United States v. Darren Morris

16-6-cr
United States v. Darren Morris

In the
United States Court of Appeals
for the Second Circuit

AUGUST TERM 2019

No. 16-6-cr

UNITED STATES OF AMERICA,
Appellee,

v.

DARREN MORRIS,

Defendant-Appellant. *

On Appeal from the United States District Court
for the Southern District of New York

ARGUED: JUNE 25, 2020
DECIDED: MARCH 7, 2023

*The Clerk of Court is respectfully directed to amend the official caption as
set forth above.
Before: CABRANES, LOHIER, and MENASHI, Circuit Judges.

The question presented is whether we must vacate a defendant’s

convictions under 18 U.S.C. § 924(c)(1)(A) because neither is

predicated on a “crime of violence.”

In 2014, Defendant-Appellant Darren Morris pled guilty to (1)

using, carrying, and possessing a firearm during an attempted armed

robbery of suspected marijuana dealers (“Count One”); and (2) using,

carrying, possessing, and discharging a firearm during an assault in

aid of racketeering of an individual whom Morris shot and killed

(“Count Two”). Both Counts were violations of 18 U.S.C.

§ 924(c)(1)(A), which requires that a defendant use, carry, or possess a

firearm “during and in relation to” or “in furtherance of,” as relevant

here, a “crime of violence.” To sustain Morris’s § 924(c) convictions,

each Count must contain a predicate “crime of violence.”

2
 Morris appeals from the judgment entered by the United States

District Court for the Southern District of New York (John F. Keenan,

Judge) sentencing him principally to 360-months’ imprisonment. He

argues that neither count contains a predicate “crime of violence”

necessary to sustain his § 924(c) convictions.

As to Count One, the parties agree that the predicate crime of

violence is attempted Hobbs Act robbery. Following the Supreme

Court’s decision in United States v. Taylor, 142 S. Ct. 2015 (2022),

attempted Hobbs Act robbery is no longer a “crime of violence” that

can sustain a conviction under 18 U.S.C. § 924(c). Accordingly, we

VACATE the District Court’s conviction and sentence on Count One.

As to Count Two, the parties agree that the predicate crime of

violence is a Violent Crimes in Aid of Racketeering (“VICAR”) assault,

although they dispute what type of VICAR assault the charged

conduct describes. Applying the so-called “modified categorical

approach” as we must, we first determine that the predicate crime is a

3
VICAR assault with a dangerous weapon premised on N.Y. Penal Law

§ 120.05(2) and perhaps also N.Y. Penal Law § 120.10(1). Based on our

precedent, we then conclude that Count Two’s predicate crime is a

“crime of violence” that can sustain a conviction under 18 U.S.C.

§ 924(c). Accordingly, we AFFIRM the District Court’s conviction and

sentence as to Count Two, and REMAND the cause to the District

Court in order for that Court to re-sentence Morris and thereafter enter

an amended judgment consistent with this opinion.

Judge Lohier joins the opinion except as to footnote 9, and has

filed a separate concurrence.

CHRISTOPHER J. DIMASE (Won S. Shin, on the
brief), Assistant United States Attorneys, for
Damian Williams, United States Attorney
for the Southern District of New York, New
York, NY, for Appellee.

4
 HOWARD A. LOCKER (Richard F. Albert, on
the brief), Morvillo Abramowitz Grand Iason
& Anello P.C., New York, NY, for Defendant-
Appellant.

JOSÉ A. CABRANES, Circuit Judge:

The question presented is whether we must vacate a defendant’s

convictions under 18 U.S.C. § 924(c)(1)(A) because neither is

predicated on a “crime of violence.”

In 2014, Defendant-Appellant Darren Morris pled guilty to (1)

using, carrying, and possessing a firearm during an attempted armed

robbery of suspected marijuana dealers (“Count One”); and (2) using,

carrying, possessing, and discharging a firearm during an assault in

aid of racketeering of an individual whom Morris shot and killed

(“Count Two”). Both Counts were violations of 18 U.S.C.

§ 924(c)(1)(A), which requires that a defendant use, carry, or possess a

firearm “during and in relation to” or “in furtherance of,” as relevant

5
here, a “crime of violence.” 1 To sustain Morris’s § 924(c) convictions,

each Count must contain a predicate “crime of violence.”

Morris appeals from the judgment entered by the United States

District Court for the Southern District of New York (John F. Keenan,

Judge) sentencing him principally to 360-months’ imprisonment. He

1 18 U.S.C. § 924(c) provides in relevant part:

(1)(A) . . . [A]ny person who, during and in relation to any crime of
violence or drug trafficking crime . . . for which the person may be
prosecuted in a court of the United States, uses or carries a firearm,
or who, in furtherance of any such crime, possesses a firearm, shall,
in addition to the punishment provided for such crime of violence
or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5
years

(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years. . . .

(3) For purposes of this subsection the term “crime of violence”
means 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
another . . . .

6
argues that neither count contains a predicate “crime of violence”

necessary to sustain his § 924(c) convictions. 2

As to Count One, the parties agree that the predicate crime of

violence is attempted Hobbs Act robbery. 3 Following the Supreme

Court’s decision in United States v. Taylor, 142 S. Ct. 2015 (2022),

attempted Hobbs Act robbery is no longer a “crime of violence” that

can sustain a conviction under 18 U.S.C. § 924(c). Accordingly, we

VACATE the District Court’s conviction and sentence on Count One.

2 Section 924(c) “contain[s] two distinct conduct elements”: (1) the use,
carrying, or possession of a firearm and (2) the commission of an underlying “crime
of violence” or “drug trafficking crime.” United States v. Rodriguez-Moreno, 526 U.S.
275, 280 (1999); see id. at 283 (Scalia, J., dissenting) (“[Section 924(c)] prohibits the
act of using or carrying a firearm ‘during’ (and in relation to) a predicate offense.”).
The commission of a predicate crime is therefore necessary to sustain a conviction
under § 924(c). See Johnson v. United States, 779 F.3d 125, 129–30 (2d Cir. 2015) (“The
plain language of § 924(c) requires only that the predicate crime of violence . . . have
been committed; the wording does not suggest that the defendant must be
separately charged with that predicate crime and be convicted of it.”).
3 Attempted Hobbs Act robbery requires proof that “(1) [t]he defendant
intended to unlawfully take or obtain personal property by means of actual or
threatened force, and (2) he completed a ‘substantial step’ toward that end.” United
States v. Taylor, 142 S. Ct. 2015, 2020 (2022).

7
 As to Count Two, the parties agree that the predicate crime of

violence is a Violent Crimes in Aid of Racketeering (“VICAR”) assault,

although they dispute what type of VICAR assault the charged

conduct describes. 4 Applying the so-called “modified categorical

approach” as we must, we first determine that the predicate crime is a

VICAR assault with a dangerous weapon premised on N.Y. Penal Law

§ 120.05(2) and perhaps also N.Y. Penal Law § 120.10(1). Based on our

precedent, we then conclude that Count Two’s predicate crime is a

“crime of violence” that can sustain a conviction under 18 U.S.C.

§ 924(c). Accordingly, we AFFIRM the District Court’s conviction and

sentence as to Count Two, and REMAND the cause to the District

4 The VICAR statute, in relevant part, criminalizes “assaults with a
dangerous weapon” and “assault[s] resulting in serious bodily injury” committed
“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.” 18 U.S.C. § 1959(a). It
also provides that the punishment “for assault with a dangerous weapon or assault
resulting in serious bodily injury” is “imprisonment for not more than twenty years
or a fine under this title, or both.” Id. § 1959(a)(3).

8
Court in order for that Court to re-sentence Morris and thereafter enter

an amended judgment consistent with this opinion.

I. BACKGROUND

On September 23, 2014, Morris pleaded guilty, pursuant to a

written plea agreement, to a two-count Superseding Information

charging him with (1) using, carrying, and possessing a firearm,

during and in relation to an attempted Hobbs Act robbery, in violation

of 18 U.S.C. § 924(c)(1)(A)(i) (Count One); and (2) using, carrying,

possessing, and discharging a firearm during and in relation to an

assault in aid of racketeering, in violation of 18 U.S.C.

§ 924(c)(1)(A)(iii), (c)(1)(C)(i) (Count Two). 5 On December 16, 2015,

the District Court imposed a sentence principally consisting of a total

term of 360 months of imprisonment—a 60-month sentence on Count

5Both counts also contained a reference to 18 U.S.C. § 2, which provides that
“[w]hoever commits an offense against the United States or aids, abets, counsels,
commands, induces or procures its commission” or “willfully causes an act to be
done which if directly performed by him or another would be an offense against
the United States is punishable as a principal.”

9
One and a 300-month sentence on Count Two, to run consecutively—

to be followed by a term of supervised release. Shortly thereafter,

Morris timely filed a notice of appeal.

II. DISCUSSION

A defendant can be convicted under 18 U.S.C. § 924(c) only if

“during and in relation to any crime of violence or drug trafficking

crime” he “use[d] or carrie[d] a firearm, or . . ., in furtherance of any

such crime, possesse[d] a firearm.” 18 U.S.C. § 924(c)(1)(A) (emphasis

added). 6 On appeal, Morris argues that we should vacate both of his

§ 924(c) convictions because each requires use of a firearm in relation

to a predicate crime of violence, and, as he contends, neither § 924(c)

predicate crime is a “crime of violence.” 7 Accordingly, the question

6 A conviction for use, carrying, or possession of a firearm, Subsection
924(c)(1)(A)(i)—cited in Count One—requires imprisonment of not less than 5
years. A conviction for discharge of a firearm, Subsection 924(c)(1)(A)(iii)—cited in
Count Two—requires imprisonment of not less than 10 years.
7 The Government does not argue that either of Morris’s § 924(c) convictions
is predicated on a “drug trafficking crime.” Accordingly, we consider here only

10
presented is whether either of the Counts is predicated on a “crime of

violence” that can sustain a § 924(c) conviction. That question is one

of law, which we review de novo. See United States v. Santos, 541 F.3d

63, 67 (2d Cir. 2008).

Section 924(c) “define[s] the term ‘crime of violence’ in two

subparts—the first known as the elements clause, and the second the

residual clause.” United States v. Davis, 139 S. Ct. 2319, 2324 (2019).

Under the elements clause, a crime of violence is a felony that “has 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).

Under the “residual clause,” a crime of violence is a felony “that 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)(B), invalidated by Davis, 139 S. Ct. at

whether the predicate offenses are “crime[s] of violence.” See 18 U.S.C. §
924(c)(1)(A).

11
2336. The Supreme Court has held that the residual clause is

unconstitutionally vague. See Davis, 139 S. Ct. at 2336. Thus, we may

only sustain Morris’s § 924(c) convictions if they are predicated on a

“crime of violence” under the elements clause. See 18 U.S.C.

§ 924(c)(3)(A).

A. Count One

The first question presented is whether Count One is predicated

on a crime of violence that can sustain Morris’s conviction under

§ 924(c). It is not.

Count One alleged that Morris used a firearm during the

following predicate crime of violence: “the attempted armed robbery

of suspected marijuana dealers of marijuana and marijuana proceeds

in the vicinity of Ely Avenue in the Bronx, New York.” App’x 101.

Although this charge did not specify that attempted Hobbs Act

robbery was the predicate crime, the parties agree that it was.

12
 Our analysis with regard to Count One is a simple one. As

noted, Count One’s § 924(c) predicate crime of violence is attempted

Hobbs Act robbery. The Supreme Court held in United States v. Taylor

that attempted Hobbs Act robbery does not qualify as a § 924(c) crime

of violence because “no element of attempted Hobbs Act robbery

requires proof that the defendant used, attempted to use, or threatened

to use force.” 142 S. Ct. at 2021; see also United States v. McCoy, 58 F.4th

72, 73–74 (2d Cir. 2023). Accordingly, attempted Hobbs Act robbery

can no longer serve as the predicate offense required for Morris’s

§ 924(c) conviction.

In the absence of any alternative predicate to sustain conviction

on Count One, we agree with Morris (and the Government) that

vacatur of that conviction is warranted.

13
 B. Count Two

The second question presented is whether Count Two is

predicated on a crime of violence that can sustain Morris’s conviction

under § 924(c). It is.

Count Two alleged that Morris discharged a firearm in

furtherance of the following predicate crime of violence: “the assault

in aid of racketeering of an individual, namely, Jordan Jones, . . . who

was believed to have previously assaulted a criminal associate of

Morris, in the vicinity of Monticello Avenue and Nereid Avenue,

Bronx, New York.” App’x 101–02 (capitalization normalized). Count

Two, like Count One, omitted a citation to the criminal statute that

served as a predicate offense for imposition of criminal liability under

§ 924(c). See id. Notwithstanding the absence of an express citation,

14
the parties agree that Morris’s Count Two conviction was predicated

on a violation of the VICAR statute, 18 U.S.C. § 1959(a)(3). 8

“To determine whether an offense is a crime of violence under

the elements clause, courts employ what has come to be known as the

‘categorical approach.’” United States v. Pastore, 36 F.4th 423, 428 (2d

Cir. 2022) (internal quotation marks and citation omitted). “Under this

approach, we do not consider the particular facts before us; rather, we

identify the minimum criminal conduct necessary for conviction

under a particular statute by looking only to the statutory

definitions—i.e., the elements—of the offense.” Id. (internal quotation

marks, alterations, and citation omitted). “We then evaluate whether

this minimum conduct falls within the definition of a crime of violence

under [S]ection 924(c)(3)(A).” Id. (internal quotation marks and

citation omitted).

8 See ante note 4 (providing the relevant § 1959(a)(3) statutory language).

15
 We employ what is known as the “modified categorical

approach,” as opposed to the “categorical approach,” where a statute

is “divisible” because it “sets out one or more elements of the offense

in the alternative,” Descamps v. United States, 570 U.S. 254, 257 (2013),

and “thereby define[s] multiple crimes.” Pastore, 36 F.4th at 428. The

VICAR statute is such a statute because it defines, as relevant here, two

types of VICAR assault: VICAR assault with a deadly weapon

(“VICAR Assault DW”) and VICAR assault resulting in serious bodily

injury (“VICAR Assault SBI”). See 18 U.S.C. § 1959(a). We thus apply

the “modified categorical approach” to determine which VICAR

assault variant underlies Morris’s § 924(c) conviction. 9 To aid in our

9 Both the categorical and “modified” categorical approaches, as the
Supreme Court has explained, “preclude[] . . . inquiry into how any particular
defendant may commit the crime” and require us to determine only “whether the
. . . felony at issue always requires the government to prove” that a predicate crime
is a “crime of violence.” Taylor, 142 S. Ct. at 2020.

Accordingly, when considering whether Morris’s Count Two conviction
under § 924(c) is predicated on a “crime of violence,” we cannot merely rely on
Morris’s own admission that he “shot Jordan Jones,” who then “died.” App’x 125.
Instead, we must apply the “modified categorical approach,” described above and
below in text and depicted in the attached appendix. We add this appendix as an

16
analysis, “we may review a limited class of documents from the record

of conviction to determine what crime, with what elements,” serves as

the predicate crime of violence. Pastore, 36 F.4th at 428 (internal

quotation marks omitted); see Shepard v. United States, 544 U.S. 13, 26

(2005). Then, once we have identified the predicate crime, we

“compare the elements of the [predicate] offense . . . with section

924(c)(3)(A)’s definition of a crime of violence.” Pastore, 36 F.4th at 428

(internal quotation marks omitted).

aid to help explain to “any layperson with common sense,” United States v. Scott,
990 F.3d 94, 125 (2d Cir. 2021) (en banc) (Park, J., concurring), that our lengthy
analysis and conclusion in this opinion comport with what that person already
knows: an obviously violent crime is indeed a “crime of violence.”

That our analysis and appendix are necessary to answer such an obvious
question is further proof why our journey here has been regarded as Alice’s
“journey Through the Looking Glass,” Taylor, 142 S. Ct. at 2026 (Thomas, J.,
dissenting), and Sabine Moreau’s 900-mile journey to a train station roughly 38
miles away, Mathis v. United States, 579 U.S. 500, 536–37 (2016) (Alito, J., dissenting).
A growing number of federal judges do not wish to continue on this journey. See
Scott, 990 F.3d at 125–27 (Park, J., concurring) (collecting cases). We have noted that
Congress can give us an exit ramp at any time. See, e.g., Chery v. Garland, 16 F.4th
980, 989–92 (2d Cir. 2021) (Newman, Cabranes, & Parker, JJ.) (proposing, in the
immigration law context, a legislative solution that would “avoid use of the
complicated categorical approach”); see also Ovalles v. United States, 905 F.3d 1231,
1253 (11th Cir. 2018) (en banc) (Pryor, J., concurring).

17
 Consistent with that framework, the first step in our analysis is

to determine which VICAR assault variant is the predicate crime of

violence underlying Morris’s Count Two conviction under § 924(c).

Because either VICAR assault variant must be committed “in violation

of the laws of any State or the United States,” our second step is to

determine which of those laws Morris violated during the commission

of the specific VICAR assault identified at Step One. Our third and

final step is to determine whether the committed VICAR assault,

premised on a violation of the relevant state or federal law identified

at Step Two, is a “crime of violence” under § 924(c)’s elements clause.

1. Step One

The first step in our analysis is to determine which specific

VICAR assault offense is the predicate crime of violence underlying

Morris’s Count Two conviction. But, as noted, the VICAR statute

specifies two types of VICAR assault—VICAR Assault DW and

18
VICAR Assault SBI. 10 Accordingly, under the modified categorical

approach, we must first determine which VICAR assault—Assault

DW or Assault SBI—is the predicate crime.

Although Morris objects that “the relevant Shepard documents

do not specify which form of VICAR assault [he] was convicted of,”

Def. Nov. 28 Letter at 2, we can easily conclude that Count Two is

predicated on a VICAR Assault DW. This is because Count Two

expressly alleged that “in furtherance of such crime, [Morris] did

possess a firearm, . . . to wit, a handgun, which was discharged” and

omits reference to any serious bodily injury. App’x 102 (emphasis

added). As its name suggests, VICAR Assault SBI requires an “assault

resulting in a serious bodily injury.” 18 U.S.C. § 1959(a)(3). Under

Shepard, we may consider the "transcript of [the] colloquy between

[the] judge and defendant in which the factual basis for the plea was

10 See ante note 4 (providing relevant § 1959(a)(3) statutory language).

19
confirmed by the defendant.” 544 U.S. at 26. Here, the transcript

referred to the fact that a victim died. However, Count Two’s omission

of any reference to “serious bodily injury” precludes a finding that

Count Two is predicated on VICAR Assault SBI. The only type of

VICAR Assault left—“assault with a dangerous weapon”—fits the

charged conduct, as a handgun is undoubtedly a “dangerous

weapon.”

2. Step Two

VICAR Assault DW is itself further divisible into multiple

crimes. Among the elements of VICAR Assault DW is that the

“assault[] with a dangerous weapon” must be done “in violation of the

laws of any State or the United States.” 18 U.S.C. § 1959(a). Therefore,

VICAR Assault DW could itself be predicated on any number of

federal or state crimes. Because the modified categorical approach

requires that we identify the specific predicate crime supporting a

§ 924(c) conviction, the second step in our analysis is to determine

20
which “laws of any State or the United States” Morris violated during

the VICAR Assault DW.

During his plea colloquy before the District Court, Morris

admitted to having “possessed a firearm for the purpose of assaulting

Jordan Jones”; “agree[ing] to shoot Jordan to maintain [his] standing

in a group of individuals who had committed crimes together”; and

“sh[ooting] Jordan Jones on July 6, 2009,” after which Jones died.

App’x 124–25. Based on the “record materials,” Mathis, 579 U.S. at 517,

we conclude that Morris’s assault violated at least N.Y. Penal Law

§ 120.05(2) (“A person is guilty of assault in the second degree

when . . . [w]ith intent to cause physical injury to another person, he

causes such injury to such person or to a third person by means of a

deadly weapon or a dangerous instrument.”), and perhaps also N.Y.

Penal Law § 120.10(1) (“A person is guilty of assault in the first degree

when. . . [w]ith intent to cause serious physical injury to another

person, he causes such injury to such person or to a third person by

21
means of a deadly weapon or a dangerous instrument.”), even though

the latter requires an intent to cause “serious physical injury” that was

not charged in this case. 11

VICAR Assault DW premised on a violation of either N.Y. Penal

Law § 120.05(2) or N.Y. Penal Law § 120.10(1) is not further divisible

into multiple or alternate crimes. We have thus identified “from

among several alternatives [] the [predicate] crime [of violence

supporting Morris’s § 924(c)] conviction,” Descamps, 570 U.S. at 264:

VICAR Assault DW premised on a violation of N.Y. Penal Law

§ 120.05(2) and perhaps also N.Y. Penal Law § 120.10(1). All that is left

to do is “compare the elements of the offense of conviction with

11 Because each of these New York assault statutes requires that the
defendant “inten[d]” to cause “physical injury,” each requires a mens rea of
purpose. We therefore need not address Morris’s argument that “one can commit
assault with a mens rea short of intent and without violent physical force.” Morris
Br. at 18 (first emphasis added).

22
[S]ection 924(c)(3)(A)’s definition of a crime of violence.” Pastore, 36

F.4th at 428 (internal quotation marks and citation omitted).

3. Step Three

Accordingly, the third and final step in our analysis is to

determine whether VICAR Assault DW premised on a violation of

either N.Y. Penal Law § 120.05(2) or N.Y. Penal Law § 120.10(1) is a

“crime of violence” under § 924(c)’s elements clause. We conclude that

it is.

We have already held that VICAR Assault DW premised on a

violation of N.Y. Penal Law § 120.05(2) can sustain a conviction under

§ 924(c). See United States v. Laurent, 33 F.4th 63, 92 (2d Cir. 2022);

United States v. White, 7 F.4th 90, 104 & n.75 (2d Cir. 2021). As noted, it

is not entirely clear that the VICAR Assault DW in this case can be

premised on N.Y. Penal Law § 120.10(1) given the absence of any

reference to serious bodily injury in Count Two. We nevertheless

consider the open question of whether a VICAR Assault DW premised

23
on a violation of N.Y. Penal Law § 120.10(1) in the § 924(c) context is a

crime of violence. We have held that it is a “crime of violence” under

the 18 U.S.C. § 16(a) elements clause, which is in all relevant aspects

identical to the § 924(c) elements clause. See Singh v. Garland, 58 F.4th

34, 36–37 (2d Cir. 2022); Davis, 139 S. Ct. at 2326. 12 It follows, and we

hold, that VICAR Assault DW premised on a violation of N.Y. Penal

Law § 120.10(1) is a crime of violence that supports a conviction under

§ 924(c). Accordingly, we sustain Morris’s Count Two conviction.

III. CONCLUSION

In sum, we hold as follows:

1. Morris’s § 924(c) conviction on Count One is vacated because

attempted Hobbs Act robbery is not a valid predicate crime

12 Both 18 U.S.C. § 16(a) and § 924(c) provide, in relevant part, that the “term
‘crime of violence’ means . . . an offense that has an element the use, attempted use,
or threatened use of physical force against the person or property of another.” 18
U.S.C. §§ 16(a), 924(c)(3)(A).

24
 of violence that would support a conviction under § 924(c).

See United States v. Taylor, 142 S. Ct. 2015 (2022).

2. Morris’s § 924(c) conviction on Count Two is sustained

because, after applying the modified categorical approach

prescribed by the Supreme Court, we conclude that the

predicate crime of violence—VICAR assault with a

dangerous weapon premised on a violation of N.Y. Penal

Law § 120.05(2) and perhaps also N.Y. Penal Law

§ 120.10(1)—qualifies as a crime of violence that supports a

conviction under § 924(c).

We have considered all of Morris’s remaining arguments and

find them to be without merit. Accordingly, we VACATE the District

Court’s conviction and sentence as to Count One, AFFIRM the District

Court’s conviction and sentence as to Count Two, and REMAND the

cause to the District Court in order for that Court to re-sentence Morris

25
and thereafter enter an amended judgment consistent with this

opinion.

26
APPENDIX VICAR Assault

STEP 1: VICAR Assault is
divisible under the modified
categorical approach into
VICAR Assault Deadly Weapon
VICAR Assault DW (“DW”) and VICAR Assault VICAR Assault SBI
Serious Bodily Injury (“SBI”).
We therefore need to
STEP 2: An element of VICAR determine which type of
Assault DW is that the assault VICAR assault Morris
violated state or federal law. committed.
Accordingly, VICAR Assault DW is
further divisible under the Based on the charging
modified categorical approach
because any number of state or documents, it is clear
federal laws could satisfy that that VICAR Assault
element. We therefore need to DW was the VICAR
determine which state or federal
law Morris violated during the
Assault variant Morris
course of the assault. committed, not VICAR
Assault SBI.

N.Y. Penal Law § 120.10(1) N.Y. Penal Law § 120.05(2)

STEP 3: Finally, we must determine whether VICAR Assault DW,
premised on a violation of either of these N.Y. statutes, is a “crime
of violence” under the elements clause. Based on precedent, both
are. Accordingly, both can sustain a § 924(c) conviction.
LOHIER, Circuit Judge, concurring:

I join the majority opinion except as to footnote 9. I agree that the

categorical approach is complicated, and I sympathize with the concerns of my

judicial colleagues who have called for its reform or total elimination. But there

is some wisdom in the current system.

First, despite its complicated nature, “[t]he categorical approach serves

‘practical’ purposes: It promotes judicial and administrative efficiency by

precluding the relitigation of past convictions in minitrials conducted long after

the fact.” Moncreiffe v. Holder, 569 U.S. 184, 200–01 (2013). “Immigration judges

and sentencing judges have limited time and limited access to information about

prior convictions.” Pereida v. Wilkinson, 141 S. Ct. 754, 771 (2021) (Breyer, J.,

dissenting). Without the categorical approach, judges would be burdened with

difficult fact-finding inquiries into years-old proceedings. This is a particular

danger in our Circuit because courts in Connecticut need not establish any

“factual basis for a guilty plea,” State v. Greene, 874 A.2d 750, 762 (Conn. 2005),

and defendants in New York may enter a guilty plea pursuant to a plea bargain

without any factual basis existing for the plea, People v. Favreau, 105 N.Y.S.3d 721,

723 (3d Dep’t 2019).

1
 Second, the categorical approach is more protective of defendants at

sentencing. It avoids notice-based due process concerns that might proliferate if

a federal judge could characterize “a crime as a violent one . . . based only on a

years-later review of a defendant’s conduct that is, in turn, based only on agreed-

upon facts that were adduced at, say, a plea colloquy.” United States v. Faust, 853

F.3d 39, 64 (1st Cir. 2017) (Barron, J., concurring). And it ensures that

defendants’ Sixth Amendment rights are vindicated. Id. at 50 (citing Descamps v.

United States, 570 U.S. 254, 269 (2013)). None of the decisions cited by the

majority offers or describes a better system or approach that does so.

Finally and “most importantly, . . . it is what Congress has long chosen

with respect to” the Armed Career Criminal Act. Pereida, 141 S. Ct. at 771

(Breyer, J., dissenting). So “whatever the costs and benefits of the categorical

approach,” id., we are bound to follow it.

For these reasons I concur in the majority’s opinion except as to footnote 9.

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