No Categorical Approach for VICAR Predicates

US v. Keene: Keene and his codefendants were charged with (among other things) three counts of committing violent crimes in aid of racketeering activity (VICAR), particularly the federal offense of assault with a dangerous weapon and Virginia offense of brandishing a firearm. Prior to trial they moved to dismiss those counts, arguing that applying a categorical approach (which the Government agreed was required) the federal and state offenses did not match. The district court agreed and dismissed those counts.

On appeal, the Fourth Circuit reversed the district court. After scolding the Government for reversing its position on whether the categorical approach was required (but nonetheless allowing it to do so without hindrance), the court concluded that the categorical approach was not required for VICAR predicate offenses. The court reached that conclusion because the language of the VICAR statute did not include the same kind of “textual clues” as other statues where courts had concluded that the categorical approach was required, such as terms like “offense,” “elements,” or “conviction.”