                        NOT RECOMMENDED FOR PUBLICATON
                               File Name: 20a0050n.06

                                           No. 15-2503

                          UNITED STATES COURT OF APPEALS                                FILED
                               FOR THE SIXTH CIRCUIT                              Jan 24, 2020
                                                                              DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA,                                )
                                                          )
        Plaintiff-Appellee,                               )      ON APPEAL FROM THE
                                                          )      UNITED STATES DISTRICT
 v.                                                       )      COURT FOR THE
                                                          )      EASTERN DISTRICT OF
 WILLIAM FRAZIER,                                         )      MICHIGAN
                                                          )
        Defendant-Appellant.



BEFORE: GIBBONS, COOK, and THAPAR, Circuit Judges.


       JULIA SMITH GIBBONS, Circuit Judge. This case is before us on remand following the

Supreme Court’s decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Because the recently

decided Manners v. United States, No. 17-1171 (6th Cir. Jan. 13, 2019), binds this panel, we affirm

Frazier’s conviction under 18 U.S.C. § 924(c).

       Appellant William Frazier argued that his conviction under 18 U.S.C. § 924(c) should be

reversed because the predicate offense, assault with a dangerous weapon in aid of racketeering in

violation of 18 U.S.C.§ 1959(a)(3), was not a “crime of violence.” United States v. Odum, 878

F.3d 508, 520 (6th Cir. 2017). We affirmed Frazier’s conviction, relying on then-binding

precedent in United States v. Taylor, 814 F.3d 340 (6th Cir. 2016). The Supreme Court granted

Frazier’s petition for writ of certiorari and remanded the case for further consideration in light of

Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Frazier v. United States, 139 S. Ct. 319 (2018).
Case No. 15-2503, United States v. Frazier


Subsequently in United States v. Davis, 139 S. Ct. 2319 (2019), the Court declared § 924(c)(3)(B)’s

residual clause unconstitutionally vague. 139 S. Ct. at 2336.

       On remand, Frazier argues that his conviction under § 924(c) should be reversed because

§ 1959(a)(3) is not a “crime of violence” falling within § 924(c)(3)(A)’s elements clause. Our

recent precedent forecloses this argument. Manners v. United States, No. 17-1171 (6th Cir. Jan.

13, 2019). Manners held that assault with a dangerous weapon in aid of racketeering under §

1959(a)(3) categorically involves the use, attempted use, or threatened use of force capable of

causing physical pain or injury to another person. Id. at 7. Manners first rejected the argument

that VICAR is not divisible, deciding the “statute is ‘divisible’ into different substantive offenses

because it ‘list[s] elements in the alternative, and thereby define[s] multiple crimes.’” Id. at 4

(quoting Mathis v. United States, 136 S. Ct. 2243, 2249 (2016)). Additionally, Manners held the

categorical approach required analysis of the generic offense of assault with a dangerous weapon,

not a specific federal or state law offense. Id. (“The relevant predicate offense is thus 18 U.S.C. §

1959(a)(3), which requires proof that the defendant committed 1) an assault 2) with a dangerous

weapon 3) in furtherance of racketeering activity.”). Finally, our precedent in United States v.

Verwiebe, 874 F.3d 258 (6th Cir. 2017), forecloses Frazier’s argument that an offense cannot be

categorically violent if it can be committed recklessly. 874 F.3d at 264.

       Additionally, on remand, Frazier urges this court to review its prior ruling that a VICAR

conviction requires the government to prove Frazier knew the enterprise was engaged in

racketeering activity. Odum, 878 F.3d at 518. Because the Supreme Court limited its grant of




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Case No. 15-2503, United States v. Frazier


certiorari and remand to consideration of Frazier’s vagueness challenge to § 924(c)’s residual

clause, we decline to revisit this holding.1

         We affirm.




1
  We recognize that the Supreme Court’s recent decision in Rehaif v. United States, 139 S. Ct. 2191 (2019) arguably
cast doubt upon our prior holding. But in any event, Frazier could not prevail because there was sufficient evidence
for a rational trier of fact to find that he knew that the enterprise was engaged in racketeering. Jackson v. Virginia,
443 U.S. 307, 319 (1979). After all, Frazier was the head of a local chapter of the enterprise; he joined the enterprise
soon after it had committed various acts of racketeering; and he was personally acquainted with the national president,
who ordered these acts. Frazier doesn’t separately challenge the jury instructions in his case. Cf. United States v.
Baldyga, 233 F.3d 674, 679 n.3 (1st Cir. 2000). But that challenge would also fail under plain-error review since
Frazier cannot show that any error was “plain.” United States v. Barrow, 118 F.3d 482, 492 (6th Cir. 1997).


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