PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-6285

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CARLOS EMANUEL KINARD,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at 

Charlotte. Graham C. Mullen, Senior District Judge. (3:93−cr−00215−GCM−6; 

3:21−cv−00161−GCM)

Argued: October 25, 2023 Decided: February 20, 2024

Before RUSHING and HEYTENS, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by published per curiam opinion. Senior Judge Keenan wrote a separate

concurring opinion, in which Judge Heytens joined.

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Raleigh, North Carolina, for Appellant. Anthony J. Enright, OFFICE OF THE UNITED 

STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: G. Alan 

DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Raleigh, North Carolina, for Appellant. Dena J. King, United States Attorney, OFFICE 

OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. 

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PER CURIAM:

The issue in this appeal is whether assault with a dangerous weapon under 18 U.S.C. 

§ 1959(a)(3), in violation of the North Carolina statutory crime of assault with a deadly 

weapon, N.C. Gen Stat. § 14-33(c)(1), requires a mens rea sufficiently culpable to qualify 

as a “crime of violence” under 18 U.S.C. § 924(c). Based on our recent decision in United 

States v. Thomas, 87 F.4th 267 (4th Cir. 2023), we hold that this offense is a “crime of 

violence” and we affirm the district court’s judgment.

I.

In 1994, a jury convicted Carlos Emanuel Kinard on twelve counts related to a drug 

and racketeering conspiracy. Count 33 charged Kinard with use of a firearm during and in 

relation to a “crime of violence” under § 924(c) (the § 924(c) conviction). The predicate 

offense for the § 924(c) conviction arose under the violent crimes in aid of racketeering 

statute (VICAR), for VICAR assault with a dangerous weapon, 18 U.S.C. § 1959(a)(3) (the 

predicate VICAR assault offense). The predicate VICAR assault offense, in turn, 

incorporated the North Carolina statutory crime of assault with a deadly weapon (the North 

Carolina assault offense), N.C. Gen Stat. § 14-33(c)(1).1

 The district court imposed a 20-

1 At the time Kinard was prosecuted for this offense, the relevant statutory 

subsection was N.C. Gen. Stat. § 14-33(b)(1). See N.C. Laws 1991, ch. 525, § 1 (effective 

Oct. 1, 1991). For simplicity, we refer in this opinion to the materially identical current 

version of this provision. See N.C. Gen. Stat. § 14-33(c)(1). 

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year consecutive sentence for the § 924(c) conviction,2 and we affirmed Kinard’s judgment 

of conviction on direct appeal. United States v. Padgett, 78 F.3d 580 (4th Cir. 1996) 

(Table).

In 2016, Kinard moved to vacate his sentence under § 2255, contending that the 

§ 924(c) conviction was invalid because the predicate VICAR assault offense was not a 

“crime of violence” after Johnson v. United States, 135 S. Ct. 2551 (2015) (holding that 

“the residual clause” of the Armed Career Criminal Act, § 924(e)(2)(B)(ii), is 

unconstitutionally vague). The district court rejected Kinard’s motion as untimely and, in 

the alternative, as meritless, concluding that the predicate VICAR assault offense qualified 

as a “crime of violence” under § 924(c)’s “force clause” because that offense had as an 

element “the use, attempted use, or threatened use of physical force against the person or 

property of another.” 18 U.S.C. § 924(c)(3)(A).

In 2019, Kinard moved this Court for authorization to file a successive habeas 

petition based on the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 

(2019) (holding that the residual clause of § 924(c) is unconstitutionally vague). After we 

granted Kinard authorization to file the successive petition, he asked the district court to 

vacate his § 924(c) conviction based on the new rule of constitutional law set forth in Davis.

2 On the remaining eleven counts of conviction, the court imposed seven concurrent 

life sentences, two concurrent 20-year sentences, one consecutive 10-year sentence, and 

one additional consecutive 20-year sentence. The district court later reduced Kinard’s 

sentences for three offenses not at issue here under section 404 of the First Step Act of 

2018. See Pub L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018). 

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In the district court, Kinard argued that the predicate VICAR assault offense is not 

categorically a “crime of violence” for two reasons. First, Kinard argued that under the 

decision in Davis, the predicate VICAR offense could be committed without the use, 

attempted use, or threatened use of physical force against another. Second, Kinard 

contended that the predicate VICAR assault offense could be committed negligently or 

recklessly and, thus, did not qualify as a “crime of violence” based on the Supreme Court’s 

decision in Borden v. United States, 593 U.S. 420 (2021) (plurality opinion) (holding that 

a crime with a mens rea of recklessness did not qualify as a violent felony under the Armed 

Career Criminal Act, 18 § U.S.C. 924(e)(2)(B)(i)). The district court denied Kinard’s 

motion, holding that VICAR assault with a dangerous weapon is categorically a “crime of 

violence” because the common law definition of “assault” satisfies the § 924(c) force 

clause. Kinard timely appealed.

II.

On appeal, Kinard contends that the predicate VICAR assault crime, which 

incorporated the North Carolina assault offense, does not qualify as a § 924(c) “crime of 

violence” because it can be committed with a mens rea of “culpable negligence.” We 

review de novo the legal question whether an offense qualifies as a § 924(c) “crime of 

violence.” United States v. Mathis, 932 F.3d 242, 263 (4th Cir. 2019).

Under § 924(c), “any person who, during and in relation to any crime of 

violence . . . , uses or carries a firearm, or who, in furtherance of any such crime, possesses 

a firearm . . . shall be punished.” 18 U.S.C. § 924(c)(1)(A). Accordingly, “an essential 

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element of [Kinard’s § 924(c)] conviction was that his conduct was ‘in relation to [a] crime 

of violence.’” United States v. McDaniel, 85 F.4th 176, 184 (4th Cir. 2023). A “crime of 

violence,” in turn, is “an offense that is a felony” and “has as an element the use, attempted 

use, or threatened use of physical force against the person or property of another.” 18 

U.S.C. § 924(c)(3)(A) (the force clause).

To assess whether an offense qualifies as a “crime of violence” under the force 

clause, courts generally apply the categorical approach. McDaniel, 85 F.4th at 184. Under 

that approach, the court does not consider the facts of a defendant’s conduct, and instead 

evaluates whether the elements of the predicate offense “necessarily involve[] the 

defendant’s ‘use, attempted use, or threatened use’” of force. See Borden, 593 U.S. at 424 

(citation omitted). An offense qualifies as a “crime of violence” under § 924(c)(3) only 

when this force is employed with a mens rea greater than recklessness. Id. at 432; Thomas, 

87 F.4th at 270. 

In limited circumstances, the applicable statute may create multiple offenses, only 

some of which qualify as “crime[s] of violence.” McDaniel, 85 F.4th at 184. For such 

“divisible” statutes, such as the VICAR statute in this case, we apply the modified 

categorical approach. Id.; Thomas, 87 F.4th at 272. This “tool” adds an additional, 

foundational step to the categorical approach, during which the court may review certain 

underlying documents, such as the indictment, jury instructions, or plea agreement and 

colloquy, to identify “which of the statute’s alternative elements formed the basis of the 

defendant’s prior conviction.” Thomas, 87 F.4th at 272 (citation omitted). After 

completing this step, the court returns to the traditional categorical approach to evaluate 

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whether that offense qualifies as a “crime of violence” under § 924(c). United States v. 

Simmons, 11 F.4th 239, 254 (4th Cir. 2021) (citation omitted).

We recently applied these principles in evaluating whether a different VICAR 

offense, VICAR assault with a dangerous weapon in violation of Virginia Code §§ 18.2-

53.1 and 18.2-282, qualifies as a “crime of violence.” Thomas, 87 F.4th at 269, 274. In 

Thomas, we explained that one of the elements of a VICAR assault offense is that the 

assault “be committed ‘as consideration for the receipt of, or as consideration for a promise 

or agreement to pay, anything of pecuniary value from’ a racketeering enterprise or ‘for 

the purpose of gaining entrance to or maintaining or increasing position’ in the racketeering 

enterprise” (the purpose element). Id. at 273 (quoting 18 U.S.C. § 1959(a)). We held that 

this element of a VICAR assault offense, which requires “a deliberate choice . . . to carry 

out the assault,” “satisfies” the requirement in Borden that a “crime of violence” “involve 

purposeful or knowing conduct.” Id. (omission added).

Our holding in Thomas, that VICAR’s purpose element satisfies the mens rea 

requirement for a § 924(c) “crime of violence,” resolves the present appeal.3

 The predicate 

VICAR assault offense, which incorporated the North Carolina assault offense, had as an 

element that Kinard acted with one or more of the purposes set forth in § 1959(a). 

Therefore, under Thomas, the predicate VICAR assault offense in this case met Borden’s

requirement that a “crime of violence” “involve purposeful or knowing conduct.” Thomas, 

3 Because our holding in Thomas regarding the purpose element resolves Kinard’s 

appeal, we do not reach the government’s alternative argument that the “enumerated 

federal offense” of assault with a dangerous weapon requires a sufficiently culpable mens 

rea for a “crime of violence” under § 924(c). See Thomas, 87 F.4th at 273.

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87 F.4th at 274. Accordingly, we hold that the predicate VICAR assault offense was a 

“crime of violence” under the force clause of 18 U.S.C. § 924(c)(3)(A), and we affirm the 

district court’s judgment.

AFFIRMED

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BARBARA MILANO KEENAN, Senior Circuit Judge, with whom JUDGE HEYTENS 

joins, concurring:

I join in the present judgment because I agree that our decision in United States v. 

Thomas, 87 F.4th 267 (4th Cir. 2023), which issued after briefing and argument in this 

case, controls the outcome of Kinard’s appeal. Nevertheless, I write separately to relay my 

concerns with the resulting analysis. 

I.

I begin by outlining our usual approach to determining whether a VICAR offense 

categorically qualifies as a “crime of violence” under § 924(c). To sustain a conviction for 

VICAR assault, the government must show:

(1) that there [is] an “enterprise,” as defined in § 1959(b)(2); (2) that the 

enterprise [is] engaged in “racketeering activity,” as defined in 18 U.S.C. 

§ 1961; (3) that the defendant [] committed an assault “with a dangerous 

weapon” or “resulting in serious bodily injury”; (4) that the assault have 

violated state or federal law; and (5) that the assault [was] committed for a 

designated pecuniary purpose or “for the purpose of gaining entrance to or 

maintaining or increasing position in [the] enterprise” [(the purpose 

element)]. 

United States v. Manley, 52 F.4th 143, 147 (4th Cir. 2022) (quoting 18 U.S.C. § 1959(a)). 

Before Thomas, this Court’s “crime of violence” analysis of predicate VICAR offenses 

started and ended with an evaluation of the fourth requirement, namely, whether the 

incorporated state or federal offense satisfied the requirements of the § 924(c) force clause. 

See, e.g., id. at 148 (“To properly charge a VICAR assault, . . . the government must 

identify a specific state or federal law that the defendant violated by engaging in the 

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conduct underpinning the VICAR offense.”); United States v. Mathis, 932 F.3d 242, 264 

(4th Cir. 2019). Had we followed that approach in this case, we would have concluded 

that the incorporated offense of assault with a deadly weapon under North Carolina law, 

N.C. Gen. Stat. § 14-33(c)(1), which can be committed with “culpable negligence,” does 

not satisfy the mens rea requirement for a “crime of violence” under the § 924(c) force 

clause. See, e.g., United States v. Simmons, 917 F.3d 312, 321 (4th Cir. 2019) (holding 

that a similar North Carolina assault offense, like “any of the different forms of North 

Carolina assault,” can be proved with a mens rea of culpable negligence); Borden v. United 

States, 593 U.S. 420, 444 (2021) (plurality opinion).

In Thomas, however, we became the first of our sister circuits to rely on the final 

element of a substantive VICAR assault offense, namely, the purpose element, to establish 

the mens rea necessary for a predicate VICAR assault offense to qualify as a “crime of 

violence” under § 924(c). 87 F.4th at 273–74. We also held, citing United States v. Keene, 

955 F.3d 391 (4th Cir. 2020), that for every charge of VICAR assault with a dangerous 

weapon the government must prove as an element the enumerated federal offense of 

“assault with a dangerous weapon.” 87 F.4th at 274. I set forth below my concerns with 

both of these points.

A.

Initially, I disagree that the purpose element of the VICAR statute necessarily 

satisfies the mens rea requirement under Borden. In my view, this reading contradicts the 

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textual requirements of the force clause and, as a result, improperly categorizes as “crimes 

of violence” offenses that otherwise would not qualify as such under Borden. 

To provide context for the mens rea required for a § 924(c) crime of violence under 

the force clause, I first outline the Supreme Court’s holding in Borden. There, the Court 

held that under the materially identical § 924(e) force clause, an offense does not qualify 

as a “violent felony” if the offense can be committed with a mens rea of recklessness.1

 593 

U.S. at 429. Like the § 924(c) force clause, a violent felony under § 924(e) must have “as 

an element the use, attempted use, or threatened use of physical force against the person of 

another.” Id. at 424 (quoting 18 U.S.C. § 924(e)(2)(B)(i)).

Consistent with Supreme Court precedent, the parties in Borden agreed that the term 

“use” in the § 924(e) force clause requires the “‘volitional’ or ‘active’ employment of 

force.” Id. at 430 (quoting Voisine v. United States, 579 U.S. 686, 692–94 (2016)). But 

the parties disputed the meaning of the phrase “against the person of another” (the “against” 

clause). Id. at 430, 443. The defendant argued that the “against” clause requires that the 

volitional force be directed at an intended target, while the government argued that the 

clause refers merely to the recipient of the force. Id. at 430. 

1 The primary difference between the force clause in § 924(c) and the § 924(e) force 

clause is that the § 924(c) force clause also applies to crimes against property. Compare 

18 U.S.C. § 924(c)(3)(A) (defining a “crime of violence” as a felony having “as an element 

the use, attempted use, or threatened use of physical force against the person or property

of another” (emphasis added)), with id. § 924(e)(2)(B)(1) (defining a violent felony as an 

offense having “as an element the use, attempted use, or threatened use of physical force 

against the person of another”). Since the Supreme Court issued Borden, we have applied 

the Court’s holding to the § 924(c) force clause. See, e.g., Manley, 52 F.4th at 147.

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The Court adopted the defendant’s interpretation, reasoning that the term “against” 

refers to the “conduct’s conscious object” and, thus, that the “against” clause incorporates 

a required mens rea greater than recklessness. Id. at 430–31. In support of its conclusion, 

the Court in Borden provided helpful scenarios comparing the conduct of three individuals 

who, with varying degrees of mental state, strike a pedestrian while driving a car.

In the Court’s description, the first driver purposefully aims the car at the pedestrian, 

desiring to hit him. Id. at 432. The second driver sees the pedestrian in his path but speeds 

ahead anyway, knowing that the car will hit the pedestrian. Id. And the third driver, late 

to work, recklessly runs a red light and hits a pedestrian whom he did not see. Id.

The Court explained that the first two drivers “consciously deployed the full force 

of an automobile at another person” and thus “used physical force against the person of 

another” within the meaning of the force clause. Id. According to the Court, the third 

driver caused the same harm, namely, “making contact with another person,” and 

endangered others by consciously disregarding the real risk of that harm. Id. However, 

the Court explained that the third driver had not used force “against” another person within 

the meaning of the force clause, because his conduct was “not opposed to or directed at 

another.” Id. (emphasis added).

Borden thus establishes that a predicate “crime of violence” under the materially 

identical § 924(c) force clause must involve force that not only is volitional but, also, is 

consciously directed at a target. Id. at 430–32; Thomas, 87 F.4th at 270 (explaining that 

Borden applies to a “crime of violence” analysis under § 924(c)); see Somers v. United 

States, 15 F.4th 1049, 1053 (11th Cir. 2021) (certification order) (explaining that pursuant 

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to Borden, a “crime of violence” under § 924(c) requires “both the general intent to 

volitionally take the action of using, attempting to use, or threat[en]ing to use force and 

something more: that the defendant direct the action at a target, namely another person” 

(emphasis added)). In other words, the predicate offense must require both that the 

individual actively employ the force that resulted in the harm, and that the individual direct 

that action at an intended target with a mens rea greater than recklessness. See Borden, 

593 U.S. at 430–32.

Turning to the mens rea required under the purpose element of the VICAR statute, 

to satisfy this element the government must show that the defendant committed the assault 

for “a designated pecuniary purpose” or “for the purpose of gaining entrance to or 

maintaining or increasing position in [the] enterprise.” Manley, 52 F.4th at 147 (quoting 

18 U.S.C. § 1959(a)). We have explained that the government need not prove a “nexus” 

between the offense and the racketeering activity to satisfy this “general purpose” 

requirement, and that the government can prove this element by showing that the defendant 

committed the incorporated state or federal offense “because he knew it was expected of 

him by reason of his membership in the enterprise or that he committed it in furtherance of 

that membership.” United States v. Zelaya, 908 F.3d 920, 927 (4th Cir. 2018) (citation 

omitted).

In my view, the mens rea required under the force clause thus differs from the mens 

rea required under the purpose element in that the latter does not require a showing that the 

defendant knowingly directed force at a target. To illustrate this distinction, consider a 

defendant riding in a car late at night who sees a rival gang member’s empty car parked on 

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a deserted street in the defendant’s gang’s territory. The defendant fires a “warning shot” 

out his car’s window. As he passes the empty car, the defendant sees that the bullet has hit 

and injured a rival gang member, whom the defendant had not seen standing nearby. When 

the defendant returns to his gang’s headquarters, he brags to his superiors that he shot the 

rival gang member.

In that scenario, the defendant purposefully fired the gun, but he did not 

purposefully hit the individual he had not seen. Instead, in firing the gun and injuring a 

person, the defendant “pa[id] insufficient attention to the potential application of force” 

and “consciously disregard[ed] a substantial and unjustifiable risk.” Borden, 593 U.S. at 

427, 432. In other words, the defendant in this example recklessly applied force to an 

individual, rather than directing force at a target.

Nevertheless, under our precedent, the defendant likely committed the assault “for 

the purpose of gaining entrance to or maintaining or increasing position in [the] enterprise,” 

as required to satisfy the purpose element of a substantive VICAR offense. Manley, 52 

F.4th at 147 (quoting 18 U.S.C. § 1959(a)(3)); United States v. Umaña, 750 F.3d 320, 335 

(4th Cir. 2014) (explaining that facts supporting the purpose element may include activity 

that occurs after commission of the crime, such as a defendant who “return[s] to . . . 

headquarters to boast about his exploits with a mind toward advancement”). In my view, 

as illustrated by the above scenario, proof of a “gang-related motive” under the purpose 

element does not, of itself, establish that the defendant consciously directed any force 

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“against” a target, as required to qualify that offense as a § 924(c) “crime of violence.”

Borden, 593 U.S. at 430–31.

2

B.

Although this Court’s conclusion in Thomas regarding the purpose element resolves 

the merits of Kinard’s appeal, I briefly address the additional conclusion in Thomas that 

for every charge of VICAR assault with a dangerous weapon the government must prove 

as an element the enumerated federal offense of assault with a dangerous weapon. 87 F.4th 

at 274. The government also made this argument in the present case and, in my view, both 

the government’s argument here and our holding in Thomas undermine the plain text of 

the VICAR statute.

18 U.S.C. § 1959(a) provides:

Whoever, as consideration for the receipt of, or as consideration for a promise 

or agreement to pay, anything of pecuniary value from an enterprise engaged 

in racketeering activity, or for the purpose of gaining entrance to or 

maintaining or increasing position in an enterprise engaged in racketeering 

2 I acknowledge that the enumerated federal offenses reflect the types of crimes that 

society generally considers to be “violent.” And in many cases, conduct that can be 

prosecuted under VICAR will also constitute a “crime of violence” under § 924(c). Indeed, 

when Congress enacted the VICAR statute, Congress may have intended that VICAR 

crimes generally would qualify as “crime[s] of violence” under the broader reach of the 

§ 924(c) residual clause. See 18 U.S.C. § 924(c)(3)(B) (including as a “crime of violence” 

any felony that, “by its nature, involves a substantial risk that physical force against the 

person or property of another may be used in the course of committing the offense”). But 

the Supreme Court since has invalidated that provision, leaving the force clause as the only 

means for a predicate offense to qualify as a “crime of violence” under § 924(c). Davis, 

139 S. Ct. at 2324. And in my view, it is not this Court’s prerogative to artificially expand 

the scope of the force clause to cover offenses that no longer qualify as “crime[s] of 

violence” after Davis. See United States v. Taylor, 142 S. Ct. 2015, 2023 (2022) (rejecting 

a broad reading of the force clause because “it would only wind up effectively replicating 

the work formerly performed by the residual clause, collapsing the distinction between 

them, and perhaps inviting similar constitutional questions along the way”).

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activity, murders, kidnaps, maims, assaults with a dangerous weapon, 

commits assault resulting in serious bodily injury upon, or threatens to 

commit a crime of violence against any individual in violation of the laws of 

any State or the United States, or attempts or conspires so to do, shall be 

punished.

18 U.S.C. § 1959(a) (emphasis added). Under a natural reading of this provision, the 

modifier “in violation of the laws of any State or the United States” qualifies each 

enumerated federal offense. See Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1169 (2021) 

(explaining that the series-qualifier canon of statutory construction “generally reflects the 

most natural reading of a sentence”); Lockhart v. United States, 577 U.S. 347, 352 (2016) 

(suggesting that this canon would apply to a “simple and parallel” list of items that are 

“often cited together”). Thus, the phrase “assaults with a dangerous weapon” simply 

identifies the relevant generic federal offense and does not add an element of proof to the 

VICAR crime charged in the indictment. See Manley, 52 F.4th at 148 (“[T]he government 

must identify a specific state or federal law that the defendant violated by engaging in the 

conduct underpinning the VICAR offense.”).

Consistent with this plain meaning of the statute, in our prior cases addressing 

VICAR offenses we generally have not identified the enumerated federal offense as a 

separate element. See United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994); see also 

Zelaya, 908 F.3d at 926–27; United States v. Simmons, 11 F.4th 239, 271 (4th Cir. 2021). 

In Thomas, however, this Court, citing Keene, stated that “one element of a VICAR 

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conviction is that the defendant committed the enumerated federal offense.”3

 See 87 F.4th 

at 274 (citing Keene, 955 F.3d at 393); id. at 272–73 (outlining the elements of a VICAR 

assault offense).

In my view, our decision in Keene does not bear on whether there is a separate 

generic offense element. In that case, we considered an interlocutory appeal after the 

district court granted the defendants’ motion to dismiss three substantive VICAR charges. 

955 F.3d at 392. On appeal, we were asked to decide whether the elements of the 

incorporated state offense for the VICAR assault charges must “categorically match” the 

elements of the “enumerated federal offense” of assault with a dangerous weapon. Id. We 

rejected the elements-to-elements comparison of the categorical approach in that context, 

and instead held that a defendant may be convicted of VICAR assault “when, by his 

conduct, he ‘assaults’ another person with a dangerous weapon ‘in violation of’ the state 

law charged in the indictment.” Id. at 398 (emphasis added).

Addressing the effect of the enumerated federal offenses, we explained that the 

defendant’s “presently charged conduct” must “constitute an assault under federal law, 

3 We also stated in Manley that the third “element” of a substantive VICAR assault 

offense is “that the defendant have committed an assault ‘with a dangerous weapon.’” 

Manley, 52 F.4th at 147. But in accordance with this Court’s understanding of VICAR, 

for the fourth element we stated that “the assault [must] have violated state or federal law.” 

Id. Nowhere in that decision did we suggest that the state or federal assault also must 

violate a common-law version of that offense. Id. Indeed, we explicitly declined the 

defendant’s invitation to consider the mens rea required for “VICAR assault” in lieu of the 

elements of the incorporated state assault offense. Id. at 148; see also id. at 152 (Niemeyer, 

J., writing separately) (explaining that the defendant had pleaded guilty to “the commission 

of VICAR assault . . . , the elements of which included violations of” the incorporated state 

offense).

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while simultaneously also violating a state law.” Id. at 397. In other words, even though 

the government did not need to prove as an element generic assault, the defendant’s actual 

conduct had to fall within the definition of that enumerated federal offense. We did not 

consider whether the enumerated federal offense of “assault” created a separate element of 

a substantive VICAR conviction, nor did we consider whether the VICAR statute requires 

a “‘look through’ approach” for a § 924(c) “crime of violence” analysis. See 955 F.3d at 

393; Thomas, 87 F.4th at 271 (citing Keene, 955 F.3d at 393). 

Our holding in Keene, when understood in its proper context, is limited to permitting 

a defendant to challenge a substantive VICAR charge by arguing that the conduct alleged 

in the indictment falls outside the generic definition of the enumerated federal offense in 

the VICAR statute.4

 Neither Thomas nor the present case involved any such challenge to 

a substantive VICAR charge. Rather, in both cases we were asked to address the validity 

of a § 924(c) conviction. When presented with such a question, we ignore the actual 

conduct underpinning the predicate VICAR assault offense and examine only the elements

4 The Supreme Court enunciated a similar principle when it analyzed an earlier 

federal racketeering statute that also listed certain enumerated offenses “by reference to 

state law.” 18 U.S.C. § 1952 (the Travel Act); Johnson v. United States, 64 F.4th 715, 723 

(6th Cir. 2023). In United States v. Nardello, the Court considered whether the Travel 

Act’s prohibition on travel in interstate commerce with intent to further “extortion . . . in 

violation of the laws of the State in which the [crime is] committed,” applied to extortionate 

conduct classified as “blackmail” under the applicable state law. 393 U.S. 286, 287 (1969). 

In holding that the Act applied to such extortionate conduct, the Supreme Court explained 

that the proper inquiry was “not the manner in which States classify their criminal 

prohibitions,” but “whether the particular State involved prohibits the extortionate activity 

charged.” Id. at 295. Turning to the Travel Act charges in that case, the Supreme Court 

concluded that the defendants’ conduct fell within the generic term of “extortion,” as used 

in the Travel Act, because “the indictment encompasse[d] a type of activity generally 

known as extortionate.” Id. at 295–96.

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of that offense to determine whether it categorically qualifies as a “crime of violence.” 

Accordingly, our conclusion in Keene does not bear on the distinct categorical analysis 

required in this case or in Thomas.

II.

When Congress decided not to incorporate the phrase “crime of violence” in every 

enumerated federal offense in the VICAR statute, Congress established a statutory scheme 

that allows for potentially meaningful differences between substantive VICAR crimes and 

“crime[s] of violence” under § 924(c). We have long recognized that it is Congress’s 

prerogative to determine under what conditions an individual will be subject to a 

consecutive mandatory minimum sentence under § 924(c), and I am troubled by our 

elimination in Thomas of any distinction that Congress intended to create between certain 

substantive VICAR offenses and § 924(c) “crime[s] of violence.” Accordingly, although 

we are bound by Thomas in the present case, I otherwise would have reversed the district 

court’s judgment on the basis that no element of assault with a dangerous weapon under 

18 U.S.C. § 1959(a)(3), in violation of the North Carolina statutory crime of assault with a 

deadly weapon, N.C. Gen Stat. § 14-33(c)(1), requires a sufficiently culpable mens rea to 

meet the requirements of the § 924(c) force clause.

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