PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-4609 UNITED STATES OF AMERICA, Plaintiff - Appellant, v. TREDARIUS JAMERIQUAN KEENE, a/k/a Bubba, a/k/a Bubs; MONTEZ LAMAR ALLEN, a/k/a Doc Milla; JAVONTAY JACQUIS HOLLAND, a/k/a Tay, a/k/a Reckless; JALEN CORMARRIUS TERRY, a/k/a Fats, Defendants - Appellees. Appeal from the United States District Court for the Western District of Virginia, at Danville. Michael F. Urbanski, Chief District Judge. (4:18-cr-00012-MFU-RSB-3; 4:18- cr-00012-MFU-RSB-4; 4:18-cr-00012-MFU-RSB-5; 4:18-cr-00012-MFU-RSB-8) Argued: January 31, 2020 Decided: April 9, 2020 Before KEENAN, HARRIS, and QUATTLEBAUM, Circuit Judges. Reversed and remanded by published opinion. Judge Keenan wrote the opinion, in which Judge Harris and Judge Quattlebaum joined. ARGUED: Michael Andrew Baudinet, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellant. Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellees. ON BRIEF: Thomas T. Cullen, United States Attorney, Laura Day Rottenborn, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellant. Mark D. Haugh, HAUGH & PREAS, PLC, Marion, Virginia, for Appellee Tredarius Keene. Thomas J. Bondurant, Jr., Monica Taylor Monday, GENTRY LOCKE RAKES & MOORE, Roanoke, Virginia; Jacqueline M. Reiner, JACQUELINE M. REINER, PLLC, Richmond, Virginia, for Appellee Javontay Holland. Seth C. Weston, LAW OFFICE OF SETH C. WESTON, PLC, Roanoke, Virginia, for Appellee Montez Allen. 2 BARBARA MILANO KEENAN, Circuit Judge: This appeal requires us to interpret the text of 18 U.S.C. § 1959, which imposes criminal penalties for committing “violent crimes in aid of racketeering activity” (the VICAR statute). The VICAR statute defines prohibited conduct by reference to enumerated federal offenses, but also requires that the conduct be “in violation of the laws of any State or the United States.” 18 U.S.C. § 1959. Relevant to this appeal, the defendants were charged under the VICAR statute in three counts with the enumerated federal offense of committing assault with a dangerous weapon, in violation of the Virginia prohibition against brandishing a firearm set forth in Virginia Code § 18.2-282 (Virginia brandishing). Because the VICAR statute requires the commission of enumerated federal offenses as well as separate state or federal crimes, the defendants assert that we must apply the categorical approach articulated in Taylor v. United States, 495 U.S. 575 (1990), to determine whether Virginia brandishing is a “categorical match” to the enumerated federal offense of assault with a dangerous weapon. According to the defendants, if the Virginia offense “sweeps more broadly” than the enumerated federal offense, the crimes are not a categorical match and the defendants cannot be convicted of VICAR assault with a dangerous weapon based on Virginia brandishing. See Omargharib v. Holder, 775 F.3d 192, 196-97 (4th Cir. 2014). In the district court, the government agreed with the defendants that a comparison of the federal and state offenses was required without any consideration of the defendants’ actual conduct. In accord with the parties’ agreed view, the district court did not consider the defendants’ conduct but instead applied the 3 categorical approach. The court concluded that Virginia brandishing was ...
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