Whether RICO is a 'crime of violence' under 18 U.S.C. § 924(c)(3)(A)

QUESTION PRESENTED The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (“RICO”), makes it a federal crime to participate in, or to conspire to participate in, a racketeering enterprise “through a pattern of racketeering activity.” Id. § 1962(c), (d). The statute defines “racketeering activity” broadly to include hundreds of federal and state crimes, many of which do not require any force or violence whatsoever. Id. § 1961(1). In assessing whether an offense such as a RICO violation qualifies as a “crime of violence” within the meaning of 18 U.S.C. § 924(c)(3)(A), courts must apply a “categorical approach” and consider only the statutory elements of the offense, not “how any particular defendant may commit the crime.” United States v. Taylor, 142 S. Ct. 2015, 2020 (2022). In cases involving “divisible” statutes—i.e., those that “set[] out one or more elements of the offense in the alternative’—courts may apply a “modified categorical approach” and consult certain documents “to determine which alternative formed the basis of the defendant’s ... conviction.” Descamps v. United States, 570 U.S. 254, 257 (2013). But courts may not apply this “modified” approach to an offense with “a single, indivisible set of elements.” Id. The question presented is: In assessing whether RICO is a § 924(c)(38)(A) “crime of violence,” is the statutory definition of “racketeering activity” divisible, such that a court may use the modified approach to i examine the particular racketeering acts committed by the defendant, as the Second and Third Circuits hold, or is the statutory definition indivisible, requiring application of the standard categorical approach, as the Fourth and Fifth Circuits hold? li