RICO is not a crime of violence for a 924(c) gun possession offense

 

A group of brothers, relatives, and friends who operated a drug trafficking organization in Bradenton, Florida, were charged and convicted of participating in a RICO conspiracy, a drug conspiracy, and gun crimes. The defendants raised two issues in this appeal. First, whether the RICO conspiracy qualified as a crime of violence under 18 U.S.C. 924(c) and second, whether one of the defendant’s sentence was procedurally and substantively reasonable.

The defendants challenging the 924(c) conviction. Section 924(c) which makes it a crime to use, carry, or discharge a firearm in relation to a crime of violence. The defendants argued here that the RICO conspiracy is not a “crime of violence”.   The statute defines a crime of violence as a felony offense that (a) has as an element the use, attempted use, or threatened use of physical force against the person or property of another (the elements clause) 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 (the residual clause).

 

Since the residual clause was struck by the U.S. Supreme Court as   unconstitutionally vague, only the elements clause is at issue. Applying the categorical approach, the court looked to whether the statutory elements of the predicate offense, here the RICO conviction, necessarily requires at a minimum the threatened or attempted use of force.

The court determined that a RICO conspiracy requires the government to prove that the defendants objectively manifested, through words or actions, an agreement to participate in the conduct of the affairs of the enterprise through the commission of two or more predicate crimes. A RICO conspiracy differs from a regular conspiracy because it may encompass a greater variety of conduct. The elements of a RICO conspiracy focus on the agreement to commit a crime which does not necessitate the existence of a threat or attempt to use force. The court determined that RICO conspiracy does not qualify as a crime of violence under section 924(c).

As to the reasonableness of the sentence, the defendant pled guilty to distribution of cocaine base, distributing less than 50 kilograms of marijuana and less than 28 grams of cocaine base. The parties reached an agreement that the guideline range should be 210 to 262 months. The court imposed a sentence of 1,440 months because it found the defendant participated in the Coleman murder and this was an aggravating factor. The court of appeals reversed the sentence because the sentencing court never clarified the actual guideline range that it had relied upon. The trial court appeared to treat the parties’ agreement as a motion for a downward variance which it had denied.

Additionally, it found the court’s finding that the defendant participated in the Coleman murder was clearly erroneous. It relied upon cell phone evidence which actually showed he could not have been present when the murder happened. The facts the court relied on were found to be incorrect and the sentence was procedurally unreasonable.