United States v. Davis

21-1486-cr
United States v. Davis

In the
United States Court of Appeals
For the Second Circuit
________

AUGUST TERM 2022

ARGUED: OCTOBER 27, 2022
DECIDED: JULY 18, 2023

No. 21-1486

UNITED STATES OF AMERICA,
Appellee,

v.

KAREEM DAVIS,
Defendant-Appellant. *
1

________

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

Before: WALKER, LEE, and ROBINSON, Circuit Judges.
________

Defendant-Appellant Kareem Davis appeals from a judgment
of conviction entered by the United States District Court for the
Southern District of New York (Schofield, J.) after a jury found him

* The Clerk of Court is respectfully directed to amend the caption accordingly.
guilty of racketeering conspiracy (Count One); murder in aid of
racketeering (Count Two); and using a firearm during and in relation
to a crime of violence (Count Three). Davis argues that his Count
Three conviction must be vacated because his predicate offense of
murder in aid of racketeering was not a crime of violence. We
disagree.

We reject the other arguments raised in Davis’s appeal in a
summary order filed concurrently with this opinion. Accordingly, we
AFFIRM the judgment of the district court.

________

JORDAN ESTES (Christopher Clore, Alexandra
Rothman, Stephen J. Ritchin, 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 the United
States of America.

RICHARD H. ROSENBERG, New York, NY, for
Defendant-Appellant Kareem Davis.

________

JOHN M. WALKER, JR., Circuit Judge:

Defendant-Appellant Kareem Davis appeals from a judgment
of conviction entered by the United States District Court for the
Southern District of New York (Schofield, J.) after a jury found him
guilty of racketeering conspiracy (Count One); murder in aid of
racketeering (Count Two); and using a firearm during and in relation
to a crime of violence (Count Three). Davis argues that his Count

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Three conviction must be vacated because his predicate offense of
murder in aid of racketeering was not a crime of violence. We
disagree.

We reject the other arguments raised in Davis’s appeal in a
summary order filed concurrently with this opinion. Accordingly, we
AFFIRM the judgment of the district court.

BACKGROUND

In 2018, Davis was indicted for multiple offenses arising from
his alleged membership in Killbrook, a criminal gang that operated in
the South Bronx, New York, and his participation in the 2011 gang-
related murder of Bolivia Beck, the girlfriend of a rival gang member.
As relevant here, Count Two of the indictment charged Davis with
murder in aid of racketeering (“VICAR murder”) pursuant to 18
U.S.C. § 1959(a)(1), in violation of N.Y. Penal Law §§ 125.25, 125.27,
and 20.00. 1 Count Three charged Davis with using and carrying a
firearm during and in relation to, and possessing a firearm in
furtherance of, a crime of violence, “namely, the murder in aid of
racketeering charged in Count Two,” in violation of 18 U.S.C.
§ 924(c). 2

At trial, the government presented evidence that Davis, along
with his brother, Killbrook member Gary Davis, participated in a

1 “VICAR” is the acronym for “violent crimes in aid of racketeering,” prohibited
by 18 U.S.C. § 1959.
2 App’x 30–31. The indictment charged Davis with, and he was convicted of

violating, § 924(j)(1), which authorizes the death penalty or “imprisonment for any
term of years or for life” for murder committed “in the course of a violation of
subsection (c).” 18 U.S.C. § 924(j)(1). We have held that § 924(j) incorporates the
entirety of § 924(c). United States v. Barrett, 937 F.3d 126, 129 n.2 (2d Cir. 2019).

3
retaliatory shooting targeting Joey Colon, a rival gang member. The
shooters missed their intended target, striking instead Colon’s
girlfriend, who died of her injuries.

The jury found Davis guilty on all counts. The district court
sentenced Davis to life imprisonment on Count Two, and 30 years on
each of Counts One and Three, to be served concurrently.

DISCUSSION

On appeal, Davis argues that his Count Three conviction for
using a firearm during and in relation to a crime of violence must be
vacated because the predicate offense upon which it was based—
VICAR murder—is not a “crime of violence” within the meaning of
§ 924(c). Whether an offense is categorically a crime of violence is a
question of law that the court reviews de novo. 3

A. The Categorical and Modified Categorical Approaches

Section 924(c) provides for mandatory minimum sentences for
a defendant “who, during and in relation to any crime of violence . . . ,
uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm.” 4 A “crime of violence” is defined as a felony
that either “(A) has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another,” or “(B) 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.” 5 In United States v. Davis,
the Supreme Court found the latter, “residual” clause of the statute,

3 United States v. Morris, 61 F.4th 311, 316 (2d Cir. 2023).
4 18 U.S.C. § 924(c)(1)(A).
5 Id. § 924(c)(3)(A)–(B).

4
§ 924(c)(3)(B), to be unconstitutionally vague. 6 Thus, we may sustain
Davis’s § 924(c) conviction only if it was predicated on a crime of
violence under § 924(c)(3)(A), the statute’s “elements” or “force”
clause. 7

“To determine whether an offense is a crime of violence under
the elements [or ‘force’] clause, courts employ what has come to be
known as the ‘categorical approach.’” 8 Under the categorical
approach, a court identifies the minimum conduct necessary to
support conviction under a particular statute, looking only to the
statutory definitions and not the defendant’s underlying conduct. 9
The court assesses “the elements of the statutory offense of which the
defendant has been convicted, and compare[s] them to the generic
federal definition of a ‘crime of violence.’” 10 If the statute of
conviction “criminalizes any conduct that would not fall within the
scope of . . . the force clause” then “a conviction under the [statute of
conviction] is not categorically a crime of violence and cannot serve
as a predicate offense” for purposes of § 924(c). 11 In other words, a
statute of conviction that “sweeps more broadly than” the force clause
is not a categorical match and cannot count as a § 924(c) predicate. 12

Certain statutes demand a more detailed inquiry at the
threshold. When a statute “‘list[s] elements in the alternative, and

6 139 S. Ct. 2319, 2336 (2019). The decision involved a different defendant named
Davis with no relation to Defendant-Appellant here.
7 See Morris, 61 F.4th at 316.

8 United States v. Pastore, 36 F.4th 423, 428 (2d Cir. 2022) (internal quotation marks

omitted); see Mathis v. United States, 579 U.S. 500, 504–05 (2016).
9 United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018).

10 Stone v. United States, 37 F.4th 825, 830 (2d Cir.), cert. denied, 143 S. Ct. 396 (2022).

11 United States v. Jones, 878 F.3d 10, 16 (2d Cir. 2017).

12 Descamps v. United States, 570 U.S. 254, 261 (2013).

5
thereby define[s] multiple crimes,’ we have deemed the statute to be
divisible and applied a ‘modified’ categorical approach.” 13 The
modified categorical approach allows us to examine “a limited class
of documents (for example, the indictment, jury instructions, or plea
agreement and colloquy) to determine what crime, with what
elements, a defendant was convicted of.” 14 “We then return to the
categorical analysis and compare the elements of the offense of
conviction with section 924(c)(3)(A)’s definition of a crime of
violence.” 15

Davis submits that the VICAR murder statute is indivisible
because “it creates a single crime—murder—and specifies various
means by which the offense may be committed.” 16 Accordingly, he
argues that we need only apply the categorical approach and
determine whether the generic, federal definition of second-degree
murder is a crime of violence under § 924(c). He contends that the
generic, federal definition includes reckless conduct, but that § 924(c)
more narrowly requires intentional conduct, and thus VICAR murder
is not a crime of violence. The government urges the court to find the
statute divisible and subject to the modified categorical approach
“because it plainly sets out multiple sets of alternative elements.” 17

Our precedent squarely answers this question in the
government’s favor. In United States v. Pastore, we considered
“whether a substantive VICAR count for attempted murder in aid of

13 Pastore, 36 F.4th at 428 (quoting Mathis, 549 U.S. at 505); see Descamps, 570 U.S. at
261–62.
14 Jones, 878 F.3d at 16 (quoting Mathis, 579 U.S. at 505–06).

15 Pastore, 36 F.4th at 428 (internal quotation marks omitted).

16 Appellant’s Br. 42.

17 Government’s Br. 30.

6
racketeering . . . may constitute a valid predicate crime of violence for
purposes of section 924(c).” 18 In determining what approach should
govern our analysis, we held that “the modified categorical approach
applies to substantive VICAR offenses.” 19 We noted that this court
has held that substantive RICO 20 offenses are subject to the modified
categorical approach, and that the same rationale applied to
substantive VICAR offenses, as “VICAR complements RICO, and the
statutes are similarly structured”—for example, by requiring the
underlying predicate crimes to “be identified in the charging
instrument.” 21 We therefore reject Davis’s contention that the VICAR
murder statute is indivisible, and hold that the modified categorical
approach applies to our consideration of whether his conviction for
murder in aid of racketeering, a substantive VICAR offense,
constitutes a crime of violence for purposes of § 924(c). 22

B. Whether Davis’s VICAR Murder Conviction Qualifies
as a Crime of Violence Under § 924(c)

Applying the modified categorical approach, we must first
“determine what crime, with what elements, [Davis] was convicted
of.” 23 Because a “substantive VICAR offense ‘hinge[s] on’ the

18 36 F.4th at 428.
19 Id. at 429.
20 “RICO” is the acronym for the Racketeer Influenced and Corrupt Organizations

Act, 18 U.S.C. §§ 1961–1968.
21 Pastore, 36 F.4th at 429 (quoting United States v. Laurent, 33 F.4th 63, 89 (2d Cir.

2022)).
22 We note, as we concluded in Pastore, that the New York second-degree murder

statute that defines the predicate offense for Davis’s VICAR murder conviction is
itself divisible and amenable to the modified categorical approach insofar as it lists
elements for second-degree murder in the alternative. Id. at 429 n.4.
23 Jones, 878 F.3d at 16 (internal quotation marks omitted) (quoting Mathis, 579 U.S.

at 505–06).

7
underlying predicate offense, . . . ‘we look to th[at] predicate offense[ ]
to determine whether’ [Davis] was charged with and convicted of a
crime of violence.” 24 Davis’s VICAR murder conviction “hinged on”
his having committed the underlying predicate offense of second-
degree murder in violation of New York law.

Davis and the government dispute whether Davis was
convicted of intentional murder or depraved indifference murder
under New York’s second-degree murder statute. 25 This distinction
is critical to what remains of Davis’s argument, because he contends
that depraved indifference murder under New York law requires a
minimum mens rea of recklessness, sweeping more broadly than what
he argues is the force clause’s requirement of intent. 26 Thus,
according to Davis, depraved indifference murder cannot constitute
a crime of violence under § 924(c).

The government counters that Davis was plainly convicted of
intentional murder under New York law. It then argues in the
alternative that even if Davis had been convicted of depraved
indifference murder, such murder is a crime of violence because it
requires a mens rea of not “ordinary recklessness,” but “extreme
recklessness” or “depraved heart”—a highly culpable mental state
that “approach[es] intent or knowledge.” 27 We need not reach the

24 Pastore, 36 F.4th at 429 (quoting United States v. Ivezaj, 568 F.3d 88, 96 (2d Cir.
2009)).
25 Compare N.Y. Penal Law § 125.25(1), with id. § 125.25(2).

26 See Borden v. United States, 141 S. Ct. 1817, 1834 (2021) (“Offenses with a mens rea

of recklessness do not qualify as violent felonies under ACCA [the Armed Career
Criminal Act]. They do not require, as ACCA does, the active employment of force
against another person.”); United States v. Castleman, 572 U.S. 157, 169 & n.8 (2014)
(“merely reckless [conduct] may not be a ‘use’ of force”).
27 Government’s Br. 36–38.

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government’s alternative argument, however, because the record is
clear that Davis was convicted of second-degree intentional murder
under New York law.

The modified categorical approach permits us to “peer into the
record to see which of the multiple crimes was implicated.” 28 The
indictment alleged that Davis committed VICAR murder in that he,
in violation of New York law, “(i) with intent to cause the death of
another person, . . . caused the death of Bolivia Beck; and (ii) under
circumstances evincing a depraved indifference to human life, . . .
recklessly engaged in conduct which created a grave risk of death to
another person, and thereby caused the death of Beck.” 29 This
language parallels New York’s second-degree murder statute, which
provides that a person is guilty of second-degree murder when (1)
“[w]ith intent to cause the death of another person, he causes the
death of such person or of a third person” or (2) “[u]nder
circumstances evincing a depraved indifference to human life, he
recklessly engages in conduct which creates a grave risk of death to
another person, and thereby causes the death of another person.” 30
The government agrees that the indictment charged Davis with both
second-degree intentional and depraved indifference murder as
predicate offenses to VICAR murder.

We must determine not simply the crime with which Davis was
charged, however, but “what crime, with what elements, [he] was
convicted of.” 31 To do this, we look to other elements of the record,

28 Jones, 878 F.3d at 16.
29 App’x 29–30.
30 N.Y. Penal Law § 125.25(1)–(2).

31 Jones, 878 F.3d at 16 (emphasis added) (internal quotation marks omitted)

(quoting Mathis, 579 U.S. at 505–06).

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such as the jury instructions. 32 Here, the district court’s jury charge
on VICAR murder, Count Two, instructed that, “[u]nder New York
Law, murder requires proving that a person, one, caused the death of
a victim; and two, with the intent of causing the victim’s death or
another person’s death.” 33 The district court did not give an
instruction on Count Two regarding depraved indifference murder
or its statutory reference to recklessness as charged in the indictment.
Nor was the indictment sent to the jury. 34 It follows from these
instructions that the jury “necessarily found” that Davis intended to
cause death. 35

We therefore proceed to consider whether second-degree
intentional murder under N.Y. Penal Law § 125.25(1), of which Davis
was convicted as a predicate to VICAR murder, is a crime of violence
under § 924(c)’s force clause. We find that it is.

“There is no question that intentionally causing the death of
another person involves the use of force.” 36 This court, sitting en banc
in United States v. Scott, applied this principle to hold that first-degree

32 See id.
33 App’x 250; see also id. (“It is sufficient that at the moment of murder a person
intends to cause another person’s death.”).
34 Davis points the court to the jury instructions on Count Three in contending that

the district court instructed the jury on recklessness. However, the district court
there referenced “reckless disregard of the serious risk [Davis’s] actions posed to
another’s life” in providing the federal definition of murder as an element of the
§ 924(c) count, Count Three, not the VICAR murder count. The district court made
clear that the jury was to proceed to Count Three only if it found Davis guilty of
Count Two, VICAR murder, for which it instructed only on intentional murder.
35 Mathis, 579 U.S. at 505; see Pastore, 36 F.4th at 429 n.4 (finding that “the district

court’s jury instructions made clear that [the defendant] was convicted under
§ 125.25(1)” when, as here, they instructed that the defendant must have had “the
intent to cause the death of the victim or another person”).
36 Pastore, 36 F.4th at 429 (citing Castleman, 572 U.S. at 169).

10
manslaughter under New York law is a crime of violence. 37 That is
so because first-degree manslaughter, regardless of whether it may be
completed by commission or omission, “can only be committed by a
defendant who causes death—the ultimate bodily injury—while
intending to cause at least serious physical injury,” necessarily
requiring the use of physical force. 38 To hold otherwise “would
preclude courts from recognizing even intentional murder as a
categorically violent crime,” an untenable consequence. 39 The court
further noted, citing N.Y. Penal Law § 125.25(1) for comparison, that
first-degree manslaughter under New York law “is a homicide crime
second only to murder in its severity.” 40 It follows logically from this
precedent that second-degree intentional murder—a crime more
serious than first-degree manslaughter that definitionally requires the
use of force—is categorically a crime of violence under § 924(c).

We have so held following Scott. In Pastore, we held that a
substantive VICAR conviction predicated on attempted second-degree
murder under N.Y. Penal Law § 125.25(1) is categorically a crime of
violence for purposes of § 924(c). 41 Indispensable to this holding was
our acceptance, relying on Scott, that “second degree murder under
New York law is a crime of violence.” 42 And in Stone v. United States,
we found so directly, noting that “the elements of first-degree

37 990 F.3d 94, 98–101 (2d Cir.) (en banc) (holding that first-degree manslaughter
under N.Y. Penal Law § 125.20(1) is a crime of violence), cert. denied, 142 S. Ct. 397
(2021). As we noted in Stone v. United States, Scott’s analysis of a “violent felony”
under the ACCA is binding upon our analysis of a crime of violence under § 924(c)
when, as here, the crime of violence is against another person. 37 F.4th at 832 n.47.
38 Scott, 990 F.3d at 100.

39 Id.

40 Id. at 98–99 & n.1 (quoting N.Y Penal Law § 125.25(1)).

41 36 F.4th at 429–30.

42 Id. at 430.

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manslaughter [as found to be a crime of violence in Scott] and second-
degree murder [under N.Y. Penal Law § 125.25(1)] differ only with
respect to the intent element—whether the defendant had the intent
either to cause serious physical injury (manslaughter) or to cause
death (second-degree murder). . . . Thus, second-degree murder is
categorically a crime of violence under § 924(c).” 43 Therefore, Davis’s
conviction for VICAR murder, predicated on second-degree
intentional murder under N.Y. Penal Law § 125.25(1), categorically
qualifies as a crime of violence under § 924(c).

CONCLUSION

For the foregoing reasons and those set forth in the
accompanying summary order filed concurrently with this opinion,
we AFFIRM the judgment of the district court.

4337 F.4th at 833; see also Moore v. United States, No. 16-3715-PR, 2021 WL 5264270,
at *2 & n.1 (2d Cir. Nov. 12, 2021) (summary order) (“[O]ur case law makes clear
that intentional murder as defined in NYPL § 125.25(1) is itself a crime of violence.”
(citing Scott, 990 F.3d at 100)).

12