Courts Consider Arson Crimes as Predicates to 924(c) "Crimes of Violence"

District Court Holds that Possession of Destructive Device in Furtherance of a Crime of Violence is Invalid for Arson

United States v. Mujera Lung’aho, No. 4:20-cr-288-1 (Order) (E.D. AR, October 18, 2022)

924(c)(1)(B) has a 30-year mandatory minimum sentence. That provision is violated when persons use a “destructive device” during a crime of violence. The question before the Court was whether the federal arson statute amounted to a “crime of violence” sufficient to sustain a 924(c)(1)(B) conviction.

The district court held that it did not. In United States v. Taylor, 142 S. Ct. 2015, 2020 (2021), the Supreme Court reaffirmed that you must use the categorical approach when determining if a crime amounts to a so-called “crime of violence” under 924(c). The Supreme Court has also recently held that offenses which criminalize so called “reckless” conduct are not violent felonies for purposes of ACCA under 924(e)(B)(i). That case was Borden v. United States, 141 S. Ct. 1817, 1825 (2021).

The federal arson statute can be violated when a defendant acts “maliciously” to violate the law. The definition of maliciousness includes ordinary recklessness as the Tenth Circuit has previously held.  As a result, under the categorical approach, federal arson is not a crime of violence.

Fourth Circuit Finds 844(i) Arson not 924(c) Predicate:  Davis, No. 16-7671

Davis conspired with others to throw a “Molotov Cocktail” onto a person’s porch. Davis was charged with four counts, including a 924(c) in furtherance of an 844(f) arson. He was found guilty and sentenced to 120 months on the arson cases and 360 months on the 924(c) cases.

Davis filed a second or successive 2255 arguing that post-Johnson [v. United States, 576 U.S. 591, 597 (2015)], his federal arson conviction under 844(f) was not a crime of violence sufficient to sustain his  924(c) conviction.

The Fourth Circuit agreed:

“The force clause of 924(c) prohibits “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) (emphasis added). By its terms, the force clause does not reach the use of physical force against property solely owned by the defendant. It is for this reason that the Supreme Court, in interpreting a substantially similar definition of “crime of violence” in 18 U.S.C. 16(a), has concluded that many state arson laws would not constitute crimes of violence to the extent these laws define arson “to include the destruction of one's own property.

This is enough to resolve the case here. Section 844(f), the predicate offense, could easily encompass force against a defendant's own property."  As a result, the 844 arson case is no longer an appropriate predicate for the 924(c) case (remember, the categorical approach looks at the text of the statute that the person was charged with as opposed to what had actually happened)."

TAKE AWAY: If you have a crime of violence conviction which was based on the federal arson statute you may be able to seek relief. Contact our office at [email protected] or by telephone at 972-483-4865 today so we can discuss your options. Courts are going to continue to use Taylor and Borden to narrow the scope of federal crimes of violence moving forward.