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 …
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