Offenses Committed With “Extreme” Recklessness Are Still 924(c) Crimes of Violence

US v. Manley: In 2009, Manley, who was part of a "street gang" in Newport News, pleaded guilty to (among other things) a pair of offenses under 924(c) for user of a firearm during a crime of violence and during a crime of violence causing death. In both instances the predicate crime of violence were violent crimes in aid of racketeering activity (VICAR), assault and murder. In the wake of the Supreme Court's decision in Davis, Manley filed a 2255 motion arguing that his two 924(c) convictions should be vacated because those predicates no longer could be classified as "crimes of violence." The district court disagreed and denied the motion.

On appeal, the Fourth Circuit affirmed the denial of Manley's 2255 motion. In both cases the court held that the relevant predicates were the Virginia versions and that those offenses could be committed with a sufficient mens rea to satisfy the Supreme Court's even more recent decision in Borden. In particular, the court noted that Borden, which held that reckless offenses could not be crimes of violence, explicitly left for later consideration whether the same conclusion was required for offenses committed with "extreme" recklessness. The court concluded that such offenses remain crimes of violence. In addition, the relevant Virginia assault offense had been defined by the state supreme court to require "the specific intent to cause severe and permanent injury."

Judge Niemeyer, in a part of the opinion joined by none of the other members of the panel, provided an alternate basis for concluding that the predicates were crimes of violence, that they were required to be undertaken "for a racketeering-related pecuniary purpose or with the purpose of improving his position in a racketeering enterprise," which therefore requires intentional conduct.

Speedy Trial Act Dismissal Required Where District Court Based Continuance On “Trial Preparation" Needs

US v. Velasquez: Velasquez was charged in a five-count drug indictment. At his arraignment he pleaded guilty to three of the counts, not guilty to the other two. There was some discussion of setting a trial date at the hearing, but nothing was resolved. In a post-hearing order, the court directed counsel to work with chambers on a trial date and that "speedy trial computation excluded by the court." Three months passed before the court set a trial date, excluding the delay under the "ends of justice." Velasquez, after securing new counsel, moved to dismiss the two remaining counts under the Speedy Trial Act. The district court denied the motion, explaining that the delays were necessary "for trial preparation." Velasquez was convicted at trial and sentenced to a total of 264 months in prison.

On appeal, the Fourth Circuit reversed the district court's denial of the Speedy Trial Act motion. The court noted that while trial prep needs can be a basis for an "ends-of-justice" continuance there was no evidence here that either party needed or requested additional time.  As a result, the court could not conclude that the initial arraignment order excluded time for that reason. In addition, the district court "had the opportunity to offer more clarity at the motion-to-dismiss hearing, but it gave none." As a result, the district court erred in denying the motion to dismiss. In addition, the court held that Velasquez was no estopped from raising the issue because he consented to initial representations from the Government about when it could go to trial.

CCE Drug-Related Murder Is Not “Covered Offenses” Under First Step Act

US v. Roane: In early 1992, Roane and his codefendant Tipton were "involved in several brutal murders and maimings within the Richmond area" while part of a drug-trafficking conspiracy. As a result, both ended up convicted of (among other things) substantive drug offenses and of capital murder in furtherance of a Continuing Criminal Enterprise, under 21 USC 848(e), and were sentenced to death. Both then filed for relief under the First Step Act, motions which the district court denied. The court concluded that the CCE convictions were not "covered offenses" for First Step Act purposes and declined to exercise its discretion to impose new sentences on the substantive drug counts.\

On appeal, the Fourth Circuit affirmed the denial of First Step Act Relief. Recall that earlier this year the court had held that CCE offenses sustained under 848(a) and (c) were not covered offenses. The court reached the same conclusion as to 848(e), rejecting the defendants attempts to link that offense to the substantive drug offenses (that were covered offenses). The 848(e) convictions were for separate substantive offenses, not merely penalty provisions, and the statutory range for them was not changed by the First Step Act. To hold otherwise would create "a stark circuit split." As to the substantive drug offenses, the court found no "procedural or substantive flaw" with the district court's denial of relief.