Summary
The Fourth Circuit held that the categorical approach does not apply to the "assault with a dangerous weapon" prong of the VICAR statute (18 U.S.C. § 1959). Because the statute uses the present-tense verb "assaults" and lacks categorical terms like "offense" or "elements," it requires only that a defendant's actual conduct constitute both the enumerated federal offense and a separate state-law violation. The court reversed the district court's dismissal of VICAR counts predicated on Virginia brandishing (Va. Code § 18.2-282), rejecting the argument that the state offense must be a categorical match to federal assault with a dangerous weapon.
Topics
Practice areas
Questions Presented
- Whether the categorical approach applies to the VICAR statute's requirement that a defendant's conduct constitute an enumerated federal offense (assault with a dangerous weapon) and also violate state law (Virginia brandishing).
Holdings
- The categorical approach does not apply to the VICAR statute under the language at issue. The statute requires only that the defendant's actual conduct, as charged, constitute both the federal offense and the state offense.
Key quotations
“Nothing in this language suggests that the categorical approach should be used to compare the enumerated federal offense of assault with a dangerous weapon with the state offense of Virginia brandishing.” (at 11-12)
“The VICAR statute includes no language suggesting that all violations of a state law also must qualify as the enumerated federal offense, a result that would be required under the categorical approach.” (at 12)
“We will not employ this approach, a judicially created construct, in a manner contrary to 'Congress' manifest purpose.'” (at 14)
“We therefore hold that the district court erred in dismissing the VICAR-brandishing counts.” (at 15)
Factual background
The defendants were members of the Bloods gang in Danville, Virginia. They were charged with various offenses, including three VICAR counts alleging assault with a dangerous weapon (by shooting or shooting at victims) in violation of Virginia's brandishing statute. The district court dismissed those counts based on the categorical approach.
Procedural history
The defendants were indicted on VICAR counts including assault with a dangerous weapon based on Virginia brandishing. They moved to dismiss, arguing that Virginia brandishing is not a categorical match to federal assault with a dangerous weapon. The district court agreed and dismissed the counts. The government appealed.
Remand instructions
Reinstate the dismissed VICAR-brandishing counts (Counts 4, 8, and 14) and conduct further proceedings consistent with the opinion.