Opinion
Case No. 10-cr-256-03 (RCL)
2023-02-23
UNITED STATES of America, v. Wilfredo MEJIA, Defendant.
Barry Wiegand, Assistant U.S. Attorney, U.S. Attorney's Office Special Proceedings Section, Washington, DC, Laura R. Bach, William John O'Malley, Jr., Assistant U.S. Attorneys, U.S. Attorney's Office, Washington, DC, Nihar Ranjan Mohanty, Assistant U.S. Attorney, U.S. Attorney's Office for the District of Columbia Violent Crime and Narcotics Trafficking Section, Washington, DC, Timothy Ronald Cahill, Assistant U.S. Attorney, DOJ-USAO, Special Proceedings Division, Washington, DC, Seth Adam Meinero, Assistant U.S. Attorney, DOJ-USAO, Washington, DC, Laura Jean Gwinn, Lakeita Rox-Love, Assistant U.S. Attorneys, U.S. Department of Justice, Criminal Division, Washington, DC, for United States of America. A.J. Kramer, Benjamin M. Flick, Public Defenders, Federal Public Defender for the District of Columbia, Washington, DC, Pleasant Sanford Brodnax, III, Law Office of Pleasant S. Brodnax, III, Washington, DC, for Defendant. Wilfredo Mejia, Ray Brook, NY, Pro Se.
Barry Wiegand, Assistant U.S. Attorney, U.S. Attorney's Office Special Proceedings Section, Washington, DC, Laura R. Bach, William John O'Malley, Jr., Assistant U.S. Attorneys, U.S. Attorney's Office, Washington, DC, Nihar Ranjan Mohanty, Assistant U.S. Attorney, U.S. Attorney's Office for the District of Columbia Violent Crime and Narcotics Trafficking Section, Washington, DC, Timothy Ronald Cahill, Assistant U.S. Attorney, DOJ-USAO, Special Proceedings Division, Washington, DC, Seth Adam Meinero, Assistant U.S. Attorney, DOJ-USAO, Washington, DC, Laura Jean Gwinn, Lakeita Rox-Love, Assistant U.S. Attorneys, U.S. Department of Justice, Criminal Division, Washington, DC, for United States of America. A.J. Kramer, Benjamin M. Flick, Public Defenders, Federal Public Defender for the District of Columbia, Washington, DC, Pleasant Sanford Brodnax, III, Law Office of Pleasant S. Brodnax, III, Washington, DC, for Defendant. Wilfredo Mejia, Ray Brook, NY, Pro Se. MEMORANDUM ORDER Royce C. Lamberth, United States District Judge
Before this Court is defendant Wilfredo Mejia's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The government initially opposed the motion, arguing that Mejia's motion was procedurally barred and meritless. However, the parties have since conferred and requested, via joint motion, that the Court grant Mejia's § 2255 motion and vacate his 18 U.S.C. § 924(c) conviction because none of the potential predicate offenses qualify as a "crime of violence" following intervening changes in law. Upon consideration of the record, the applicable law, and the parties' briefing, the Court will GRANT the parties' joint motion, Mejia's original § 2255 motion, and his supplemental § 2255 motion.
I. BACKGROUND
This Court has previously described the factual background of this case in detail. See United States v. Mejia, 502 F. Supp. 3d 387 (D.D.C. 2020); United States v. Mejia, 541 F. Supp. 3d 87 (D.D.C. 2021). Therefore, the Court will briefly summarize the facts necessary to rule on the instant motion.
In November 2011, the United States obtained a superseding indictment against Mejia that charged him with the following twenty-three felonies arising from his membership in La Mara Salvatrucha, also known as "MS-13":
| Count | Charge | Statute | Predicate |
|---|---|---|---|
| 1 | Racketeer Influenced and Corrupt Organizations ("RICO") Conspiracy | N/A | |
| 2 | Violent crime in aid of racketeering ("VICAR") kidnapping | ||
| 6, 10, 14, 18 | VICAR kidnapping while armed | D.C. Code §§ 22-2001, -4502 (Kidnapping while armed) | |
| 3, 7, 11, 15, 19 | VICAR assault with a deadly weapon | D.C. Code § 22-402 (Assault with dangerous weapon) | |
| 4, 8, 12, 16, 20 | Armed robbery | D.C. Code §§ 22-2801, -4502 | N/A |
| 5, 9, 13, 17, 21 | Kidnapping while armed | D.C. Code §§ 22-2001, -4502 | N/A |
| 22 | First degree burglary while armed | D.C. Code §§ 22-801(a), -4502 | N/A |
| 23 | Possession of a firearm during and in relation to a crime of violence | [The Subject of this Opinion] |
On July 20, 2012, Mejia, his counsel, and the government reached a plea agreement. Plea Agreement, ECF No. 216. Mejia agreed to admit his guilt as to all counts and enter a plea of guilty to Count 1, RICO Conspiracy, in violation of 18 U.S.C. § 1962(d), and Count 23, possessing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A), (2). Id. In exchange for Mejia's plea, the government agreed to recommend a total sentence of 141 months of incarceration. Id. Mejia signed both the plea agreement and the government's associated factual proffer. See ECF No. 216-17. Judge Rosemary M. Collyer sentenced Mejia consistent with the government's recommendation. Min. Entry (10/05/2012). Specifically, Mejia was sentenced to 57 months of incarceration for Count 1. J., ECF No. 254. He was also sentenced to 84 months of incarceration for Count 23, to be served consecutively to his sentence for Count 1. Id. The sentence for Count 23 represented the mandatory minimum under the statute. See Final Presentence Investigation Report ("PSR"), ECF No. 243, at 8. He was further sentenced to 36 months of supervised release and $100 for each felony count of conviction. J. at 4, 6. Mejia did not appeal his sentence.
Mejia advocates for vacating his conviction on Count 23, presenting the Court with a variety of arguments. In the first round of briefing, he argued that the conviction was unconstitutional because (a) it was ambiguous which offense served as the predicate offense for his § 924(c) conviction, (b) the court must assume the predicate was VICAR kidnapping, in turn predicated on D.C. kidnapping, and (c) D.C. kidnapping is no longer a crime of violence following the Supreme Court's decisions in Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) and United States v. Davis, — U.S. —, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019) invalidating the so-called "residual clause" of 18 U.S.C. § 924(c). See Def.'s Mot., ECF No. 628; Def.'s Mem. in Supp., ECF No. 629; Def.'s Suppl. Mot., ECF No. 662. The government opposed, claiming that multiple offenses served as the predicate offense and at least one, specifically VICAR assault with a deadly weapon ("VICAR ADW"), predicated on D.C. assault with a dangerous weapon ("D.C. ADW"), survived Johnson and Davis. Gov't Opp'n, ECF No. 671. In reply, Mejia pivoted and argued instead that (a) there was no ambiguity regarding the predicate offense, (b) the sole predicate was D.C. armed robbery, and (c) D.C. armed robbery is not a crime of violence. Def.'s Reply, ECF No. 672. The United States filed a sur-reply, Gov't Sur-Reply, ECF No. 673, and Mejia responded with a sur-reply of his own. Def.'s Sur-Reply, ECF No. 675.
As the Court has previously explained, "a defendant commits a § 924(c)(1) offense when he commits some other crime (the 'predicate crime') and, while so doing, possesses a firearm." Mejia, 502 F. Supp. 3d at 390 (emphasis in original) (citing Rosemond v. United States, 572 U.S. 65, 75, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014)). "Section 924(c)(1) also specifies that that predicate must be a 'crime of violence.' " Id. (citing 18 U.S.C. § 924(c)(1)(A)).
Courts generally "need not consider" arguments raised for the first time in reply briefs. Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008). This is "due to concern that the opposing party would lose an opportunity to respond." United States v. Brown, 249 F. Supp. 3d 287, 295 n.1 (D.D.C. 2017) (citation omitted). Here, however, the government has not lost an opportunity to respond, as the government filed a sur-reply that the Court will consider. See n.3. The government's sur-reply directly addresses and opposes Mejia's new argument, while also noting that the government disagrees with Mejia's new argument on similar grounds to his original argument. Gov't Sur-Reply, ECF No. 673, at 3. Because the government has had the opportunity to—and did—respond to Mejia's new argument, the Court will address the additional argument raised in Mejia's reply brief.
The parties here never moved for leave to file their sur-replies, even though leave of court is required in this District. See Longwood Village Rests., Ltd. v. Ashcroft, 157 F. Supp. 2d 61, 68 n.3 (D.D.C. 2001). "The decision to grant or deny leave to file a sur-reply is committed to the sound discretion of the Court." Doe v. Exxon Mobil Corp., 69 F. Supp. 3d 75, 85 (D.D.C. 2014) (quoting Lu v. Lezell, 45 F. Supp. 3d 86, 91 (D.D.C. 2014)). "A district court should consider 'whether the movant's reply in fact raises arguments or issues for the first time, whether the non-movant's proposed surreply would be helpful to the resolution of the pending motion, and whether the movant would be unduly prejudiced were leave to be granted.' " Id. (quoting Banner Health v. Sebelius, 905 F. Supp. 2d 174, 187 (D.D.C. 2012)). Because of the evolving nature of Mejia's argument and because the information contained in the sur-replies is helpful for the Court's ultimate resolution of the pending motions, the Court will permit and consider the sur-replies filed by both parties. That said, the parties are reminded that a court is well within its discretion to strike their sur-replies if they decline to move for leave to file them. See Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101, 113 (D.D.C. 2002).
After learning that Mejia completed his prison term and was deported from the country, this Court dismissed Mejia's motion as moot. See Mejia, 502 F. Supp. 3d 387; Order, ECF No. 679. The Court also denied Mejia's motion for certificate of appealability. See Mejia, 541 F. Supp. 3d 87; Order, ECF No. 687. On appeal, the D.C. Circuit, at the parties' request, reversed, stating that "[t]he special assessment attributable to the conviction the appellant seeks to challenge precludes a mootness finding in this matter." United States v. Mejia, No. 20-3086, 2022 WL 4280686, at *1 (D.C. Cir. Sept. 14, 2022) (internal citations omitted). The D.C. Circuit remanded the case for this Court to consider the merits of Mejia's motion. Mandate, ECF No. 703.
On remand, Mejia comes before the Court with yet another argument, though this time he is joined by the government. The parties now agree that none of the potential predicates for Mejia's § 924(c) conviction currently qualify as crimes of violence after intervening changes in law and accordingly request that this Court vacate his conviction. Joint Mot., ECF No. 709, at ¶¶ 8-10 (citing 28 U.S.C. § 2255(a)).
II. LEGAL STANDARDS
A defendant may move to vacate, set aside, or correct his sentence if he believes that the sentence was imposed "in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). § 2255 motions are subject to a one-year statute of limitations. Id. § 2255(f). When the Supreme Court recognizes a new right and makes that right retroactively applicable to cases on collateral review, the one-year statute of limitations begins on the date that "the right asserted was initially recognized by the Supreme Court." Id. The defendant bears the burden to prove his right to relief by a preponderance of the evidence. United States v. Baugham, 941 F. Supp. 2d 109, 112 (D.D.C. 2013).
When considering the merits of a § 2255 motion, there is a "general rule that claims not raised on direct appeal may not be raised on collateral review unless the [defendant] shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (citing United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). Cause may be shown where a claim is "so novel that its legal basis is not reasonably available to counsel," but "futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time." Bousley v. United States, 523 U.S. 614, 622-23, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal quotations omitted). To establish "prejudice," a petitioner must show " 'there is a reasonable probability that, but for the errors, the result of the proceeding would have been different.' " United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In determining prejudice in the context of a guilty plea, a defendant "must show a reasonable probability that, but for the error, he would not have entered the plea." United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).
The Armed Career Criminal Act ("ACCA"), codified in relevant part at 18 U.S.C. § 924(c), authorizes heightened, mandatory criminal penalties when a defendant uses, carries, or possesses a firearm in connection with a "crime of violence." Id. § 924(c)(1)(A). Under § 924(c)(3), there are two categories of offenses that constitute predicate crimes of violence. That section's elements clause covers any felony that "has an element the use, attempted use, or threatened use of physical force against the person or property of another." Id. § 924(c)(3)(A). That section's residual clause covers any felony that, "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Id. § 924(c)(3)(B). In Davis, the Supreme Court held the residual clause void for vagueness. 139 S. Ct. at 2324. Therefore, a predicate offense must fall within the elements clause to sustain a § 924(c) conviction.
Courts apply a "categorical approach" to determine whether an offense falls within § 924(c)'s elements clause. United States v. Khatallah, 41 F.4th 608, 631 (D.C. Cir. 2022) (citing Davis, 139 S. Ct. at 2328). The objective of the categorical approach is to " 'focus solely on whether the elements of the crime of conviction' require the use, attempted use, or threatened use of physical force against the person or property of another." Id. (quoting Mathis v. United States, 579 U.S. 500, 504, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016)). A court may only use a conviction as a predicate offense if the court can establish with "legal certainty" that the conviction was for a crime of violence. See Mathis, 579 U.S. at 515 n.6, 136 S.Ct. 2243 (citing Shepard v. United States, 544 U.S. 13, 23, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).
III. DISCUSSION
At the outset, the Court recognizes that it may appear somewhat odd that it is assessing the merits of Mejia's 28 U.S.C. § 2255 motion even though both parties agree that it should be granted. However, while "[c]onfessions of error are, of course, entitled to and given great weight," "they do not relieve [a] Court [from] the performance of the judicial function." Sibron v. New York, 392 U.S. 40, 58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (internal quotation marks and citation omitted). This is because "the proper administration of the criminal law cannot be left merely to the stipulation of parties." Young v. United States, 315 U.S. 257, 258, 62 S.Ct. 510, 86 L.Ed. 832 (1942). More concretely, "[d]espite the government's concession that the conviction on [a count] should be vacated, [the Court] ha[s] a duty to give the matter [its] independent review." United States v. Gonzalez, 93 F.3d 311, 319 (7th Cir. 1996).
A. Mejia's Motion Is Timely
As a threshold matter, Mejia's motion is timely. Mejia, first proceeding pro se, attested to placing his § 2255 motion in the prison mailing system on June 14, 2016. See Def.'s Mot., ECF No. 630. Motions by pro se prisoners are considered filed when placed in the prison mailing system. See Blount v. United States, 860 F.3d 732, 741 (D.C. Cir. 2017). The Supreme Court issued its decision in Johnson on June 26, 2015. Because Mejia filed his motion within one year of Johnson, his motion is timely. 28 U.S.C. § 2255(f)(3).
Mejia also filed his motion within one year of Welch v. United States, which made the rule in Johnson retroactively applicable to cases on collateral review. 578 U.S. 120, 129-30, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016).
Additionally, Mejia's supplemental motion filed through counsel is timely. Even though the supplemental motion was filed more than one year after the Johnson decision, claims raised after the one-year limitations period may still be considered if they "relate back" to timely claims. Claims relate back to the initial § 2255 motion if they "arose out of the conduct, transaction or occurrence set out . . . in the original [motion]." Fed. R. Civ. P. 15(c)(1)(B); see United States v. Hicks, 283 F.3d 380, 383 (D.C. Cir. 2002). But later-raised claims will not relate back when they "assert[ ] a new ground for relief" based on "facts that differ in both time and type" from the facts supporting the original pleading. Mayle v. Felix, 545 U.S. 644, 650, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005); see United States v. Coughlin, 251 F. Supp. 3d 212, 218-19 (D.D.C. 2017). Mejia's supplemental motion argues that his conviction is unconstitutional under both Johnson and Davis, the latter case relying on the same logic as the former. Def.'s Suppl. Mot. at 8. Because Mejia challenges the same conviction with similar arguments, the claims in his supplemental motion "relate back" to his original § 2255 and are thus not time-barred.
The Supreme Court has not yet held the right recognized in Davis to be retroactive. Though the D.C. Circuit has not addressed the question, a majority of circuits to consider the issue have determined that Davis announced a new substantive rule of constitutional law that was made retroactive. See, e.g., King v. United States, 965 F.3d 60, 64 (1st Cir. 2020); In re Thomas, 988 F.3d 783, 788 (4th Cir. 2021); United States v. Reece, 938 F.3d 630, 635 (5th Cir. 2019); In re Franklin, 950 F.3d 909, 910-11 (6th Cir. 2020); United States v. Bowen, 936 F.3d 1091, 1097-101 (10th Cir. 2019); In re Hammoud, 931 F.3d 1032, 1038-39 (11th Cir. 2019). Because the D.C. Circuit has not opined on the issue, and because Mejia's supplemental motion is timely because it relates back to his original motion, this Court takes no position on the retroactivity of Davis.
B. Mejia Is Not Procedurally Barred from Raising His § 2255 Claim
Additionally, the Court finds that Mejia's motion is not procedurally barred because he has shown cause and prejudice.
In the alternative, Mejia argues that his motion is entitled to an adjudication on the merits based on the actual-innocence exception to the procedural requirements. Def.'s Suppl. Mot. at 17 (citing Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). In support, he includes citations to decisions holding that intervening changes in law result in a defendant's factual innocence of the crime of conviction, as opposed to "mere legal insufficiency," thereby meeting the actual-innocence standard set forth in Bousley. See id. at 17-19. Because the Court determines that Mejia has established cause and prejudice, the Court declines to address Mejia's alternative argument.
His invocation of Johnson establishes cause. As the D.C. Circuit acknowledged, "no one—[let alone pleading defendants]—could reasonably have anticipated Johnson." United States v. Redrick, 841 F.3d 478, 480 (D.C. Cir. 2016). Accordingly, until the Supreme Court decided Johnson, Mejia "did not have a reasonable basis upon which to challenge the constitutionality of ACCA's residual clause." See United States v. Booker, 240 F. Supp. 3d 164, 170 (D.D.C. 2017) (internal citation and quotation marks omitted). Judges in this District "universally have rejected the government's repeated effort to foreclose through procedural default habeas motions seeking the benefit of Johnson." United States v. Hammond, 354 F. Supp. 3d 28, 43 (D.D.C. 2018). Since "[t]he constitutional right Johnson vindicated was unforeseeable," Mejia has shown cause. Id.
Mejia has also established prejudice. "The Supreme Court has yet to define the exact contours of the prejudice standard in the § 2255 procedural-default context." United States v. McKinney, 60 F.4th 188, 195 (4th Cir. 2023). However, when "the defendant's conviction and punishment are for an act that the law [now] does not make criminal, then there can be no room for doubt that such a circumstance inherently results in a complete miscarriage of justice and presents exceptional circumstances that justify collateral relief under § 2255." Id. (citing Davis v. United States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)) (internal quotation marks and alterations omitted); see also Raines v. United States, 898 F.3d 680, 687 (6th Cir. 2018); United States v. Snyder, 871 F.3d 1122, 1127-28 (10th Cir. 2017). Mejia was sentenced to a total of 141 months' imprisonment, consisting of 57 months' incarceration for Count 1 with a consecutive 84 months' incarceration for Count 23. If no valid predicate offenses existed for Count 23, he would not have pleaded guilty to, been convicted of, or sentenced to the additional, mandatory prison term for that charge. Therefore, Mejia has clearly met his burden to shown a "reasonable probability" that the "result of the proceeding would have been different." See Pettigrew, 346 F.3d at 1144; Dominguez Benitez, 542 U.S. at 83, 124 S.Ct. 2333.
Moreover, the Supreme Court has opined, albeit in a different context, that a sentence that contains "any amount of actual jail time" has constitutional significance. See Glover v. United States, 531 U.S. 198, 200, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001).
C. Only a Federal Crime May Serve as a Predicate to a 18 U.S.C. § 924(c) Conviction
In order to address the merits of Mejia's 28 U.S.C. § 2255 motion, the Court must decide which of Mejia's convictions could have served as predicate offenses for his 18 U.S.C. § 924(c) conviction. Mejia argues that only the federal VICAR counts, and not the D.C. Code offenses, are viable predicate offenses for a federal § 924(c) conviction. Def.'s Suppl. Mot. at 14. In support, Mejia cites United States v. Brown, which adopted this position. See 58 F. Supp. 3d 115, 116 (D.D.C. 2014). The government does not explicitly address this point in its briefing, nor was it raised in the parties' joint motion. Nevertheless, the Court must decide the issue to rule on the merits of Mejia's motion. This Court agrees with Brown and concludes that only federal offenses may serve as predicate offenses for a § 924(c) conviction.
The conclusion turns on the proper interpretation of 18 U.S.C. § 924(c)(1)(A), which criminalizes the use or possession of a firearm "during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States" (emphases added). Thus, on its face, it is unclear if the statute refers to crimes charged in federal or state courts. As Brown observed, in most other jurisdictions within this country, § 924(c) is limited to federal crimes prosecuted in federal courts. See 58 F. Supp. 3d at 120 & n.11 (citing 28 U.S.C. § 451 ("The term 'court of the United States' includes . . . district courts constituted by [statute]"); 18 U.S.C. § 3231 ("The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States")).
But this "District Court has unique jurisdictional features." Id. at 121. Pursuant to the Court Reform Act, Pub. L. No. 91-358, title I, § 111, 84 Stat. 473, 477-78 (1970) (codified at D.C. Code § 11-502(3)), this Court exercises jurisdiction over federal offenses and may exercise jurisdiction over local D.C. Code criminal offenses "in a manner similar to pendent jurisdiction." Id. (citing United States v. Kember, 648 F.2d 1354, 1359-60 (D.C. Cir. 1980)). Thus, the government may charge both federal and D.C. Code offenses in the same indictment in this District, as the government did in Mejia's case. However, the fact that the government may so charge cases here as a matter of case administration does not explain whether Congress intended for local D.C. Code offenses to serve as predicate offenses to the ever-increasing penalties for violating 18 U.S.C. § 924(c). Cf. Abbott v. United States, 562 U.S. 8, 18-19, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010). This Court finds the Brown court's analysis of judicial decisions interpreting § 924(c), as well as the statutory history, to be persuasive evidence that "Congress intended for § 924(c) to reach only federal, U.S. Code crimes." Brown, 58 F. Supp. 3d at 116.
Therefore, the Court will evaluate whether any of the VICAR counts, the federal offenses to which Mejia pleaded guilty, remain valid predicate offenses for his § 924(c) conviction.
Though Mejia urged this Court in his supplemental brief to adopt the Brown court's reasoning and only focus on the federal counts as potential predicates, Def.'s Suppl. Mot. at 15-16, his reply brief did not address this argument and instead focused on the contention that D.C. armed robbery was the only predicate offense and that D.C. armed robbery is not a crime of violence. See Def.'s Reply at 2-3. And the government agreed in its sur-reply that D.C. armed robbery is not a crime of violence. See Gov't Sur-Reply at 7 n.3. Because this Court holds that D.C. Code offenses alone may not serve as valid predicates to a federal § 924(c) conviction, the Court takes no position on whether D.C. armed robbery is a crime of violence.
D. None of Mejia's Potential Predicate Offenses Are Categorically Crimes of Violence
Turning to the merits, and the "rather mechanical" exercise under the categorical approach, Redrick, 841 F.3d at 482, Court agrees with the parties that none of the potential predicate offenses for Mejia's § 924(c) conviction meet that statute's definition of a "crime of violence" and therefore the conviction must be vacated.
For this reason, the Court need not address the parties' arguments as to whether Mejia's § 924(c) conviction was predicated on multiple offenses or a single offense.
The plea agreement excludes Count 1, RICO conspiracy, as a predicate. See Plea Agreement at 1 (stating that Mejia "will admit his guilt in connection with possession and brandishing of a firearm during and in connection with the crimes charged in Counts Two through Twenty-Two"). And, as discussed above, none of Mejia's D.C. Code convictions, standing alone, are valid predicate offenses to the § 924(c) conviction. Thus, the possible predicate offenses supporting that conviction are the federal offenses of VICAR kidnapping, VICAR kidnapping while armed, and VICAR ADW. Courts generally determine whether a federal VICAR count is a "crime of violence" based on whether the state law predicate to the VICAR conviction is a "crime of violence." See United States v. Carson, 455 F.3d 336, 367-68 (D.C. Cir. 2006); United States v. Cooper, 610 F.Supp.3d 184, 203-205 (D.D.C. 2022). Thus, the Court must decide whether the elements of D.C. kidnapping, D.C. kidnapping while armed, or D.C. ADW make these offenses "crimes of violence."
As another judge in this District has noted, "[b]ecause the VICAR statute does not define its offenses, courts have employed two methodologies to determine whether a VICAR conviction satisfies the elements clause." Sorto v. United States, No. 08-167-4 (RJL), 2022 WL 558193, at *3 n.7 (D.D.C. Feb. 24, 2022). "Some have applied the categorical approach to the state-crime predicate underlying the VICAR conviction," and "others have applied the categorical approach to the VICAR conviction itself." Id. This Court favors the former approach because it is the practice implicitly followed by the D.C. Circuit and explicitly followed by a majority of the circuits to examine the issue. See, e.g., United States v. Carson, 455 F.3d 336, 367-68 (D.C. Cir. 2006): Moore v. United States, No. 16-3715-PR, 2021 WL 5264270, at *2 (2d Cir. Nov. 12, 2021); United States v. Mathis, 932 F.3d 242, 264-65 (4th Cir. 2019); United States v. Peeples, 879 F.3d 282, 287 (8th Cir. 2018); United States v. Mejia-Quintanilla, 859 F. App'x 834, 836 (9th Cir. 2021); United States v. Toki, 23 F.4th 1277, 1280-81 (10th Cir. 2022).
Though Mejia's argument has evolved over time, the government has consistently maintained that VICAR ADW remained a valid predicate offense for Mejia's § 924(c) conviction. This position was based on United States v. Haight, where the D.C. Circuit expressly held that D.C. ADW qualifies as a "crime of violence" under ACCA. 892 F.3d 1271, 1279 (D.C. Cir. 2018). However, in Borden v. United States, decided while Mejia's appeal of the denial of his certificate of appealability was pending at the D.C. Circuit, the Supreme Court abrogated Haight and held that a crime requiring a mens rea of only recklessness does not qualify as a "violent felony." — U.S. —, 141 S. Ct. 1817, 1821-22, 210 L.Ed.2d 63 (2021). While the D.C. Circuit has not addressed this issue since Borden, the Fourth Circuit has since held that D.C. ADW can no longer "categorically qualify as a violent felony under the ACCA" because "convictions for assault with a dangerous weapon in the District of Columbia have been 'sustained . . . based on reckless conduct.' " United States v. Barnes, 855 F. App'x 893, 894 (4th Cir. 2021) (quoting Vines v. United States, 70 A.3d 1170, 1180 (D.C. 2013)). This Court agrees with the Fourth Circuit and finds that, because D.C. ADW can be committed recklessly, Mejia's VICAR ADW convictions, predicated on D.C. ADW, are not valid predicate offenses to Mejia's § 924(c) conviction.
In the context of ACCA, the Supreme Court considers the terms "violent felony" and "crime violence" to be virtually synonymous. See Borden, 141 S. Ct. at 1830. Indeed, the terms' elements clauses are substantially similar. Compare 18 U.S.C. § 924(c)(3)(A) (defining "crime of violence" as "an offense that is a felony and . . . has as an element the use, attempted use, or threatened use of physical force against the person or property of another") with id. § 924(e)(2)(B) (defining "violent felony" as "any crime punishable by imprisonment for a term exceeding one year . . . that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another").
The parties further stipulate, and the Court agrees, that neither VICAR kidnapping nor VICAR kidnapping while armed can satisfy § 924(c)'s "crime of violence" element. Joint Mot. ¶ 9. D.C. kidnapping no longer qualifies as a "crime of violence" because the D.C. Code offense, like its federal equivalent, lists multiple means that do not involve force. See United States v. Walker, 934 F.3d 375, 378 (4th Cir. 2019); United States v. Wolford, 444 F.2d 876, 879-80 (D.C. Cir. 1971); see also Gov't Opp'n at 12 (citing Chatwin v. United States, 326 U.S. 455, 460, 66 S.Ct. 233, 90 L.Ed. 198 (1946)). Thus, VICAR kidnapping, predicated upon D.C. kidnapping, no longer remains a valid predicate. Similarly, D.C. kidnapping while armed is not a "crime of violence" because its elements require only that a weapon be "readily available"—not that the defendant use or intend to use the weapon. See Clyburn v. United States, 48 A.3d 147, 153-54 (D.C. 2012); Broadie v. United States, 925 A.2d 605, 617-18 (D.C. 2007); Jamison v. United States, 670 A.2d 373, 374 (D.C. 1996); Def.'s Suppl. Mot. at 28 n.10.
Therefore, because none of the potential predicate offenses to Mejia's § 924(c) conviction necessarily involve force as an element, they are not categorically "crimes of violence."
* * *
As illustrated here, the categorical approach "forces judges into an alternative reality" where they "ignore facts already known" about the nature of the underlying offense "and instead proceed with eyes shut." United States v. West, 314 F. Supp. 3d 223, 232 n.6 (D.D.C. 2018) (internal citations omitted). Nevertheless, the categorical approach is the law of this Circuit, and this country, and thus binds this Court.
Accordingly, upon consideration of the record, the applicable law, and the parties' briefing, the Court finds that there are no material facts in dispute and that Mejia is entitled to relief. The Court thus concludes that Mejia's § 924(c) conviction is "imposed in violation of the Constitution or laws of the United States," 28 U.S.C. § 2255(a), and must be vacated, id. § 2255(b).
IV. CONCLUSION
For the foregoing reasons, the Court hereby GRANTS Defendant's Motion [628] to Vacate, Set Aside, or Correct His Sentence Pursuant to 28 U.S.C. § 2255, GRANTS Defendant's Supplemental Motion [662] in support thereof, and GRANTS the parties' Joint Motion [709] for Entry of Stipulated Disposition. The Court will vacate the conviction under 18 U.S.C. §§ 924(c)(1)(A), (2) in Count 23 and the associated sentence as set forth in the Judgment. A separate Amended Judgment shall issue.
IT IS SO ORDERED.