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.
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