Tenth Circuit Announces That After Borden An Offense That Can Be Committed ‘Recklessly’ Is Not Categorically a ‘Crime of Violence’ Under § 924(c)’s Elements Clause
by Douglas Ankney
In consolidated cases on remand from the U.S. Supreme Court, the U.S. Court of Appeals for the Tenth Circuit held that defendants’ Violent Crimes in Aid of Racketeering (“VICAR”), 18 U.S.C. § 1959, convictions that were based on violations of Arizona and Utah statutes criminalizing assault with a dangerous weapon were not qualifying predicate crimes of violence to support their convictions under 18 U.S.C. § 924(c). In so holding, the Court expressly overruled United States v. Mann, 899 F.3d 898 (10th Cir. 2018), to the extent it held to the contrary.
Sitamipa Toki, Eric Kamahele, and Kepa Maumau (“Defendants”) were each convicted of one or more counts under VICAR, which makes it a federal offense to commit certain state crimes in aid of racketeering. Those convictions were based on violations of Arizona Revised Statutes § 13-1204(A) (2008) and Utah Code Annotated § 76-5-103(1) (2008) criminalizing assault with a deadly weapon. The Government conceded that the state statutes can be violated with a mens rea of recklessness. The VICAR convictions were used as predicate offenses to convict the Defendants of violating § 924(c).
But because those state statutes permitted convictions with a mens rea of recklessness, the Defendants filed 28 U.S.C. § 2255 motions arguing their § 924(c) convictions predicated on the VICAR convictions must be vacated. Defendants alleged that the aggravated assault convictions were not categorically “crimes of violence” under the “elements clause” of § 924(c)(3)(A) because the state statutes do not require the intentional use of force, so their § 924(c) convictions were based upon the statute’s unconstitutional “residual clause” in § 924(c)(3)(B).
The U.S. District Court for the District of Utah denied the § 2255 motions, and the Defendants appealed. While the appeal was pending, the Tenth Circuit decided Mann, which held that crimes committed with a mens rea of recklessness satisfied the elements clause of § 924(c). After the Mann Court affirmed the district court’s denials of the § 2255 motions, the Defendants petitioned the U.S. Supreme Court for certiorari. The U.S. Supreme Court granted their certiorari petitions, vacated the judgments of the Tenth Circuit, and remanded for further consideration in light of Borden v. United States, 141 S. Ct. 1817 (2021).
In the present case, the Court stated that § 924(c) makes it a crime to use or carry a firearm “during and in relation to any crime of violence or drug trafficking crime.” § 924(c)(1)(A). In 2019, the Supreme Court held that the residual clause in § 924(c)(3)(B) is unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319 (2019). The Tenth Circuit subsequently held that Davis announced a new substantive rule, meaning that it applies retroactively on collateral review. United States v. Bowen, 936 F.3d 1091 (10th Cir. 2019). Consequently, the Court explained that the Defendants’ convictions must be based upon predicate offenses that satisfy the definition of crimes of violence in the elements clause, § 924(c)(3)(A).
The Court observed that Borden held that a crime that can be committed with a mens rea of recklessness does not categorically qualify as a “violent felony” under the elements clause of the Armed Career Criminal Act (“ACCA”), § 924(e)(2)(B)(i). The Court explained that the elements clause of the ACCA “is nearly identical to the elements clause of § 924(c). Thus, the Court announced: “We therefore hold that, after Borden, an offense that can be committed recklessly is not categorically a ‘crime of violence’ under § 924(c)’s elements clause. To the extent that our decision in Mann held to the contrary, it is overruled by Borden.”
Further, the Court stated that “new substantive rules announced by the Supreme Court ‘generally apply retroactively.’” Schriro v. Summerlin, 542 U.S. 348 (2004). It explained that substantive rules include decisions “that narrow the scope of a criminal statute by interpreting its terms.” Id.; see also Bousley v. United States, 523 U.S. 614 (1998). The Court further explained that Borden established a new substantive rule “because it interpreted the language of ACCA’s elements clause—which … is materially identical to § 924(c)’s elements clause—and held it did not reach predicate crimes that can be committed recklessly.” Finally, the Court noted that the Government conceded that Borden applies retroactively to the present case. Consequently, the Court accepted the Government’s concession that Borden’s rule applies to the review of Defendants’ claims.
In light of the foregoing discussion, the Court ruled that the Defendants are entitled to relief from their VICAR-based § 924(c) convictions. As per Borden, VICAR convictions for crimes that can be committed with a mens rea of recklessness can’t serve as valid § 924(c) predicates under the unconstitutional residual clause. See Bowen. The Defendants’ VICAR convictions thus do not qualify as crimes of violence for purposes of § 924(c). The Court concluded that the trial court erred when it instructed the jury to the contrary, and the error had a “substantial and injurious effect or influence in determining the jury’s verdict” and thus was not harmless. Brecht v. Abrahamson, 507 U.S. 619 (1993).
Accordingly, the Court reversed the district court’s order denying the Defendants’ § 2255 motions and remanded with instructions to vacate their VICAR-based § 924(c) convictions. See: United States v. Toki, 23 F.4th 1277 (10th Cir. 2022).
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