Whether a crime that requires proof of bodily injury or death, but can be committed by accidental means or by failing to take action, has as an element the use, attempted use, or threatened use of physical force

QUESTION PRESENTED Under 18 U.S.C. § 924(c)(3)(A), a felony qualifies as a “crime of violence” if it “has as an element the use, at-tempted use, or threatened use of physical force against the person or property of another.” Mr. Ortiz-Orellana argued below that Maryland first degree murder does not qualify as a “crime of violence” under § 924(c) because it is an indivisible crime that encompasses felony murder — a means which requires no more than an accidental death committed in the course of an underlying felony. Such a mens rea does not suffice under the force clause of the § 924(c) “crime of violence” definition after this Court’s decision in Borden v. United States, 593 U.S. 420 (2021), which held that offenses that can be committed by the reckless use of force fail to qualify as “crimes of violence” under the force clause. But the Fourth Circuit rejected this argument. The Circuit did not dispute that Maryland first degree murder criminalizes felony murder and that felony murder fails to qualify as a § 924(c) “crime of violence” after Borden. Nonetheless and notwithstanding Maryland state cases to the contrary, the Fourth Circuit concluded that Maryland first degree murder is divisible between premeditated murder and felony murder; therefore, the panel used the modified categorical i approach and looked to documents authorized under Shepard v. United States, 544 U.S. 13 (2005) to conclude that Mr. Ortiz-Orellana’s VICAR Maryland first degree murder convictions were predicated on premeditated murder — which it concluded is a § 924(c) “crime of violence.” In addition, courts have disagreed about how to apply use-of-force language to crimes that require proof of a victim’s bodily injury or death but can be committed by failing to take action. This Court has granted certioarari in Delligatti v. United States, No. 28-825 on the question — whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force so as to death) qualifies as a “crime of violence” under the 924(c) force clause. Specifically, at issue in the Delligatti petition is whether VICAR attempted murder qualifies as a “crime of violence.” The question presented is: Whether a crime that requires proof of bodily injury or death, but can be committed by accidental means or by failing to take action, has as an element the use, attempted use, or threatened use of physical force. ii