Federal Defenders of New York Second Circuit Blog

crime of violence

Second Circuit: Postal Robbery And Aggravated Postal Robbery, 18 U.S.C. § 2114(a), Even On Pinkerton Theory Of Liability, Are 18 U.S.C. § 924(c) Crimes Of Violence.

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In Pannell v. United States, No. 21–2849 (2d Cir. Aug. 28, 2024) (Menashi, joined by Raggi and Wesley), the Second Circuit held that postal robbery and aggravated postal robbery, 18 U.S.C. § 2114(a), even pursuant to a Pinkerton theory of liability, are 18 U.S.C. § 924(c) crimes of violence. A jury convicted Pannell of conspiracy … Read more

Attempted Murder is a Crime of Violence (For Now)

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In yesterday’s United States v. Pastore, the Circuit (Walker, Sullivan, Nathan, C.JJ.) held attempted murder in aid of racketeering – specifically, attempted New York murder – is a “crime of violence” under 18 U.S.C. § 924(c). The Circuit reasoned that, because murder requires someone to intentionally “’cause the death of another person,’” Slip Op. at … Read more

Second Circuit finds that VICAR murder may categorically qualify as a crime of violence

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This week, in United States v. Davis, No. 21-1486-cr (2d Cir. July 18, 2023), the Circuit holds that murder in aid of racketeering (also known as “VICAR murder”), 18 U.S.C. § 1959(a)(1), may categorically qualify as a “crime of violence” for purposes of 18 U.S.C. §§ 924(c) and 924(j)(1). In Davis, the defendant argued that … Read more

The Second Circuit holds that, despite the erroneous jury instructions defining the “crime of violence” required for a § 924(c) conviction — allowing the jury to convict the Petitioners based on predicate offenses that didn’t necessarily require the actual or threatened use of force — the Petitioners failed to show that the instructional errors “resulted in prejudice that would entitle them to the relief they [sought] under 28 U.S.C. § 2255.” Nardino Colotti, et al. v. United States, Nos. 21-932(L), 21-937(CON), 21-950(CON), 21-992(CON), 21-1548(CON), __ F.4th ____ (2d Cir. June 21, 2023) (C.J.J.’s Leval, Parker, Menashi).

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Background This is an appeal from a district court judgment denying the Petitioners’ motions, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct their convictions under 18 U.S.C. § 924(c).  The Circuit affirms the district court. The Petitioners were convicted after a jury trial — conducted “in late 2005 and early 2006″ … Read more

Kidnapping is Not a Crime of Violence

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Most courts (and the government) have for a while acknowledged that kidnapping is not a crime of violence given that it can be accomplished through deception and thus without physical force.  The Second Circuit has now acknowledged this too, holding in US v. Eldridge that NY kidnapping in aid of federal racketeering isn’t a 924(c) … Read more

The Supreme Court throws a wrench into § 1326(d) motions in the Second Circuit

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In United States v. Palomar-Santiago, No. 20-437 (May 24, 2021), Justice Sotomayor ruled for a unanimous Court that as a matter of statutory interpretation (1) each of 8 U.S.C. § 1326(d)’s three requirements must be satisfied; and that (2) a showing by the defendant that the deportation proceeding was “fundamentally unfair” under § 1326(d)(3) — … Read more

Second Circuit Holds that Attempted Hobbs Act Robbery Is a § 924(c) “Crime of Violence.”

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The Circuit ruled today in United States v. McCoy, No. 17‑1315(L) (Kearse, Parker, and Sullivan, JJ.), that the crime of attempting to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), remains a “crime of violence” under 18 U.S.C. § 924(c), even after United States v. Davis, 139 S. Ct. 2319 (2019). The Circuit … Read more

Attempted Bank Robbery: Good News and Bad News

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Do you have a client challenging a charge or conviction for attempted bank robbery in violation of 18 U.S.C. § 2113(a) and/or gun possession in relation to that crime in violation of § 924(c)?  Well, there’s good news and bad news. First, the bad news: a two-judge panel of the Second Circuit has ruled attempted … Read more

Circuit Will Decide En Banc Whether New York First-Degree Manslaughter Is a “Violent Felony” and “Crime of Violence.”

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In United States v. Scott, 954 F.3d 74 (2d Cir. Mar. 31, 2020), a divided panel held that New York first-degree manslaughter is neither a predicate “violent felony” under the Armed Career Criminal Act nor a “crime of violence” under the Career Offender Guideline because it can be committed by complete inaction and therefore without … Read more