double their work by looking to the underlying predicates as well.

Thomas’s position would create a daisy chain of predicates and needlessly

complicate our statutory task. It is hardly necessary to examine predicates to a predicate in

a case where Congress and our precedents allow for a more straightforward approach. To

require courts to “look through” the VICAR offense to the underlying state crimes in every

instance would unnecessarily send them on a scramble through innumerable state laws

across the circuit. There are enough complications in this field of jurisprudence without

adding more to the heap.

III.

The judgment of the district court is hereby affirmed.

AFFIRMED

through a VICAR offense to its predicate crimes when the enumerated offense itself suffices. 14