Is there any case law in which a RICO conspiracy is not a crime of violence even though one of the charged predicate acts is a conspiracy to commit murder?

That this conclusion applies to RICO conspiracies as to others can come as no surprise. We have said as much on several occasions, although our statements could be seen, strictly speaking, as dicta, or were in the context of summary orders. Thus, in Martinez we noted that "[w]e can assume that the [RICO] conspiracy violation is not a crime of violence because . . . a conspiracy offense cannot categorically involve the use of force, since its key element is simply an agreement to commit a crime. . . . [and] because no violent act [i.e., no act requiring use of force] . . . must be committed in order to be guilty of the offense." 991 F.3d at 354 (emphasis added; emphasis omitted). But in Martinez we needed only to assume that this was so; because the defendant there pled guilty to using a firearm in furtherance of both a conspiracy and a substantive RICO offense, our conclusion that it was not plain error for the district court to have

concluded that the substantive RICO charge in the indictment was a crime of violence was sufficient to dispose of the case. In United States v. Heyward, we quoted the above language from Martinez in concluding that a racketeering conspiracy did not constitute a crime of violence even though one of the charged predicate racketeering acts was a conspiracy to commit murder, because even a conspiracy to commit murder "is not a qualifying offense under 924(c)." 3 F.4th 75, 82 (2d Cir. 2021) (emphasis in original).^[9] We similarly cited the Martinez language in United States v. Kilpatrick, in support of the conclusion that "the government correctly concedes . . . [that] it was a clear and obvious error for each defendant to be convicted of the 924(c) charge with the RICO conspiracy as the

predicate crime of violence." 2021 WL 3354737, at *2 (2d Cir. Aug. 3, 2021) (summary order).