Whether the invocation of Pinkerton theory of liability by the government, without more, obviates the government's requirement to satisfy the force/elements clause and allows the prosecution of a §924(c) offense based on allegations and evidence that the defendant was engaged in a conspiracy

QUESTION PRESENTED The question presented is whether, after Davis, the invocation of Pinkerton theory of liability by the government, without more, obviates the government’s requirement to satisfy the force/elements clause and allows the government to prosecute a §924(c) offense based upon allegations and evidence that the defendant was engaged in a conspiracy? Petitioner was convicted of multiple offenses, including two violations of 18 U.S.C. § 924(c) for carrying a firearm during a crime of violence. In United States v. Davis, 139 S. Ct. 2319 (2019), this Court found the residual clause to be unconstitutional, leaving only the force/elements clause as a valid basis for finding a defendant guilty of the necessary predicate crime of violence. After Davis, to determine whether an offense satisfied the elements clause, Courts must employ the “categorical approach.” Simms, 914 F.3d 229, 234 (4th. Cir. 2019). That is, courts are to consider the elements of the crime of conviction, not the facts of how it was committed. A predicate offense is considered constitutionally overbroad if its elements allow for a conviction without satisfying the elements Congress has provided to define the required predicate offense. In the instant case, the jury was instructed by the Court, argued to by counsel, and then presented with a verdict form that erroneously instructed them that they could use “conspiracy to commit Hobbs Act Robbery” as a predicate crime of violence upon which to base a subsequent § 924(c) conviction ii STATEMENT OF RELATED CASES None.