United States v. Antonio Simmons (4th Cir. August 2021)

The Federal Docket

September 7, 2021

ACCA/RICO – A conviction for aggravated RICO conspiracy is not categorically a “crime of violence” under the ACCA.

After a jury trial, Defendants Antonio Simmons, Nathaniel Mitchell, and Malek Lassiter were convicted on multiple counts of RICO, VICAR, and 18 U.S.C. § 924(c) violations. Defendants moved to set aside the verdict as to one of the § 924(c) counts, which had used an “aggravated” RICO conspiracy count as its predicate, and the district court granted the motion. The Government appealed the decision to set the count aside, and the Defendants cross-appealed, arguing various errors in the evidentiary rulings, jury instructions, and sufficiency of evidence for their convictions.

In a complex holding, the Fourth Circuit denied the Government’s appeal, and found for the Defendants’ in some of their cross-claims, ultimately reversing and vacating seven convictions and remanding the case.

The Government argued that since 18 U.S.C. § 1963(a) increases the maximum penalty for a RICO conspiracy to life imprisonment under certain conditions, it renders the RICO conspiracy statute divisible into “generic” and “aggravated” forms per Apprendi and its progeny; and therefore the modified categorical approach must be applied to determine if a charged count is a crime of violence.

Reviewing this case de novo, the Fourth Circuit found merit to this argument but also to the idea that Apprendi and the Government’s other cases applied only to a Fifth and Sixth Amendment understanding of an “element” and left open the possibility that a “sentencing enhancement” might be held to be different for purposes of deciding on the elements comprising the underlying crime of conviction. The Circuit Court declined to decide this issue, however, as under either the categorical approach or the modified version, the count at issue was not a crime of violence. A RICO conspiracy can be “aggravated” by § 1963(a) into carrying a life sentence without involving a crime that requires the use, attempted use, or threatened use of physical force.

The Circuit Court then reversed all Defendants’ VICAR convictions because the District Court’s instructions incorrectly identified and described a different state law predicate than the one that was actually charged in the indicted counts. Defendants did not object to the instruction, but it fails plain error review. The jury instructions constructively amended the indictment by broadening the possible bases for conviction. This was a structural error, and so harmless error review does not apply because it was per se prejudicial.

The Defendants also challenged the sufficiency of the evidence in several of the counts. Viewing the evidence in the light most favorable to the Government, the Circuit court nevertheless found that there was not substantial evidence to support one of the VICAR attempted murder counts and its affiliated § 924(c) charge. Defendants took only a preparatory act, not an overt one, by driving around and looking for the allegedly intended victim.

Appeal from the Eastern District of Virginia
Opinion by Agee, joined by Wynn
Concurrence in part and in judgement by Richardson

Click here to read the opinion

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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