USCA4 Appeal: 22-4147 Doc: 55 Filed: 03/15/2024 Pg: 1 of 20
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4147
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MALEK LASSITER, a/k/a Leeko,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Mark S. Davis, Chief District Judge. (2:16-cr-00130-MSD-LRL-5)
Argued: October 25, 2023 Decided: March 15, 2024
Before AGEE, WYNN, and RICHARDSON, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion. Judge Richardson
wrote the opinion, in which Judge Wynn joined. Judge Agee wrote a separate opinion
concurring in part and concurring in the judgment.
ARGUED: Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke,
Va., for Appellant. Andrew C. Bosse, OFFICE OF THE U.S. ATTORNEY, Norfolk, Va.,
for Appellee. ON BRIEF: Richard D. Cooke, OFFICE OF THE U.S. ATTORNEY,
Norfolk, Va., for Appellee.
USCA4 Appeal: 22-4147 Doc: 55 Filed: 03/15/2024 Pg: 2 of 20
RICHARDSON,
This is Malek Lassiter’s second appeal from his nine convictions. On his first trip to this Court, we reversed four of Lassiter’s nine counts. See United States v. Simmons, 11 F.4th 239 , 248 (4th Cir. 2021). Now, he asks us to reverse two more: convictions for possessing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924 (c)(1)(A).
But Lassiter didn’t challenge these convictions in the district court or in his first appeal, so his appeal triggers both plain-error review and the mandate rule. He seeks to evade these bars by arguing that a dramatic change in legal authority has rendered his convictions plainly erroneous.
According to Lassiter, the Supreme Court’s decision in United States v. Taylor, 596 U.S. 845 (2022), dramatically changed what constitutes a “crime of violence” when it held that attempted Hobbs Act robbery isn’t such an offense. This change, Lassiter says, means that attempted murder in aid of racketeering activity (“VICAR attempted murder”)—on which his § 924(c)(1)(A) convictions were predicated—is not a crime of violence. He therefore asks us to vacate both convictions on this ground.
But we decline Lassiter’s invitation. Taylor simply held that attempted Hobbs Act robbery isn’t a crime of violence because Hobbs Act robbery can be committed without the use of force. Murder, by contrast, requires the use of force. So attempted murder necessarily requires the attempted use of force and fits cleanly within the definition of a crime of violence. § 924(c)(3)(A). We therefore reject Lassiter’s contentions and affirm his § 924(c)(1)(A) convictions. But because of an inconsistency between the oral and written descriptions of one of Lassiter’s supervised-release conditions, we vacate his 2 USCA4 Appeal: 22-4147 Doc: 55 Filed: 03/15/2024 Pg: 3 of 20 sentence in its entirety and remand for a full resentencing. See United States v. Rogers, 961 F.3d 291 , 296, 300–01 (4th Cir. 2020).
I. Background Lassiter’s story begins with his attempt to join the Norfolk, Virginia-based branch of Nine-Trey Gangsters. [Simmons, 11 F.4th at 249.] In December 2015, he attended a meeting with three confirmed Nine-Trey members and their superior. [Id. at 251.] The superior instructed the four men to carry out a series of retaliatory attacks on a rival, Virginia Beach-based line of Nine-Trey Gangsters, and one of the men gave Lassiter a .38- caliber handgun. [Id.] Lassiter and his three companions departed together in one car and drove to two of their targets’ residences. [Id.] Fortunately, neither target was home. [Id.] They then drove to a house where they believed a third target resided. [Id.] Two of them approached the door, while Lassiter stood watch down the street. [Id. at 252.] Those two men shot the house’s innocent occupant six times and ran back toward the car. [Id.] As they fled, neighbors who heard the commotion gathered outside their homes. [Id.] Lassiter discharged several rounds toward those witnesses. [Id.] The government charged Lassiter with ten criminal counts for his involvement in the spree, and a jury convicted him on each count. [J.A. 70–73.] The district court then vacated one of the convictions and sentenced Lassiter to 420 months, which Lassiter appealed. [J.A. 122]. We vacated four of the remaining nine counts because of an impermissible constructive amendment of Lassiter’s indictment and insufficient evidence.
[Simmons, 11 F.4th at 248.] But we left five counts undisturbed: one coun