Yonathan Melaku pled guilty to and was sentenced on three offenses, including discharging a firearm during a crime of violence under 18 U.S.C. § 924(c). The predicate crime of violence that the § 924(c) charge was based upon was willfully injuring or committing depredation against government property under 18 U.S.C. § 1361. Melaku did not file a direct appeal, but he did later file a motion under 28 U.S.C. § 2255 to vacate his § 924(c) charge, arguing that § 1361 was not a valid predicate, which the district court denied.
Reviewing the case de novo, the Fourth Circuit reversed. As both the Eighth and Ninth Circuits have already held, § 1361 is not divisible—because willfully injuring property and committing degradation against it are not actions that are so dissimilar as to establish distinct crimes. Instead, they only describe alternate means by which damage or attempted damage to government property could occur.
Using the categorical approach, the single crime defined by § 1361 is not a “crime of violence” as defined by the force clause of § 924(c)(3)(A) because its least culpable conduct would not qualify. As the Tenth Circuit previously held, property can be damaged in a multitude of ways, many of which (like graffiti) do not require any degree of violence or “physical force.”
Judge Diaz dissented in part, arguing that the phrase “physical force” in the context of pure property crimes should mean any force that can injure property.
Appeal from the Eastern District of Virginia
Opinion by Keenan (Senior Circuit Judge), joined by Motz
Dissent in part by Diaz
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