Assault with a dangerous weapon in aid of racketeering constitutes a “crime of violence” under the force clause in 18 U.S.C. § 924(c)(3)(A) because it requires the use, attempted use or threatened use of physical force against the person or property of another.
On Sept. 3, 2009, the petitioner pleaded guilty to three counts of the superseding indictment, including Count 15, which charged the petitioner with use, brandish and discharge of a firearm in relation to a crime of violence.
This matter comes before the court on the petitioner’s motion to vacate under 28 U.S.C. § 2255, filed on Nov. 18, 2019. The petitioner argues that his conviction on Count 15 should be vacated because of the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019). In Davis, the court held that the definition of a “crime of violence” in the “residual clause” is unconstitutionally vague. The definition of a “crime of violence” in the “force clause,” however, remains constitutionally valid after Davis.
The predicate “crime of violence” for the petitioner’s conviction on Count 15 was “Assault with a Dangerous Weapon in Aid of Racketeering Activity,” in violation of 18 U.S.C. § 1959(a)(3). Therefore, the question presented is whether “Assault with a Dangerous Weapon in Aid of Racketeering Activity” remains a constitutionally valid “crime of violence” under the force clause in 18 U.S.C. § 924(c)(3)(A).
The court concludes that “Assault with a Dangerous Weapon in Aid of Racketeering Activity,” as defined in 18 U.S.C. § 1959(a)(3), is a “crime of violence” that falls within the force clause. Because § 1959 does not define “assault,” “the court must look to the elements of the predicate offense as it is generically defined.”
The elements of common law assault are the “(1) willful attempt to inflict injury upon the person of another . . . or (2) a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Furthermore, § 1959(a)(3) “heightens this common law assault definition by additionally requiring the use of a dangerous weapon, that is, an object with the capacity to endanger life or inflict serious bodily harm.”
This definition qualifies as a crime of violence under the force clause, because it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Accordingly, because this predicate crime remains constitutionally valid, the petitioner’s conviction on Count 15 also remains valid.
Petitioner’s motion to vacate denied.
Ellis v. United States, Case No. 19-cv-115, April 10, 2020. EDVA at Newport News (Smith). VLW 020-3-207. 6 pp.