Opinion
Criminal Action No. 99-0266 (ABJ)
2022-06-30
UNITED STATES, v. Carl COOPER, Defendant.
Margaret J. Chriss, Assistant U.S. Attorney, U.S. Attorney's Office Special Proceedings Section, Washington, DC, Sara Guccini Vanore, Assistant U.S. Attorney, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States. Benjamin M. Flick, Public Defender, Federal Public Defender for the District of Columbia, Washington, DC, for Defendant. Carl Cooper, Coleman, FL, Pro Se.
Margaret J. Chriss, Assistant U.S. Attorney, U.S. Attorney's Office Special Proceedings Section, Washington, DC, Sara Guccini Vanore, Assistant U.S. Attorney, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States.
Benjamin M. Flick, Public Defender, Federal Public Defender for the District of Columbia, Washington, DC, for Defendant.
Carl Cooper, Coleman, FL, Pro Se.
MEMORANDUM OPINION & ORDER
AMY BERMAN JACKSON, United States District Judge
Pending before the Court is the motion filed by defendant Carl Cooper pursuant to 28 U.S.C. § 2255. He was convicted in 2000 of forty-seven counts, and he seeks to vacate the eight convictions for violations of 18 U.S.C. § 924 now that the Supreme Court has held that the residual clause of that criminal statute is unconstitutionally vague. Mot. to Vacate Under 28 U.S.C. § 2255 [Dkt. # 163] ("Def.’s Mot.") at 4, citing United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019) ; Def.’s Suppl. Mot. to Vacate J. Under 28 U.S.C. § 2255 Based on Johnson and Davis [Dkt. # 166] ("Def.’s Suppl. Mot.") at 1. For the reasons set forth below, the Court will GRANT the motion in part as to Counts 16 and 46 and DENY it in part as to the remainder of the challenged counts: 7, 12, 25, 36, 39, and 42.
BACKGROUND
This matter arises out of a series of robberies and murders committed in the District of Columbia, Maryland, and Pennsylvania from 1993 to 1997, including the murder of three employees in a Washington, D.C. Starbucks coffee shop in 1997. Indictment [Dkt. # 1] at 5–10. On August 4, 1999, a grand jury sitting for the U.S. District Court of District of Columbia indicted defendant on forty-eight counts related to those crimes. Indictment; Gov't’s Opp. to Def.’s Mot. [Dkt. # 170] ("Gov't Opp.") at 2. Of the forty-eight counts, eight charged violations of section 924(c) :
Given the age of this case, many of the pleadings pre-dating defendant's instant motion are not available on the Court's electronic docket but are in the hardcopy files available in the Office of the Clerk of Court. The Court will cite to these documents by docket number as assigned on the electronic docket.
Count Seven: 18 U.S.C. § 924(c), Use of a Firearm during a Crime of Violence on June 4, 1996.
Count Twelve: 18 U.S.C. § 924(c), Use of a Firearm during a Crime of Violence on August 12, 1996.
Count Sixteen: 18 U.S.C. § 924(c), Use of a Firearm during a Crime of Violence on September 8, 1996.
Count Twenty-Five: 18 U.S.C. § 924(c), Use of a Firearm during a Crime of Violence on June 26, 1997.
Count Thirty-Six: 18 U.S.C. §§ 2, 924(c), (j), Murder in the Course of Using a Firearm during a Crime of Violence on July 6, 1997.
Count Thirty-Nine: 18 U.S.C. §§ 2, 924(c), (j), Murder in the Course of Using a Firearm during a Crime of Violence on July 6, 1997.
Count Forty-Two: 18 U.S.C. §§ 2, 924(c), (j), Murder in the Course of Using a Firearm during a Crime of Violence on July 6, 1997.
Count Forty-Six: 18 U.S.C. § 924(c), Use of a Firearm during a Crime of Violence in 1997.
See Indictment.
On April 25, 2000, pursuant to Federal Rule of Criminal Procedure 11(e)(1)(C), defendant pled guilty to all forty-eight counts. Plea Agreement [Dkt. # 150]; see also Def.’s Suppl. Mot. at 1. The court accepted the plea agreement on the same day and entered judgment on forty-seven counts, dismissing Count 20 on the government's motion. See J. in a Crim. Case [Dkt. # 160] ("Judgment"). Among other offenses, defendant was convicted of one count of first degree murder while armed and one count of felony murder while armed on June 10, 1993; three counts of first degree murder while armed and three counts of felony murder while armed on July 6, 1997; two counts of Hobbs Act robbery on June 14, 1997 and June 26, 1997; and four counts of conspiracy to interfere with commerce by robbery. See Judgment at 1.
The court imposed the agreed sentence that included five concurrent terms of life imprisonment without the possibility of parole, plus an additional 107 mandatory consecutive years. Judgment at 3; see also Def.’s Suppl. Mot. at 1. Two of the five concurrent life imprisonment sentences were for Counts 1 and 2, which defendant does not challenge. See Judgement at 3. The other three sentences of life imprisonment were imposed for violations of section 924 : Counts 36, 39, and 42. See Judgment at 3. The remainder of the section 924(c) convictions resulted in a total of 107 years in addition to the five concurrent life sentences: seven years on Count 7 and twenty-five years on Counts 12, 16, 25, and 46 to be served consecutively. Id.
Defendant did not file any direct appeals. Def.’s Suppl. Mot. at 2; Gov't Opp. at 7.
Section 924(c) provides for enhanced punishment of those defendants convicted of the use of a firearm during the commission of a "crime of violence," which is defined by the statute to "mean[ ] an offense that is a felony and – (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) 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. " 18 U.S.C. § 924(c)(3) (emphasis added). On June 25, 2019, the Supreme Court held that what has been referred to as the "residual clause" of the provision was unconstitutionally vague. United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2326, 204 L.Ed.2d 757 (2019), citing Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1216, 200 L.Ed.2d 549 (2018).
On June 8, 2020, defendant filed a pro se section 2255 motion to vacate his eight convictions under section 924(c) – counts 7, 12, 16, 25, 36, 39, 42, and 46 – given the Davis ruling. Def.’s Mot. at 4. On October 20, 2020, the Federal Public Defender filed a supplement to defendant's pro se motion, arguing that two of the eight convictions – 16 and 46 – are invalid. See Def.’s Suppl. Mot. The government opposed the motion, Gov't Opp., and defendant replied. Reply in Support of Motion to Vacate Judgment under 28 U.S.C. § 2255 [Dkt. # 171]. On June 15, 2021, defendant filed a second supplement to his submission. Second Suppl. Mot. to Vacate [Dkt. # 172].
The case was reassigned to this Court on June 11, 2020 because the sentencing judge was retired by that time. See Dkt. Entry (June 11, 2020).
LEGAL STANDARD
Section 2255 requires a court to vacate a defendant's sentence if it finds "that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). The court must "set the judgment aside" and "discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id.
To prevail on a motion to vacate a sentence under this provision, defendant must show that his "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). A defendant bears the burden of proving his claims by a preponderance of the evidence. See United States v. Simpson , 475 F.2d 934, 935 (D.C. Cir. 1973). "Relief under § 2255 is an extraordinary remedy in light of society's legitimate interest in the finality of judgments." United States v. Zakas , 793 F. Supp. 2d 77, 80 (D.D.C. 2011). So the defendant in a section 2255 proceeding "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady , 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).
When considering a section 2255 motion, the decision to hold a hearing "is committed to the district court's discretion." United States v. Pollard , 959 F.2d 1011, 1030–31 (D.C. Cir. 1992). The statute provides that the court must hear the matter "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). The rules governing section 2255 proceedings add that "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." R. Governing § 2255 Proceedings in U.S. District Courts 4(b). "[S]ummary denial of a § 2255 motion is appropriate ... when the [claims do] not necessitate the consideration of any information not within the record or within the memory of the judge ruling on the motion." United States v. Morrison , 98 F.3d 619, 626 (D.C. Cir. 1996). ANALYSIS
When defendant was sentenced in 2000, section 924(c)(3) defined a "crime of violence" as a felony offense that either:
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) 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.
18 U.S.C. § 924(c)(3). Defendant's motion seeks to invalidate his convictions under subpart (B), referred to as the residual clause, because the Supreme Court in Davis held that the residual clause was constitutionally vague. Def.’s Mot. at 4, citing Davis , 139 S. Ct. at 2319 (challenging all eight convictions under subpart B); Def.’s Suppl. Mot. (addressing only challenges to Counts 16 and 46). The government argues that defendant has failed to satisfy the procedural requirements for filing a section 2255 motion, and that Davis does not invalidate the challenged convictions in any event. See Gov't Opp.
I. The Supreme Court's Residual Clause Rulings
In 2015, the Supreme Court ruled that the "residual clause" of the Armed Career Criminal Act's ("ACCA") was unconstitutionally vague. Johnson v. United States , 576 U.S. 591, 597, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces a more severe punishment if he has three or more previous convictions for a "violent felony." Id. at 593, 135 S.Ct. 2551. The statute defined a "violent felony" to include "[a]ny crime punishable by imprisonment for a term exceeding one year ... that ... involves conduct that presents a serious potential risk of physical injury to another. " 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). The Supreme Court ruled that the italicized portion of the statute, referred to as the "residual clause," was void for vagueness. Johnson , 576 U.S. at 597, 135 S.Ct. 2551. In accordance with the case law that preceded Johnson , courts were required to use the "categorical approach" when determining if an offense qualified as a violent felony under the ACCA; that is, courts must assesses a crime "in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." Id. at 596, 135 S.Ct. 2551, quoting Begay v. United States , 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Given this required approach, the Supreme Court held that the ACCA's residual clause had two features that made it unconstitutionally vague. Id. at 597, 135 S.Ct. 2551. First, it created "grave uncertainty about how to estimate the risk posed by a crime" by tying "the judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory elements." Id. Further, the clause left unclear how much risk was required "for a crime to qualify as a violent felony." Id. at 598, 135 S.Ct. 2551. The Court concluded that "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." Id. at 597, 135 S.Ct. 2551. Therefore, it found that increasing a defendant's sentence under that provision violated the constitutional guarantee of due process, expressly overruling its prior decisions to the contrary in James v. United States , 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) and Sykes v. United States , 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). Id. at 606, 135 S.Ct. 2551.
Three years later, in Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018), the Court ruled that a similarly-worded residual clause in 18 U.S.C. § 16 was unconstitutional. That statute defined a "crime of violence" to include a 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." 138 S. Ct. at 1211 (emphasis omitted), quoting 18 U.S.C. § 16. Relying on its analysis in Johnson , the Court held that this residual clause, which also required courts to use the "categorical approach" to determine if an offense qualified as a crime of violence, had "the same two features as ACCA's, combined in the same constitutionally problematic way." Id. at 1211–13. It "call[ed] for a court to identify a crime's ‘ordinary case’ in order to measure the crime's risk" and presented the same "uncertainty about the level of risk that makes a crime ‘violent.’ " Id. at 1215 ; see also id. at 1216 (explaining that like the ACCA clause, the section 16 clause "required courts to picture the kind of conduct that the crime involves in the ordinary case, and to judge whether that abstraction presents some not-well-specified-yet-sufficiently-large degree of risk") (internal quotation marks omitted).
The full text of the statute is as follows: "The term ‘crime of violence’ means – (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and 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." 18 U.S.C. § 16.
Finally, in 2019, the Supreme Court ruled in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), that the residual clause in 18 U.S.C. § 924(c) was also unconstitutionally vague. Section 924(c)(1) provides increased penalties for "any person who, during and in relation to any crime of violence ..., uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm," and section 924(c)(3) defined a "crime of violence" to be a felony that
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) 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.
Davis , 139 S. Ct. at 2324, quoting 18 U.S.C. § 924(c)(3) (emphasis added to residual clause). In finding the second clause of the definition vague, the Court relied on its analyses in Johnson and Dimaya and observed that the clauses held unconstitutional in those cases "bear more than a passing resemblance" to section 924(c)(3)(B). Id. at 2325–27. Acknowledging that applying "exactly the same categorical approach that [the Supreme] Court found problematic in the ACCA and § 16" to section 924(c)(3)(B) would make it unconstitutional, the government urged the Court to rule that a case-specific approach should be utilized when applying the clause in the future. Id. at 2326–27. The Court rejected this argument based on the statute's text, context, and history, id. at 2324, noting that "[f]or years, almost everyone understood § 924(c)(3)(B) to require ... the ... categorical approach." Id. at 2326.
Section 924(e) of the ACCA defines a "violent felony" as a felony offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). Section 924(c) at issue here defines a "crime of violence" as a felony offense that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A) (emphasis added).
II. Defendant's Motion is Not Barred by Procedural Default.
The Supreme Court's residual clause rulings are relevant not only to the merits of defendant's motion, but also to the government's argument that defendant's motion is untimely under the procedural default rule. See Gov't Opp. at 9–10. The procedural default rule generally precludes a court from considering an argument made on collateral review that was not made on direct appeal. United States v. Hughes , 514 F.3d 15, 17 (D.C. Cir. 2008). Defendant did not appeal his conviction or sentence. But a defendant can avoid procedural default by showing cause and prejudice. Id. Cause can be shown "where a constitutional claim is so novel that its legal basis [was] not reasonably available to counsel," but not where 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 quotation marks omitted); see Reed v. Ross , 468 U.S. 1, 17, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) (holding that, among other circumstances, an argument is novel when the Supreme Court explicitly overrules its own precedent or when it overturns "a longstanding and widespread practice ... which a near-unanimous body of lower court authority ha[d] expressly approved"). Prejudice can be shown by demonstrating "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) (internal quotation marks and alterations omitted); see Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Defendant has shown both cause and prejudice. First, the state of the law at the time of his conviction and sentencing gave no "reasonable basis" to challenge section 924(c)(3)(B) as unconstitutionally vague. Reed , 468 U.S. at 17, 104 S.Ct. 2901. As the D.C. Circuit has observed, "no one ... could reasonably have anticipated Johnson ." United States v. Redrick , 841 F.3d 478, 480 (D.C. Cir. 2016) ; see also Davis , 139 S. Ct. at 2326 ("For years, almost everyone understood § 924(c)(3)(B) to require exactly the same categorical approach that this Court found problematic in the residual clauses of the ACCA and § 16."); id. at 2326 n.4 (listing cases); see also Carter v. United States , No. 16-cv-02184, 2019 WL 4126074, at *5 (C.D. Ill. Aug. 29, 2019) (determining that defendant had shown cause for not raising his Davis claim previously because "while Davis might have been anticipated after Johnson was decided, at the time of [the petitioner's] trial and direct appeal, no one could have reasonably anticipated Davis "). Until Johnson , Dimaya , and Davis , the Supreme Court had not spoken on the vagueness of the residual clauses. At least three circuits had expressly rejected void-for-vagueness challenges to the ACCA clause. See, e.g., United States v. Presley , 52 F.3d 64, 68 (4th Cir. 1995), cert. denied , 516 U.S. 891, 116 S.Ct. 237, 133 L.Ed.2d 165 (1995) ; United States v. Sorenson , 914 F.2d 173, 175 (9th Cir. 1990), cert. denied , 498 U.S. 1099, 111 S.Ct. 993, 112 L.Ed.2d 1076 (1991) ; United States v. Veasey , 73 F.3d 363, 1995 WL 758439, at *2 (6th Cir. 1995) (unpublished table decision). And twice after Cooper's sentencing, the Supreme Court upheld the constitutionality of the ACCA's residual clause. See James v. United States , 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), overruled by Johnson ; Sykes v. United States , 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), overruled by Johnson . The residual clause rulings overturned two Supreme Court cases and overturned longstanding and widespread practice that a "near-unanimous body of lower court authority ha[d] expressly approved." Reed , 468 U.S. at 17, 104 S.Ct. 2901. Thus, the Court finds that Cooper did not have a reasonable basis to challenge section 924 as unconstitutionally vague at the time of his conviction and sentencing. See United States v. Carter , 422 F. Supp. 3d 299, 310 (D.D.C. 2019) (collecting cases and noting the "widespread agreement" among courts in this district that a defendant did not have reasonable basis to challenge the constitutionality of the ACCA residual clause). Given this ruling, defendant's section 2255 motion is timely. 28 U.S.C. § 2255(f)(3) (imposing a one-year statute of limitations on section 2255 motions from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review").
Indeed, even after Johnson , the D.C. Circuit ruled that section 924(c)(3)(B) – the residual clause at issue here – was constitutional. See United States v. Eshetu , 863 F.3d 946, 953–55 (D.C. Cir. 2017) (distinguishing the section 924(c)(3) clause from the ACCA clause). It only ruled section 924(c)(3) to be unconstitutional after the Supreme Court handed down Dimaya . See United States v. Eshetu , 898 F.3d 36 (D.C. Cir. 2018) (per curiam) (vacating Eshetu , 863 F.3d 946 (D.C. Cir. 2017), in part and granting rehearing to vacate section 924(c) convictions in light of Dimaya ).
The issue of prejudice merges with the merits of defendant's motion. A defendant is prejudiced by being convicted and sentenced on a charge that is unconstitutional, see United States v. Lewis , 904 F.3d 867, 870 (10th Cir. 2018), but to determine if there is prejudice, the Court must determine if any of defendant's convictions under section 924(c) are invalid.
The Court needs only the record of this case to decide defendant's petition and does not need to resolve any factual allegations, so it will not hold a hearing on defendant's petition. See United States v. Pollard , 959 F.2d 1011, 1031 (D.C. Cir. 1992), quoting Machibroda v. United States , 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).
III. Two of Defendant's Convictions Must be Vacated.
Although defense counsel presented legal argument about only two of defendant's convictions, defendant challenged all eight section 924(c) convictions in his submissions. The Court will therefore address the merits of all the challenged convictions.
Each of the challenged convictions in this case involves the "use of a firearm during a crime of violence" on a particular date. See Judgment at 1–2 (Count 7 for offenses occurring on June 4, 1997; Count 12 for offenses occurring on August 12, 1996; Count 16 for offenses occurring on September 8, 1996; Count 25 for offenses occurring on June 26, 1997; Counts 36, 39, and 42 for offenses occurring on July 6, 1997; and Count 46 for offenses occurring from August 1997 to October 1997). Whether any conviction remain valid turns upon whether the underlying offense would qualify as a "crime of violence" under section 924(c)(3)(A) – the portion of the statute that survived Davis , commonly referred to as the "elements clause" – as opposed to section 924(c)(3)(B), the "residual clause." In other words, the Court must determine for each count whether the underlying offense in which a firearm was used was a felony that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). As explained above, courts must use the categorical approach to answer this question. It requires courts to look only to "the statutory definitions – i.e. , the elements – of a defendant's [conviction] and not to the particular facts underlying those convictions." Descamps v. United States , 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (emphasis in original) (internal quotation marks and citation omitted); see also United States v. Kennedy , 133 F.3d 53, 56 (D.C. Cir. 1998) ("A ‘crime of violence’ and a ‘serious violent felony’ are ordinarily designated as such by looking to the statutory definition of the crime, rather than the evidence presented to prove it."); Davis , 139 S. Ct. at 2328 (ruling that by focusing on the "nature" of an offense, "the statutory text [of section 924(c)(3)(B) ] commands the categorical approach"). The approach applies "when the crime of which the defendant was convicted has a single, indivisible set of elements." Descamps v. United States , 570 U.S. 254, 258, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). A state supreme court's interpretation of the elements of state law are binding. See Johnson v. United States , 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).
If the predicate offense is a crime for which a statute sets out the offense elements in the alternative – a so-called "divisible statute" – courts begin the analysis using the "modified categorical approach." Descamps , 570 U.S. at 257, 133 S.Ct. 2276 (explaining that a divisible statute "sets out one or more elements of the offense in the alternative – for example, stating that burglary involves entry into a building or an automobile"); see also Mathis v. United States , 579 U.S. 500, 505, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) (a statute that lists elements in the alternative "define[s] multiple crimes"). Under this approach, courts "examine a limited class of documents" to identify which alternative element formed the basis for the defendant's conviction, then analyze that element using the categorical approach. Id. at 570 U.S. at 262–64, 133 S.Ct. 2276 (explaining that the modified approach is a tool that allows a court to implement the categorical approach when considering a divisible statute and is not an exception to the categorical approach). The documents courts review include the indictment, jury instructions, the plea agreement, or the transcript of the colloquy between judge and defendant. Id. , citing Shepard , 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) at 13, 17, 26, 125 S.Ct. 1254.
Defendant argues that his section 924(c) convictions are invalid following Davis because they were predicated on offenses that do not categorically qualify as crimes of violence under the elements clause; that when applying the required assumption that the predicate offenses "rested on the least of the acts criminalized," the offenses are not crimes of violence because they are divisible and can be violated without the use, attempted use or threatened use of physical force against the person or property of another; that this makes him legally and actually innocent of committing crimes of violence; and that the Court does not have jurisdiction to sustain his convictions. Def.’s Mot. at 4–9. Defense counsel provides further legal arguments in support of the pro se motion but only for Count 16 and 46. See Def.’s Suppl. Mot.
The Court will address Counts 16 and 46 first, then address the other counts.
A. Count 16's Predicate Offenses of Pennsylvania Robbery and Pennsylvania Aggravated Assault Do Not Qualify as Crimes of Violence.
The crime underlying Count 16 was the September 8, 1996 robbery of four people at a massage parlor in Harrisburg, Pennsylvania. Indictment at 21; Judgment at 1. The indictment charged that defendant "used and carried pistols" during "the robbery of Richard Brown, Sharon Klinger, Stene Lantzy and Robert Hauser ... as set forth and charged as Racketeering Act Four in Count One" and "assault ... with a dangerous weapon, as charged in Count Fifteen." Indictment at 21. Count 1, Racketeering Act Four charged that defendant "did unlawfully, willfully and knowingly commit an act involving robbery ... in violation of 18 Pa.C.S., Section[ ] 3701," Pennsylvania's robbery statute. Indictment at 6–7. Count 15 charged that defendant "unlawfully, willfully and knowingly, while armed with a pistol, assaulted [the four victims] with a dangerous weapon, in violation of 18 Pa.C.S. § 2702(a)(1)," Pennsylvania's aggravated assault statute. Indictment at 20–21.
Count 1 also charged defendant with violating 18 Pa. C.S. § 6103, which imposes additional punishment under Pennsylvania law when a crime is committed with a firearm and is not relevant to the analysis of the elements of the robbery offense.
So the Court must examine Pennsylvania's robbery statute, 18 Pa.C.S. § 3701, and its aggravated assault statute, 18 Pa.C.S. § 2702(a)(1), to determine whether either "has as an element the use, attempted use, or threatened use of physical force against the person or property of another" to qualify as a crime of violence under section 924(c)(3)(A).
1. Pennsylvania Robbery, 18 Pa. C.S. § 3701, is not a crime of violence.
At the time of defendant's conviction and sentencing, the Pennsylvania robbery statute provided that
(a) Offense defined.–
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony of the first or second degree;
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury;
or
(v) physically takes or removes property from the person of another by force however slight.
(2) An act shall be deemed "in the course of committing a theft" if it occurs in an attempt to commit theft or in flight after the attempt or commission.
(b) Grading. – Robbery under subsection (a)(1)(iv) is a felony of the second degree; robbery under subsection (a)(1)(v) is a felony of the third degree; otherwise, it is a felony of the first degree.
Under Pennsylvania law, theft involves the unlawful taking or obtaining another's property. See 18 Pa. C.S. § 3921.
18 Pa. C.S. § 3701 (2000).
Given the separate, disjunctive provisions of this statute, the Court finds that the statute is divisible, and use of the modified categorial approach is appropriate. See Descamps , 570 U.S. at 262, 133 S.Ct. 2276 ; United States v. Blair , 734 F.3d 218, 225 (3d Cir. 2013) (holding that the Pennsylvania robbery statute is "obviously divisible" because it "clearly laid out alternative elements"); United States v. Peppers , 899 F.3d 211, 232 (3d Cir. 2018) (same), citing Mathis , 579 U.S. at 518, 136 S.Ct. 2243 (criminal statute is divisible where the statutory alternatives carry different punishments); see also United States v. McCants , 952 F.3d 416, 426–27, 426 n.2 (3d Cir. 2020) (reaffirming divisibility of the Pennsylvania robbery statute).
The parties agree that the Court must resort to the modified categorial approach. See Def.’s Suppl. Mot. at 10–11; Gov't Opp. at 30.
Further, the Court finds that the Shepherd documents do not clarify which provision of the robbery statute forms the basis of defendant's Count 16 conviction. See Indictment at 6–7; Plea Agreement [Dkt. # 150] (not addressing specific counts or elements of the statute); Tr. of Plea and Sentence (Apr. 25, 2000) [Dkt. # 158] ("Hr'g Tr.") at 64–69 (describing the facts alleged underlying the count but not the addressing specific counts or elements of the statute). In this circumstance, courts must "presume[ ] that the conviction rested upon nothing more than the least of the acts criminalized." Moncrieffe v. Holder , 569 U.S. 184, 190–91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (internal quotation marks omitted); United States v. Carr , 946 F.3d 598, 601 (D.C. Cir. 2020) (the question is whether the least of the acts criminalized are encompassed by the generic federal offense), citing Moncrieffe , 569 U.S. at 191, 133 S.Ct. 1678 ; United States v. Chapman , 666 F.3d 220, 228 (4th Cir.) ("[T]he rule is that the defendant admits to the least serious of the disjunctive statutory conduct."). The parties appear to agree that subparagraph (iii) sets out the least serious offense. See Def.’s Suppl. Mot. at 10–11; Gov't Opp. at 29–37.
The parties also agree about this. Def.’s Suppl. Mot. at 10–11; Gov't Opp. at 30.
The Court must determine whether "the use, attempted use, or threatened use of physical force against the person or property of another," 18 U.S.C. § 924(c)(3)(A), is an element of subsection (iii), which makes it a robbery in Pennsylvania to "commit[ ] or threaten[ ] immediately to commit any felony of the first or second degree" "in the course of committing a theft." 18 Pa. C.S. § 3701(a)(1)(iii). Defendant asserts it is not because there are numerous non-violent felonies under Pennsylvania law. See Def.’s Suppl. Mot. at 11. The government agrees these non-violent felonies exist under state law and, indeed, identifies five of them. Gov't Opp. at 30 (destruction of an agricultural crop used in research, 18 Pa. Cons. Stat. § 3310 ; unlawfully accessing a trade secret, 18 Pa. Cons. Stat. § 3930(a) ; forgery of stock, bond, or government instrument, 18 Pa. Cons. Stat. § 4101(c) ; willful securities fraud, 70 Pa. Cons. Stat. § 1-511(b); use of computer spyware, 73 Pa. Cons. Stat. § 2330.8). So looking only at the elements of the Pennsylvania robbery statute, it is undisputed that a defendant can violate subsection (iii) without ever coming into physical contact with anyone or anything – for example, by willfully engaging in a securities fraud while committing a theft. Nevertheless, the government urges the Court to ignore the elements as set forth in the statute and delve into its legislative history and application by state prosecutors to conclude otherwise. See Gov't Opp. at 30–37. It cites a Pennsylvania Supreme Court case, Commonwealth v. Brown , 506 Pa. 169, 484 A.2d 738, 740–41 (1984), which summarizes the development of the robbery statute and explains that the "amount of force used is relevant only" in grading an offense as a first, second, or third degree felony "in keeping with the legislative directive to punish robbers according to the amount of violence they inflict on their victims. " See 484 A.2d at 740–41 (emphasis added). While the italicized text may suggest that some amount of violence is required to prove robbery under subsection the statute, Brown ’s holding concerned the amount of force required to violate subsection (iv) of the statute, not what is required to prove a violation of subsection (iii).
Defendant points out that the government has already conceded this argument in another case. Def.’s Suppl. Mot. at 11, citing United States v. Singleton , 252 F. Supp. 3d 423, 430 (E.D. Pa. 2017). But the Court will not rely on a concession made five years ago in another case for its ruling.
Because the facts of a defendant's crime are irrelevant to the categorial approach, it does not matter whether defendant brandished a gun in front of the victims at the Harrisburg massage parlor. See Taylor v. United States , 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (requiring courts look at the statutory definition of the predicate offense, rather than to the particular underlying facts); Hr'g Tr. at 68 (defendant acknowledging that he brandished a gun during the robbery and that the victims saw it).
See also Brown , 484 A.2d at 741 (holding with respect to third-degree robbery under the statute, it is clear "any amount of force applied to a person while committing a theft brings that act within the scope of robbery under § 3701(1)(a)(v)").
Noting that the categorical approach "requires a realistic probability, not a theoretical possibility," that the state would apply subsection (iii) to conduct that falls outside the generic definition of a crime, the government emphasizes that every published application of subsection (iii) involved a threat to commit a violent crime, supporting its argument that subsection (iii) applies only to offenses involving physical force. Gov't Opp. at 36–37, quoting Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). While Duenas-Alvarez indicates that how state courts apply a statute "in the special (nongeneric) manner" may inform a categorical approach analysis, 549 U.S. at 193, 127 S.Ct. 815, it does not undermine the core tenant of the categorical approach, which "focus[es] on the minimum conduct criminalized by the state statute." Moncrieffe v. Holder , 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ; see United States v. Redrick , 841 F.3d at 484–85, quoting Duenas-Alvarez , 549 U.S. at 193, 127 S.Ct. 815 (citing the Supreme Court's caution against excessive "legal imagination" and rejecting "farfetched" hypotheticals that because poison, an open flame, or lethal bacteria could satisfy the "dangerous or deadly weapon" element of the Maryland armed robbery statute, the statute could be read to sweep in offenses that did not involve physical force); Zhi Fei Liao v. Att'y Gen. United States , 910 F.3d 714, 723 n.9 (3d Cir. 2018) ("[I]t is unnecessary to apply the realistic probability test where the elements of the offense, whether as set forth in a statute or case law, do not match the generic federal crime"); Swaby v. Yates , 847 F.3d 62, 66 (1st Cir. 2017) ("Nothing in Duenas-Alvarez ... indicates that this state law crime may be treated as if it is narrower than it plainly is."); Ramos v. Att'y Gen. United States , 709 F.3d 1066, 1071–72 (11th Cir. 2013) (" Duenas-Alvarez does not require this showing [of actual prosecutions] when the statutory language itself, rather than ‘the application of legal imagination’ to that language, creates the ‘realistic probability’ that a state would apply the statute to conduct beyond the generic definition."). The Court will decline the government's invitation to read a force element into section (iii) that the Pennsylvania legislature left out. It is bound by the categorical approach to examine the elements of the statute underlying defendant's conviction, Descamps , 570 U.S. at 258, 133 S.Ct. 2276, Taylor , 495 U.S. at 602, 110 S.Ct. 2143, as interpreted by any applicable state supreme court decisions. Johnson , 559 U.S. at 138, 130 S.Ct. 1265. Since the government has not pointed to any state supreme court decision holding otherwise, the Court relies on the plain text of the subsection (iii) to find that it reaches nonviolent conduct. See Connecticut Nat. Bank v. Germain , 503 U.S. 249, 253–54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ("[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there."); Jean-Louis v. Att'y Gen. , 582 F.3d 462, 477 n.19 (3d Cir. 2009) (relying on the canon of statutory interpretation in applying the categorial approach in an immigration removal case). There is no reason to resort to the statute's legislative history because the statute is clear. See United States v. Gonzales , 520 U.S. 1, 6, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) ("Given the straightforward statutory command, there is no reason to resort to legislative history."), citing Germain , 503 U.S. at 254, 112 S.Ct. 1146.
The government also cites United States v. Castillo-Rivera , 853 F.3d 218 (5th Cir. 2017), which holds that a defendant must show that a state statute was "actually applied " to reach crimes outside the federal definition. See id. at 222 (emphasis in original). The D.C. Circuit has not adopted an "actually applied" standard, and this Court will not do so either.
To be sure, subsection (iii) is a first-degree felony, 18 Pa. C.S. § 3701(b), but unlike the other first-degree felonies in the robbery statute, which require proof of "serious bodily injury" or the threat of it, § 3701(a)(i), (ii), subsection (iii) on its face does not. It simply has no element requiring defendant to use, attempt, or threaten to use physical force of any kind, only that defendant commit or threaten "any felony of the first or second degree. § 3701(a)(1)(iii) (emphasis added). Brown does not hold otherwise and so is not dispositive. See, c.f., Johnson , 559 U.S. at 138, 130 S.Ct. 1265 (relying on the Florida Supreme Court's interpretation of the element of "actually and intentionally touching" in considering whether a felony conviction for battery under the Florida statute is a "violent felony" under the ACCA).
The Court finds that the use of force is not element necessary to prove a violation of subsection (iii). Accordingly, the Pennsylvania robbery statute does not qualify as a "crime of violence" under section 924(c).
The government does not address subsection (v) of the Pennsylvania robbery statute, and the defense only mentions it in a footnote. See Def.’s Suppl. Mot. at 11 n.7. The Court notes it is the lowest-grade felony in the statute, 18 Pa. Cons. Stat. § 3701(b), and that the Third Circuit has held the provision does not qualify as a "violent felony" under the ACCA's elements clause. Peppers , 899 F.3d at 231, citing Brown , 484 A.2d at 741.
2. Pennsylvania Aggravated Assault, 18 Pa. Cons. Stat. § 2702(a)(1) (2000), is not a crime of violence.
There was an additional crime underlying the gun possession offense, and at the time of the defendant's conviction, the Pennsylvania aggravated assault statute provided that a "person is guilty of aggravated assault" if he "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life." 18 Pa. Cons. Stat. § 2702(a)(1) (2000).
The state supreme court has held that "evidence of the use of force or the threat of force is not an element of the crime of aggravated assault" because neglect or acts of omission are sufficient to prove a violation. Commonwealth v. Thomas , 867 A.2d 594, 597 (Pa. Super. Ct. 2005) (upholding first-degree aggravated assault conviction under section 2702(a)(1) of a mother who starved her child to death); Commonwealth v. Taylor , No. 1641 WDA 2013, 2015 WL 7576457, at *1, *6 (Pa. Super. Ct. Feb. 9, 2015) (upholding section 2702(a)(1) conviction for "criminal neglect" of her twin six-year-old children, which included failing to feed and clothe them); see also United States v. Mayo , 901 F.3d 218, 224 (3d Cir. 2018) ("[A]ggravated assault under Pennsylvania's § 2702(a)(1) does not categorically require the use of physical force against another."). Further, the Supreme Court recently held in Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021), that a criminal offense with a mens rea of recklessness cannot qualify as a "violent felony" under the ACCA. Id. at 1825.
The government argues that Mayo was wrongly decided and that the facts of the state supreme court cases demonstrate that physical force was involved in the terrible neglect the children in the Thomas and Taylor cases suffered. Gov't Opp. at 27–28. And as with the robbery statute, it asks the Court to consider how the aggravated assault provision is applied to find that physical force is an element of the statute. Gov't Opp. at 28 & n.11 (stating that "[t]here simply is no Pennsylvania case supporting a charge of aggravated assault based on an ‘omission to act’ " and noting that the lesser offense of child neglect under the state code could involve omissions). It also cites a number of other circuit court cases which have held that the acts of omission by starving a victim or withholding medicine is an act of physical force, qualifying the statutes under review as crimes of violence. See Gov't Opp. at 28–29, citing United States v. Peeples , 879 F.3d 282, 287 (8th Cir. 2018) ; United States v. Jennings , 860 F.3d 450, 459–60 (7th Cir. 2017) ; United States v. Waters , 823 F.3d 1062, 1066 (7th Cir. 2016).
There is no question that the abuse the children suffered in the Thomas and Taylor matters is horrendous. But the awful facts underlying those cases are not relevant to the legal question before this Court: whether 18 Pa. Cons. Stat. § 2702(a)(1) (2000) "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). And none of the circuit courts cases cited by the government involved what is before this Court: a binding state supreme court ruling that answers the question about the particular statute under review. Specifically addressing section 2702(a)(1), the Pennsylvania Supreme Court has held that "the use of force or the threat of force is not an element of the crime of aggravated assault," Commonwealth v. Thomas , 867 A.2d at 597, and this Court is bound by that decision regardless of what it would decide if the issue was presented to it as a matter of first impression, and whether it would agree with its application in the factual scenarios described by the government or not. Accordingly, the Court finds that section 2702(a)(1) of the Pennsylvania aggravated assault statute does not qualify as a "crime of violence" under section 924(c), and therefore is no longer a "crime of violence" upon which Count 16 is predicated. B. Count 46's Predicate Offense of Attempted Maryland Armed Robbery is Not a Crime of Violence.
The government invites the Court to stay its decision on Count 16 pending the Third Circuit's resolution of United States v. Marc Harris , No. 17-1861. Gov't Opp. at 22. A review of the docket of that appeal shows it was originally filed in April of 2017, and that on January 4, 2022, the Third Circuit certified the following question of law to the Supreme Court of Pennsylvania: "Whether the Pennsylvania First-Degree Aggravated Assault provision, codified at 18 Pa. Cons. Stat. Section: 2702(a)(1), requires some use of physical force, as the Government contends, or, instead, as the Pennsylvania Superior Court said in Commonwealth v. Thomas , 867 A.2d 594, 597 (Pa. Super. Ct. 2005), the statute means that ‘the use of force or threat of force is not an element of the crime.’ " Petition [Dkt. # 248]. Given the amount of time the instant motion has been pending before this Court, the backlog of cases on every court's docket resulting from the pandemic, and the binding Pennsylvania Supreme Court ruling on the state's aggravated assault statute, the Court will decline to await a ruling from the Third Circuit.
The offenses underlying Count 46 are the attempted armed robberies of Tire Town in Beltsville, Maryland and Salon En Vogue in Hyattsville, Maryland. See Indictment at 43; Hr'g Tr. at 93–98. Sometime between August and October of 1997, defendant and others met at defendant's home in the District of Columbia and decided to rob Tire Town. Hr'g Tr. at 93. Armed with guns, they drove to the shop but abandoned their plan because they were concerned the security camera of a nearby ATM machine captured video of their car that could lead police to them. Id. Undeterred, they decided to rob Salon En Vogue instead. Id. at 94. They drove from Tire Town to the salon but, once there, decided against carrying out that robbery because a police car was parked nearby. Id.
Count 46 charged "Use of a Firearm during a Crime of Violence," among other crimes that the government concedes are not crimes of violence, and it identifies Count 1, Racketeering Act Eight, which charged attempted Maryland armed robbery, as a predicate offense. See Indictment at 43; id. at 9–10 (charging attempted robberies in violation of Md. Code § 27-488). Although Count 1 refers to Md. Code § 27-488, id. at 9–10, both Maryland armed robbery and attempted Maryland armed robbery are defined by common law. See Redrick , 841 F.3d at 482–84 (analyzing Maryland common law, which defines simple robbery, and Md. Code § 27-488, which provides a sentencing enhancement for robbery with dangerous or deadly weapon, and concluding that Maryland armed robbery is a violent felony under the ACCA); Young v. State , 303 Md. 298, 311, 493 A.2d 352 (1985) (setting forth what is required to show an attempted crime in Maryland).
The government concedes that the other predicate offenses – conspiracy and attempted D.C. armed robbery – do not qualify as crimes of violence. See Gov't Opp. at 38, citing United States v. Simms , 914 F.3d 229, 234 (4th Cir. 2019) (en banc) (holding that conspiracy does not "invariably require the actual, attempted, or threatened use of physical force."); United States v. Lewis , 907 F.3d 891, 895 (5th Cir. 2018) (same); Brown v. United States , 942 F.3d 1069, 1075 (11th Cir. 2019) (same); In re Sealed Case , 548 F.3d 1085, 1089 (D.C. Cir. 2008) (holding that D.C. robbery does not qualify as a crime of violence under section 4B1.2 of the U.S. Sentencing Guidelines ).
At the time of defendant's conviction, Md. Code § 27-488 provided that "[e]very person convicted of the crime of robbery or attempt to rob with a dangerous or deadly weapon or accessory thereto is guilty of a felony, shall restore to the owner thereof the thing robbed or taken, or shall pay him the full value thereof, and be sentenced to imprisonment for not more than 20 years." Md. Code § 27-488 (1996).
In Young v. State , 303 Md. 298, 493 A.2d 352 (1985), Maryland's highest court held that "[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which constitutes a substantial step toward the commission of that crime whether or not his intention be accomplished." Id. at 311, 493 A.2d 352. The court went on to enumerate seven actions that "as a matter of law" would constitute a "substantial step," including "lying in wait, searching for or following the contemplated victim of the crime;" "enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;" "reconnoitering the place contemplated for the commission of the crime," and "possession of materials to be employed in the commission of the crime." Id. at 311–12, 493 A.2d 352. Given this precedent, the defense argues that while Maryland armed robbery may qualify as a crime of violence under section 924(c)(3)(A), Def.’s Suppl. Mot. at 17, citing Redrick , 841 F.3d at 484, attempted Maryland armed robbery cannot because nonviolent actions can satisfy the "substantial step" element under Maryland law. See Def.’s Suppl. Mot. at 17–18, citing Young , 303 Md. at 311, 493 A.2d 352.
The government argues that under federal law, if a substantive offense is a crime of violence under section 924(c)(3)(A), an attempt to commit that offense is also a crime of violence. Gov't Opp. at 39, citing United States v. Dominguez , 954 F.3d 1251, 1255 (9th Cir. 2020). As the Ninth Circuit held in Dominguez ,
[i]t does not matter that the substantial step – be it donning gloves and a mask before walking into a bank with a gun, or buying legal chemicals with which to make a bomb – is not itself a violent act or even a crime. What matters is that the defendant specifically intended to commit a crime of violence and took a substantial step toward committing it.
The D.C. Circuit has not ruled on this issue, but a number of other circuit courts have adopted this reasoning. See United States v. Walker , 990 F.3d 316, 327–28 (3d Cir. 2021) (holding that attempted Hobbs Act robbery is a crime of violence and rejecting argument that it is possible to attempt murder without using, attempting, or threatening physical force by, for example, drawing up assassination plans and buying a gun); United States v. Ingram , 947 F.3d 1021, 1026 (7th Cir. 2020) (same); United States v. St. Hubert , 909 F.3d 335, 352 (11th Cir. 2018) (same); see also Hill v. United States , 877 F.3d 717, 719 (7th Cir. 2017) (holding that "[w]hen a substantive offense would be a violent felony under § 924(e) and similar statutes, an attempt to commit that offense also is a violent felony" in the finding that prior Illinois conviction for attempted murder was a predicate felony under the ACCA).
The Fourth Circuit took the opposite view in United States v. Taylor , 979 F.3d 203 (4th Cir. 2020), a case that the Supreme Court recently upheld. See United States v. Taylor , ––– U.S. ––––, 142 S. Ct. 2015, 213 L.Ed.2d 349 (2022) (holding that attempted Hobbs Act robbery does not satisfy section 924(c) ’s elements clause). The Fourth Circuit in Taylor noted that to prove attempted Hobbs Act robbery, the government must prove that a defendant specifically intended to commit robbery by means of a threat to use physical force and took a substantial step corroborating that intent, but that the substantial step element need not be violent. Id. at 208, citing United States v. McFadden , 739 F.2d 149, 152 (4th Cir. 1984) (finding the second element satisfied when defendants "discussed their plans," "reconnoitered the banks in question," "assembled [ ] weapons and disguises," and "proceeded to the area of the bank."). Given this, the Fourth Circuit held that attempted Hobbs Act robbery is not a crime of violence under 924(c)’s element's clause: where a defendant "takes a nonviolent substantial step toward threatening to use physical force," he has "not used, attempted to use, or threatened to use physical force" but "merely attempted to threaten to use physical force." Id. The Court notes that most of these circuit cases concern attempted Hobbs Act Robbery, see Dominguez , 954 F.3d at 1255 ; Walker , 990 F.3d at 326 ; Ingram , 947 F.3d at 1026 ; St. Hubert , 909 F.3d. at 352, so they do not squarely address how the analysis applies when the predicate offense is an attempted offense under state law, although the Seventh Circuit adopted this approach in a case that involved attempted Illinois murder. See Hill , 877 F.3d at 718 (holding that attempted Illinois murder is a crime of violence even though it can be carried out without using, attempting, or threatening physical force, such as by providing money and a car key to a hit man).
Here, the predicate offense at issue is attempted Maryland armed robbery in violation of Md. Code § 27-488. Noting that the elements of an offense "are the constituent parts of a crime's legal definition – the things the prosecution must prove to sustain a conviction," Mathis , 579 U.S. at 504, 136 S.Ct. 2243 (internal quotation marks omitted), a prosecutor must show (1) intent to commit an armed robbery and (2) a substantial step to prove criminal attempt to prove attempted Maryland armed robbery. Young , 303 Md. at 311, 493 A.2d 352. According to Maryland's highest court, the second element can be satisfied without using, attempting, or threatening any physical force. Id. at 312, 493 A.2d 352 ; see Dickerson v. State , No. 2195, 2019 WL 325242, at *3 (Md. Ct. Spec. App. Jan. 25, 2019) (citing Young and holding that the defendant took a substantial step toward committing an armed robbery when he and another individual "went into the Waterside apartment complex, both armed and with hoodies pulled over their heads, after having spent a substantial amount of time attempting to track down the items that had been stolen from him and the people he believed were responsible"). So, under Maryland law, this offense can be proven without the use, attempted use, or threatened use of physical force.
But even applying federal law, the Court finds the Fourth Circuit's reasoning in Taylor , 979 F.3d 203, more applicable to this case than the Dominguez line of cases. As the Fourth Circuit explained,
attempted Hobbs Act robbery does not invariably require the use, attempted use, or threatened use of physical force. The Government may obtain a conviction for attempted Hobbs Act robbery by proving that: (1) the defendant specifically intended to commit robbery by means of a threat to use physical force; and (2) the defendant took a substantial step corroborating that intent. The substantial step need not be violent. See, e.g. , United States v. McFadden , 739 F.2d 149, 152 (4th Cir. 1984) (concluding that defendants took a substantial step toward bank robbery where they "discussed their plans," "reconnoitered the banks in question," "assembled [ ] weapons and disguises," and "proceeded to the area of the bank"). Where a defendant takes a nonviolent substantial step toward threatening to use physical force – conduct that undoubtedly satisfies the elements of attempted Hobbs Act robbery – the defendant has not used, attempted to use, or threatened to use physical force. Rather, the defendant has merely attempted to threaten to use physical force. The plain text of § 924(c)(3)(A) does not cover such conduct.
Taylor , 979 F.3d at 208 ; see United States v. St. Hubert , 918 F.3d 1174, 1212 (11th Cir. 2019) (J. Pryor, J., dissenting from denial of rehearing en banc) ("Intending to commit each element of a crime involving the use of force simply is not the same as attempting to commit each element of that crime.") (emphasis in original).
The government argues that section 924(c)(3)(A) defines a crime of violence as one that "has as an element the ... attempted use ... of physical force" and so "[b]y its very terms, the elements clause includes attempt offenses." Gov't Opp. at 16, quoting 18 U.S.C. § 924(c)(3)(A). But attempted armed robbery under Maryland law does not have the attempted use of physical force as an element; it only requires a substantial step, which may be nonviolent. See Young , 303 Md. at 311–12, 493 A.2d 352.
The Court therefore holds that attempted Maryland armed robbery is not a crime of violence for purposes of section 924(c), and there is no longer a "crime of violence" upon which Count 46 is predicated.
C. Counts 7 and 25's Predicate Offense of Hobbs Act Robbery is a Crime of Violence.
Defendant's section 924(c) convictions for Counts 7 and 25 are based on Hobbs Act Robbery and conspiracy charges arising from the June 4, 1996 armed robbery of Pizza Italia in Takoma Park, Maryland and the June 26, 1997 armed robbery of Rollingcrest-Chillum Community Center in Hyattsville, Maryland. Indictment at 12–16, 27–30.
On June 4, 1996, defendant and co-conspirators meet in the District of Columbia and planned to rob the Pizza Italia in Hyattsville. Indictment at 12–13. They drove from the District of Columbia, stole a car, and armed with handguns and wearing a mask and gloves, entered the establishment and robbed its employees at gunpoint. Indictment at 13–14. Count 7 charged use of a firearm during a crime of violence and referred to Counts 5 and 6, which charged Hobbs Act Robbery and Conspiracy to Commit Hobbs Act Robbery based on that offense. See Indictment at 15.
On June 26, 1997, defendant and a co-conspirator planned to rob the community center, and armed with two handguns, defendant robbed its employees and stole approximately $5,000. Indictment at 27–28. Count 25 charged use of a firearm during a crime of violence and referred to Counts 23 and 24, which charged Hobbs Act Robbery and Conspiracy to Commit Hobbs Act Robbery based on those events. Indictment at 29–30.
The government concedes that conspiracy to commit Hobbs Act Robbery is no longer a crime of violence following Johnson and Davis , Gov't Opp. at 14, citing United States v. Lara , 970 F.3d 68, 74 (1st Cir. 2020), so the Court will only address whether Hobbs Act Robbery is a crime of violence.
The D.C. Circuit has not ruled on whether Hobbs Act robbery is a crime of violence for purposes of section 924(c), but courts in this district, including this Court, and every circuit that has decided the issue have ruled that it is. See United States v. Thomas , No. 17-194, 2019 WL 1590101 at *1 (D.D.C. 2019) (not reported) ("Agreeing with every Court of Appeals to have considered that argument, the Court concludes that Hobbs Act robbery is a crime of violence within the meaning of 18 U.S.C. § 924(c) ...."); United States v. Washington , No. 18-13, 2020 WL 6262095 at *1, (D.D.C. Oct. 23, 2020) ("This Court agrees with every Court of Appeals to have considered the same argument and concludes that Hobbs Act robbery remains a crime of violence."); United States v. Carter , 422 F. Supp. 3d 299, 306–307 (D.D.C. 2019) (collecting circuit court cases); United States v. McCallister , No. CR 15-0171, 2016 WL 3072237, at *1 (D.D.C. May 31, 2016). Applying the categorical approach, the Court holds that a Hobbs Act robbery is a crime of violence as defined by section 924(c). The Hobbs Act criminalizes "the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future , to his person or property." 18 U.S.C. § 1951(b)(1) (emphasis added). The Court finds that it qualifies as a crime of violence under the elements clause of section 924(c)(3) and it will deny defendant's motion as to Counts 7 and 25.
Because one of the predicate offenses underlying Counts 7 and 25 qualifies as a crime of violence, defendant is not entitled to relief on these counts. See In re: Navarro , 931 F.3d 1298, 1302–03 (11th Cir. 2019) (holding that a defendant is not entitled to relief where section 924(c) conviction was predicated on two offenses but challenged only one predicate offense: "his conviction was independently supported by the charged drug-trafficking crimes"); United States v. Crawley , 2 F.4th 257, 263 (4th Cir. 2021), cert. denied, ––– U.S. ––––, 142 S. Ct. 819, 211 L.Ed.2d 508 (2022) (holding that a conviction based on a plea to a section 924(c) offense predicated on one valid and one invalid predicate offense remains sound following Johnson and its progeny).
D. Count 12's predicate offenses of Maryland attempted murder and assault with a dangerous weapon both qualify as crimes of violence.
Defendant's section 924(c) conviction on Count 12 related to the robbery and assault of Bruce Howard and Christy Bennett. Indictment at 17–19. On August 12, 1996, defendant approached Howard and Bennett, who were sitting in Howard's car in Avondale Park in Maryland, pulled out a pistol, and told them he wanted to rob them. Hr'g Tr. at 53. Howard, who was an off-duty police officer, struggled with defendant over the gun, and defendant shot Howard in the back before fleeing with $20 he had taken from Bennett. Hr'g Tr. at 53–54. Count 12 referred to Count 11, which charged defendant with a Violent Crime in Aid of Racketeering ("VICAR"), in violation of 18 U.S.C. §§ 2, 1959(a)(3) and (5). See Indictment at 18–19. And Count 11 was predicated on attempt to murder in violation of Md. Code § 27-12A-1 and on assault with a dangerous weapon in violation of Md. Code § 27-411A(b). See Indictment at 17–18.
At the time of defendant's conviction, the first-degree assault statute was codified at Md. Code § 27-12A-1. It is now codified at Md. Code § 3-202.
At the time of defendant's conviction, the attempted murder statute was codified at Md. Code § 411A(b). It is now codified at Md. Code § 2-205.
Maryland attempted murder has been found to be a crime of violence. United States v. Battle , 927 F.3d 160, 165 (4th Cir. 2019) (holding that Maryland assault with intent to murder qualifies as violent felony for purposes of ACCA because the offense is defined under state law "as an assault upon the victim coupled with an intent to murder, which can be shown by proof that the crime would have been murder if the victim had died"), quoting Hardy v. State , 301 Md. 124, 482 A.2d 474, 477 (1984) ; Abernathy v. State , 109 Md. App. 364, 675 A.2d 115, 116 (1996) (holding that assault with intent to murder is a specific intent crime and the only mens rea that would support the conviction is the specific intent to bring about the death of the assault victim).
Maryland first degree assault has also been found to be crime of violence after the Johnson and Davis rulings. See United States v. Haight , 892 F.3d 1271, 1281 (D.C. Cir. 2018) (Maryland offense of first degree assault is a violent felony for purposes of the ACCA), abrogated on other grounds by Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021) (holding that the element under Maryland law that defendant use a firearm or intend to cause serious physical injury requires a defendant to use, attempt to use, or threaten to use violent force against another person); United States v. Redd , 372 F. App'x 413, 415 (4th Cir. 2010) ("Because the elements of first-degree assault under Maryland law encompass the use or attempted use of physical force," the defendant's two convictions for first-degree assault "categorically qualify as ACCA predicates.").
The Court finds that the predicate offenses underlying Count 12 qualify as crimes of violence under the elements clause of section 924(c)(3) and will deny defendant's motion as to that count.
E. Counts 36, 39, and 42's Predicate Offenses of D.C. and Federal Murder Qualify as Crimes of Violence.
Defendant's section 924(c) convictions under Counts 36, 39, and 42 relate to the July 6, 1997, murders of Emory Evans, Aaron Goodrich, and Mary Mahoney at a Starbucks coffee shop in the District of Columbia. Indictment at 36–40. All three counts charge murder in the course of using a firearm during a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c) and 924(j). These 924 counts, 36, 39, and 42, each identify
Section 924(j) provides that "[a] person who, in the course of a violation of subsection (c), causes the death of another person through the use of a firearm, shall ... be punished by death or by imprisonment for any term of years or for life." 18 U.S.C. § 924(j)(1).
• federal murder, 18 U.S.C. § 1111, and
• Count 1, Racketeering Act Seven, paragraphs (b), (c), (d) and (e), which refer to three counts of D.C. murder and aiding and abetting in violation of D.C. Code §§ 22-105, 2401 and 3202, and one count of armed robbery and aiding and abetting in violation of D.C. Code §§ 22-105, 2901 and 3202
as the predicate violent offenses. See Indictment at 36–40.
D.C. Code § 22-105 provides that aiders and abettors are charged as principals and is now is now § 22-1805. D.C. Code § 22-2401 is the former D.C. murder statute and is now section 22-2101. D.C. Code § 22-3202 provides for the additional penalty for crimes committed while armed and is now section 22-4502.
Federal murder is:
the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
18 U.S.C. § 1111(a). The D.C. Circuit has not addressed whether federal murder is a crime of violence, but other circuit courts have held that it is: the federal murder statute, "[a]t a minimum ... has as an element the killing of another human being with malice aforethought." Thompson v. United States , 924 F.3d 1153, 1158 (11th Cir. 2019) (holding that federal second-degree murder is a crime of violence). "Because § 1111(a), by its plain terms, criminalizes the actual killing of another person, the level of force used must necessarily be capable of causing physical pain or injury." Id. ; see also In re Irby , 858 F.3d 231, 237 (4th Cir. 2017) (federal murder is a crime of violence under § 924(c)(3)(A) because "[c]ommon sense dictates that murder is categorically a crime of violence under the force clause"); United States v. Russell , No. 05-CR-401, 2018 WL 3213274, at *3 (E.D.N.Y. June 29, 2018) (notwithstanding Johnson and Dimaya , murder in aid of racketeering "qualifies as a ‘crime of violence’ under the elements clause of § 924(c)(3), not its residual clause"); United States v. Sarracino , 724 Fed. Appx. 673, 675 (10th Cir. 2018) (affirming decision that federal "second-degree murder conviction qualified as a crime of violence under the elements clause" of section 4B1.2(a)(1) of the U.S. Sentencing Guidelines, which uses a similar definition). The Court agrees. The "killing of a human being with malice aforethought," 18 U.S.C. § 1111(a), involves sufficient force against a person to result in the person's death, qualifying as a crime of violence under section 924(c)(3)(A).
The Court need not address the other charges since federal murder is a crime of violence.
IV. The Court Will Amend Defendant's Judgment as to Counts 16 and 46.
Given the ruling that there are no longer any "crimes of violence" underlying Counts 16 and 46, the Court must next determine what relief defendant is entitled to receive. Courts granting relief under section 2255 "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate," 28 U.S.C. § 2255(b), but are "accord[ed] discretion in choosing from among four remedies." United States v. Palmer , 854 F.3d 39, 49 (D.C. Cir. 2017), citing United States v. Haynes , 764 F.3d 1304, 1310 (11th Cir. 2014) ; Ajan v. United States , 731 F.3d 629, 633 (6th Cir. 2013) ; United States v. Savoca , 596 F.3d 154, 161 (2d Cir. 2010) ; United States v. Jones , 114 F.3d 896, 897 (9th Cir. 1997).
Defendant asks the Court to set aside the invalid convictions and resentence him on the remaining convictions with a sentencing hearing. Def.’s Mot. at 14; Def.’s Suppl. Mot. at 25–28. The government asks the Court to correct the sentence as appropriate and states that it need not hold a sentencing hearing. Gov't Opp. at 42. Noting the dictionary definitions of "correction" and "resentencing," and recognizing some overlap between the two remedies, the D.C. Circuit has explained that "corrections are limited to a specific type of action taken with respect to the original judgment, while resentencings could encompass a broader array of procedures." Palmer , 854 F.3d at 47–49 (upholding the correction of a sentence given a change in the law, explaining "the district court did no more than mechanically vacate the unlawful convictions (and accompanying sentences) for the five counts," leaving the "original sentence in place, unaltered"); see also United States v. Augustin , 16 F.4th 227, 232 (6th Cir. 2021), cert. denied , ––– U.S. ––––, 142 S. Ct. 1458, 212 L.Ed.2d 547 (2022) (explaining that "resentencing is open-ended and discretionary and akin to beginning the sentencing process anew," "often entails a reevaluation of the appropriateness of the defendant's original sentence" and requires a hearing) (quotation marks and citations omitted). A sentence correction, in contrast, is "more limited remedy" for which a hearing is not required. Augustin , 16 F.4th at 232 ; see also United States v. Flack , 941 F.3d 238, 241 (6th Cir. 2019) (stating that a sentence correction is "arithmetical, technical, or mechanical"). "A district court corrects a sentence when, for example, it simply vacates ‘unlawful convictions (and accompanying sentences)’ without choosing to reevaluate ‘the appropriateness of the defendant's original sentence.’ " Augustin , 16 F.4th at 232, quoting Palmer , 854 F.3d at 48.
"A correction is ‘the act of an instance of making right what is wrong’ Black's Law Dictionary (10th ed. 2014), or ‘remedying or removing error or defect,’ Webster's Third New International Dictionary, Unabridged (2017). A ‘resentencing’ in contrast, is ‘[t]he act or an instance of imposing a new or revised criminal sentence.’ Black's Law Dictionary (10th ed. 2014)." Palmer , 854 F.3d at 47.
The Judgment in this case lists the counts to which defendant pled guilty and set forth the sentence for each count:
The Court accepts the Rule 11(e)(1)(C) plea agreement and the agreed upon sentence of LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF RELEASE OR PAROLE. The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF RELEASE OR PAROLE on each of Counts 1, 2, 36, 39 and 42; ONE HUNDRED TWENTY-ONE (121) MONTHS on Count 11; FIFTY-ONE (51) MONTHS on each of Counts 5, 6, 9, 14, 15, 22, 23, 24, 27, 28, 29, 44, 45 and 48; SIXTY (60) MONTHS on Count 17; SIXTY-THREE (63) MONTHS on each of Counts 18 and 19; SEVEN (7) YEARS on Count 7; TWENTY-FIVE (25) YEARS on each of Counts 12, 16, 25 and 46. The terms of imprisonment of Counts 7, 12, 16, 25 and 46 shall be served consecutively to each other and to all other terms of imprisonment.
With respect to the violations of the District of Columbia Criminal Code, the terms of imprisonment are as follows: Not less than THIRTY (30) YEARS to not more than LIFE IMPRISONMENT on each of Counts 3, 4, 34, 35, 37, 38, 40 and 41; Not less than FORTY (40) MONTHS to not more than ONE HUNDRED TWENTY (120) MONTHS as to each of Counts 8, 13, 21, 26, 43, and 47; Not less than FIFTEEN (15) YEARS to not more than LIFE IMPRISONMENT on each of Counts 10, 30, 31, 32, and 33.
Unless otherwise ordered, all terms of imprisonment shall be served concurrently.
Judgment at 1–3 (capitalizations in original, bolding omitted). So, on each of the two invalid counts, 16 and 46, defendant was sentenced to twenty-five years, to be served consecutively. Id. Further, he was sentenced to life imprisonment without the possibility of release or parole on five other counts: Counts 1 and 2, which did not involve section 924(c) and were not challenged by defendant, and Counts 36, 39, and 42, which involved section 924(c) and were challenged but held to be valid after Davis .
Defendant argues that the Court should vacate his entire sentence and hold a hearing to resentence him on all the counts because his sentences for the section 924(c) convictions were imposed to be served consecutively, adding 107 years on top of his life sentences – a result of "stacking" sentences, a practice which has been eliminated by the First Step Act. Def.’s Suppl. Mot. at 26, citing P.L. 115-391, 132 Stat. 5194, at § 603 (Dec. 21, 2018). But this is not the case with respect to the three 924(c) counts that remain untouched: Counts 36, 39, and 42. And the sentencing judge imposed separate sentences for separate counts, so even though Counts 16 and 46 are now invalid, the sentences for the other forty-five counts remain intact, including two life sentences imposed for two unchallenged counts. In other words, stacking had no practical effect on this defendant's sentence.
Defendant also argues that the "sentencing package doctrine" instructs that when a court vacates part of a sentence but not others, it "has the authority to unbundle the entire sentence and begin the sentencing process anew." Def.’s Suppl. Mot. at 26–27, citing United States v. Townsend , 178 F.3d 558, 567 (D.C. Cir. 1999) (holding that "when a defendant is found guilty on a multi-count indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan"); United States v. Ruiz-Alvarez , 211 F.3d 1181, 1184 (9th Cir. 2000). The record is clear that the sentence in this case was based on "an overall plan" – that defendant would serve a sentence of life imprisonment without the possibility of release or parole. See Judgment at 3; Plea Agreement at 1. This plan was not imposed unilaterally by the sentencing judge but as agreed by the parties under Rule 11(e)(1)(C), see Judgment at 3, and with defendant's express agreement. See Plea Agreement at 1.
THE COURT: Do you understand that this agreement is pursuant to Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure that you would be sentenced upon your plea of guilty, and I am reading number 2 in the plea agreement on page 1, to a term of life imprisonment without the possibility of release, without the possibility of parole, without the possibility of probation, you would forever be incarcerated for the rest of your life?
THE DEFENDANT: It's understood, Your Honor.
Hr'g Tr. at 19–20.
THE COURT: And do you understand that at bottom the overall arching sentence will be life imprisonment without possibility of release, or parole, or probation?
THE DEFENDANT: It's understood, Your Honor.
Hr'g Tr. at 26 (emphasis added). The sentencing judge accepted the parties’ agreed plea after a lengthy hearing. Hr'g Tr. at 238 ("The Court has considered this very seriously and does accept the Rule 11(e)(1)(c) plea agreement and the agreed upon sentence of life imprisonment without the possibility of release or parole as the appropriate resolution of this case.").
But the fact that the sentence was imposed as part of an overall plan does not require the Court to resentence defendant now because the life sentences do not depend in any way on the sentences for the two invalid convictions. See Palmer , 854 F.3d at 49 ("[N]ot every judgment involving multiple convictions presents a sentencing package in which vacating the sentence on one count unravels the remaining sentences."); United States v. Smith , 467 F.3d 785, 790 (D.C. Cir. 2006) (ruling that the sentencing package doctrine affords no basis to resentence other counts in case in which a "life sentence on the grouped counts and the 30-year term for the § 924(c) violation" were not interdependent so that vacating the 924(c) sentence did not unravel the life sentence).
Finally, defendant contends that a full resentencing is required as a practical matter even where relief is granted on only some claims because the Court is required to "vacate and set aside the judgment" and no judgment would exist after that. Def.’s Suppl. Mot. at 28, quoting 28 U.S.C. § 2255(b). But courts may amend a judgment and vacate only the convictions and accompanying sentences that are unlawful and leave the original sentence for other offenses intact when in granting section 2255 motions in part. See Palmer , 854 F.3d at 42, 48.
The Court finds that it is appropriate to vacate the constitutionally invalid sentences on Counts 16 and 46 alone. The Court will amend the Judgment to reflect those changes, but the remaining terms of the Judgment will remain undisturbed. While the defendant is correct that the Court has the authority and the discretion to unravel the entire sentence and resentence him anew, it concludes in its discretion that a resentencing is not necessary or appropriate in light of the rulings set forth above, and that granting defendant's motion to apply Davis and vacate the two affected sentences provides all of the relief to which he is entitled.
An amended judgment consistent with this ruling will be filed on the docket.
SO ORDERED.