(Indictment (DE 2), Counts 1-12). Congress also determined, however, that the death penalty should be a potential punishment for federal crimes of violence if, in the course of their commission, the defendant used a firearm to commit murder (as defined in 18 U.S.C. § 1111) and embodied that intent in § 924(j). As the Supreme Court has acknowledged, Congress’s focus in enacting § 924 was, broadly speaking, an attempt to curb the use of firearms during the commission of a crime of violence.

This would exclude a large number of crimes that are paradigmatic examples of violent crime, including first degree murder. See 18 U.S.C. § 1111 (defining first degree murder, in part, as “[e]very murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing”) (emphasis added); see also James v. United States, 550 U.S. 192, 208 (2007) (describing attempted murder as “a prototypically violent crime”); Madsen v. Kinsella, 343 U.S. 341, 355 (1952) (referring to “murder and other crimes of violence”). Under Defendant’s interpretation of § 924(c), all premeditated murder, whether or not committed by poison, would categorically fail to qualify as a crime of violence under its force clause – a position rejected by the Fourth Circuit.

That said, the Government acknowledges that the Court could find it to be second degree murder, given the uncertainty as to why Saxon was there and the fact that he was intoxicated.13 12 Application Note 14(C) to § 2K2.1 explains that “‘Another offense,’ for purposes of subsection (c)(1), means any federal, state, or local offense, other than the . . . firearms possession . . . regardless of whether a criminal charge was brought, or a conviction obtained.” 13 Application Note 1 to U.S.S.G. § 2A2.1 defines first degree murder as “conduct that, if committed within the special maritime and territorial jurisdiction of the United States, would constitute first degree murder under 18 U.S.C. § 1111. Section 1111 defines murder as “the unlawful killing of a human being with malice aforethought.”

Here, the crimes of First Degree Murder, Voluntary Manslaughter, and Attempt to Commit Manslaughter are “crimes of violence,” as defined by 18 U.S.C. § 16. Compare 18 U.S.C. § 16(a) (providing that a “crime of violence” means “an offense that has as an element the use, attempted use, or threatened use of physical force against the person . . .”) with 18 U.S.C. §§ 1111 and 1112 (setting forth statutory language of offenses and elements). In addition, each of the First Degree Murder, Voluntary Manslaughter, and Attempt to Commit Manslaughter counts on which the defendants were convicted relates to an identifiable victim who suffered death or physical injury, and many such victims suffered pecuniary loss as well.

Here, the crimes of First Degree Murder, Voluntary Manslaughter, and Attempt to Commit Manslaughter are “crimes of violence,” as defined by 18 U.S.C. § 16. Compare 18 U.S.C. § 16(a) (providing that a “crime of violence” means “an offense that has as an element the use, attempted use, or threatened use of physical force against the person . . .”) with 18 U.S.C. §§ 1111 and 1112 (setting forth statutory language of offenses and elements). In addition, each of the First Degree Murder, Voluntary Manslaughter, and Attempt to Commit Manslaughter counts on which the defendants were convicted relates to an identifiable victim who suffered death or physical injury, and many such victims also suffered pecuniary loss as well.

See U.S.S.G. §5E1.2(c)(3). An example of such a crime would be Second Degree Murder in violation of 18 U.S.C. § 1111(a). See U.S.S.G. §2A1.2(a).