Ambiguity in Shepard Materials Defeats § 924(c) Predicate for VICAR Assault with a Deadly Weapon After Davis and Borden

Introduction

In Campbell v. United States (2d Cir. Apr. 6, 2026) (summary order), the Second Circuit vacated the denial of Michael Campbell’s motion under 28 U.S.C. § 2255 challenging his conviction under 18 U.S.C. § 924(c). Campbell had pleaded guilty in 2014 to using/carrying a firearm in furtherance of a “crime of violence,” where the stated predicate was assault in aid of racketeering (a VICAR assault with a deadly weapon) under 18 U.S.C. § 1959(a)(3).

After intervening Supreme Court and Second Circuit decisions narrowed what counts as a “crime of violence” under § 924(c), Campbell argued that his § 924(c) conviction could not stand because the record did not establish a qualifying predicate offense. The central issue was not what likely happened factually, but what Campbell’s plea record necessarily admitted under the modified categorical approach.

Note: The court issued a summary order, which by the Second Circuit’s rules “do[es] not have precedential effect,” but it still provides a detailed application of controlling doctrine to plea-record ambiguity.

Summary of the Opinion

The Second Circuit held that the Shepard materials (limited plea-record documents) did not establish that Campbell’s VICAR assault with a deadly weapon was predicated on an intentional New York assault offense (such as N.Y. Penal Law § 120.10(1) or § 120.05(2)). Because Campbell’s allocution left ambiguity about his mental state, the court concluded that, at most, the record supported a predicate of reckless assault under N.Y. Penal Law § 120.05(4).

Relying on Borden v. United States and the Second Circuit’s application of its reasoning to § 924(c) in Pannell v. United States, the court agreed that a recklessness offense does not qualify under § 924(c)’s elements clause. It therefore vacated the district court’s § 2255 denial and remanded with instructions to vacate Campbell’s § 924(c) conviction on Count One and resentence him, while noting the government’s potential ability (under the plea agreement) to reinstate certain charges.

Analysis

Precedents Cited

  • McCloud v. United States, 987 F.3d 261 (2d Cir. 2021): The court cited McCloud for the standard of review—§ 2255 denials are reviewed de novo. This matters because the appellate court independently assessed whether the predicate satisfied § 924(c), rather than deferring to the district court.
  • United States v. Davis, 588 U.S. 445 (2019): Davis is the doctrinal trigger: it eliminated § 924(c)’s residual clause, leaving only the elements clause. After Davis, the predicate offense must have, as an element, the use/attempted use/threatened use of physical force.
  • United States v. Hill, 890 F.3d 51 (2d Cir. 2018): Cited for the use of the categorical approach in analyzing whether an offense is a crime of violence. Hill supplies the methodological baseline that the court must focus on statutory elements, not case facts.
  • United States v. Pastore, 83 F.4th 113 (2d Cir. 2023): Quoted for both the categorical approach formulation and how the modified categorical approach works when the statute is divisible. Pastore frames the two-step sequence: identify the offense of conviction (from limited documents), then compare elements to § 924(c)(3)(A).
  • Descamps v. United States, 570 U.S. 254 (2013): Provides the Supreme Court’s foundational rule for when a statute is divisible and when the modified categorical approach is permitted.
  • Shepard v. United States, 544 U.S. 13 (2005): Defines the limited set of permissible “Shepard documents” the court may consult (e.g., plea colloquy, charging documents, written plea agreement) and prevents broader factfinding about the underlying conduct.
  • United States v. Morris, 61 F.4th 311 (2d Cir. 2023): A key comparator: the government argued Campbell’s record resembled Morris, where the co-defendant’s admissions established intentional conduct. The court distinguished Morris because that defendant admitted his “purpose” was to assault and that he agreed to and did shoot the victim—facts that necessarily conveyed intent. Campbell’s allocution did not.
  • United States v. Davis, 74 F.4th 50 (2d Cir. 2023): Cited for the instruction that, for VICAR assault with a deadly weapon, the court must identify the specific predicate state or federal assault offense and then evaluate whether that predicate is a crime of violence.
  • Policano v. Herbert, 7 N.Y.3d 588 (2006) and People v. Stokes, 88 N.Y.2d 618 (1996): Used to support the proposition that “murder” is a broad term under New York law and can include forms that do not require intent to kill (including felony murder), reinforcing that Campbell’s statement that he “participated in the murder” did not necessarily admit intent to cause injury.
  • United States v. Mapp, 170 F.3d 328 (2d Cir. 1999) and People v. Irizarry, 83 N.Y.2d 557 (1994): Cited to show that retaliatory motive or group-based purpose does not necessarily establish an intent-to-injure element; felony murder can arise from retaliatory criminal conduct without proof of intent to cause physical injury.
  • United States v. Savage, 542 F.3d 959 (2d Cir. 2008): Supplies the controlling constraint on plea records: the guilty plea must have “necessarily admitted elements of the predicate offense.” The court relied on Savage to treat ambiguity in the Shepard materials as fatal to the government’s attempt to pin Campbell to an intentional-assault predicate.
  • Borden v. United States, 593 U.S. 420 (2021): Establishes that offenses with a mens rea of recklessness do not qualify as “violent felonies” under the ACCA elements clause. Campbell’s case turns on whether that logic carries over to § 924(c).
  • Pannell v. United States, 115 F.4th 154 (2d Cir. 2024): Provides the bridge: because ACCA’s elements clause “parallels” § 924(c)’s elements clause, Borden’s recklessness exclusion applies in the § 924(c) “crime of violence” analysis. This is the doctrinal basis for excluding N.Y. Penal Law § 120.05(4) as a § 924(c) predicate.

Legal Reasoning

  1. Post-Davis gatekeeping: only the elements clause matters. The court began from the premise that after United States v. Davis, a predicate qualifies only if it meets § 924(c)(3)(A)’s elements clause. This forces a strict “elements, not evidence” inquiry.
  2. VICAR assault with a deadly weapon is divisible as to the underlying “in violation of state law” element. Following United States v. Morris, the court treated VICAR assault with a deadly weapon as divisible because it incorporates an underlying state (or federal) offense. Thus, the modified categorical approach is required to identify which New York assault statute served as the predicate.
  3. The modified categorical approach is limited to Shepard materials. Under Descamps, Shepard, and United States v. Pastore, the court could consider only the limited record of conviction. Even if the broader case record or investigative facts strongly indicated intent, they are irrelevant unless necessarily admitted in the permissible documents.
  4. Campbell’s allocution did not necessarily admit intent to cause physical injury. The government sought to map Campbell’s plea to intentional-assault provisions: N.Y. Penal Law § 120.10(1) or § 120.05(2), both requiring “intent to cause” physical injury. But Campbell stated only that he “participated in the murder,” knew a firearm would be used and discharged, and acted in retaliation/to maintain position. The court held these statements do not necessarily establish intent to injure because “murder” can include unintentional forms (e.g., felony murder), and motive is not the same as admitting the statutory intent element.
  5. Ambiguity is resolved by identifying the least culpable offense supported by the admitted elements. Applying United States v. Savage, the court treated the ambiguity as dispositive: because the plea did not necessarily admit intent, the court could not “upgrade” the predicate to an intent-based assault statute. The court concluded that, at most, the admissions supported N.Y. Penal Law § 120.05(4) (recklessly causing serious physical injury by means of a deadly weapon).
  6. Recklessness is not enough under the elements clause. With the predicate thus understood as reckless assault, Borden v. United States (as applied through Pannell v. United States) removes it from the set of § 924(c) crimes of violence. Therefore, Campbell’s § 924(c) conviction lacked a qualifying predicate and must be vacated.
  7. Remedy: vacatur and resentencing, with plea-agreement consequences preserved. The court ordered vacatur of the § 924(c) conviction and resentencing, and flagged that the plea agreement permitted the government to commence or reinstate certain prosecutions not time-barred as of the plea’s signing—an important practical consequence of successful § 2255 litigation in plea cases.

Impact

Although non-precedential, the decision is a clear roadmap for how courts in the Second Circuit may handle § 924(c) predicates built on VICAR assaults when the plea record is thin:

  • Prosecutorial drafting and plea colloquies: The ruling underscores the importance of ensuring that the indictment, plea agreement, and allocution expressly identify (and elicit admissions to) the precise underlying state offense and its key elements—especially mens rea—if the government wants to preserve § 924(c) predicates against post-Davis/Borden collateral attacks.
  • Defendants’ § 2255 strategy: Petitioners can succeed even where the “real-world” facts appear violent and intentional, if the Shepard record does not necessarily admit the element that makes the predicate a categorical match (here, intent to cause physical injury).
  • Mens rea is the decisive battleground: After Borden and Pannell, the line between intent/knowledge and recklessness can determine whether a § 924(c) conviction survives. Where the record permits a recklessness predicate, § 924(c) exposure may collapse.
  • Resentencing and reinstatement risk: The opinion highlights the tradeoff: vacating a § 924(c) count can reopen sentencing on remaining counts and may permit reinstatement of certain charges under plea terms—risk that must be assessed in post-conviction litigation.

Complex Concepts Simplified

§ 924(c) “crime of violence” (elements clause)
After United States v. Davis, the predicate offense must require (as an element) the use, attempted use, or threatened use of physical force. Courts do not ask what happened; they ask what the statute of conviction necessarily requires.
Categorical approach
A rule that compares the statutory elements of an offense to the federal definition (here, § 924(c)(3)(A)), ignoring the particular facts of the case.
Divisible statute & modified categorical approach
If a statute lists alternative elements (creating multiple possible crimes), the court may consult limited plea-record materials to determine which alternative formed the basis of conviction, then apply the categorical approach to that alternative.
Shepard materials
A constrained set of documents (such as the indictment, plea agreement, and plea colloquy) that courts may use to identify the elements necessarily admitted. Courts may not rely on police reports or other broader evidence.
Mens rea (intent vs. recklessness) and Borden
“Intent” means a conscious objective to cause a result; “recklessness” means consciously disregarding a substantial risk. Under Borden, recklessness offenses do not satisfy the elements-clause concept of using force “against” another in the required way.

Conclusion

Campbell v. United States applies modern § 924(c) doctrine to a common post-conviction problem: an old plea record that does not crisply identify the predicate offense’s elements. The Second Circuit’s core move was methodological—insisting that the modified categorical approach permits only what the Shepard record necessarily establishes. Because Campbell’s allocution did not necessarily admit intent to cause physical injury, the court treated the predicate as, at most, a reckless assault under N.Y. Penal Law § 120.05(4), which—under Borden as applied through Pannell—cannot support a § 924(c) conviction. The result was vacatur of the § 924(c) count and a remand for resentencing, with the significant practical caveat that plea-agreement reinstatement provisions may re-expose defendants to additional prosecution.