Umaña v. United States, 3:16cv57–RJC

• Court: United States District Courts. 4th Circuit. Western District of North Carolina
• Writing for the Court: Robert J. Conrad, Jr., United States District Judge
• Citation: 229 F.Supp.3d 388
• Parties: Alejandro Enrique Ramirez UMAÑA, Petitioner, v. UNITED STATES of America, Respondent.
• Docket Number: 3:16cv57–RJC,3:08cr134–RJC–2
• Decision Date: 25 January 2017

229 F.Supp.3d 388

Alejandro Enrique Ramirez UMAÑA, Petitioner,
v.
UNITED STATES of America, Respondent.

3:16cv57–RJC
3:08cr134–RJC–2

United States District Court, W.D. North Carolina, Charlotte Division .

Signed January 25, 2017

229 F.Supp.3d 390

Kelly Diane Miller, Federal Public Defender, Middle District of Pennsylvania, Harrisburg, PA, Ken Justin Rose, Ken Rose, Durham, NC, Zandra Luz Lopez, Federal Defenders of San Diego Inc., San Diego, CA, for Petitioner.

Anthony Joseph Enright, U.S. Attorney's Office, Charlotte, NC, for Respondent.

ORDER

Robert J. Conrad, Jr., United States District Judge

THIS MATTER is before the Court upon Petitioner Alejandro Enrique Ramirez Umaña's unopposed motion to place the above-captioned action in abeyance. (Doc. No. 45).

I. RELEVANT PROCEDURAL HISTORY

On April 19, 2010, a jury convicted Umaña of four capital offenses: two counts of murder in aid of racketeering, 18 U.S.C. § 1959(a)(1), and two counts of murder while using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), (j)(1). See United States v. Umaña , 750 F.3d 320, 329 (4th Cir. 2014), cert. denied , ––– U.S. ––––, 135 S.Ct. 2856, 192 L.Ed.2d 894 (2015). The same jury found that Umaña was death-eligible on all four capital counts, see id. and it returned verdicts imposing the death penalty for all four counts, id. at 329–30. The Court of Appeals for the Fourth Circuit affirmed Umaña's convictions and sentences. Id. at 360.

On June 22, 2016, Umaña filed a Motion to Vacate, Set Aside or Correct his convictions and sentences pursuant to 28 U.S.C. § 2255. (Doc. No. 22). In Claim XXII of his Motion to Vacate, Umaña argues that his convictions and death sentences under § 924(c) & (j)(1) are unconstitutional in light of the Supreme Court's holding in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015), made retroactive on collateral review by Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). (Mot. to Vacate 323–44, Doc. No. 22).

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On December 13, 2016, Umaña filed the instant Motion to hold this action in abeyance pending decisions by the United States Supreme Court in Lynch v. Dimaya , No. 15–1498, the Fourth Circuit Court of Appeals in United States v. Simms , No. 15–4640, and the Fourth Circuit Court of Appeals in United States v. Ali , No. 15–4433, whichever is issued latest. (Doc. No. 45). Umaña asserts that the Government does not oppose this Motion. (Mot. to Stay 4 n.1, Doc. No. 45).

II. DISCUSSION

In Johnson , the Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), is unconstitutionally vague. 135 S.Ct. at 2558. Under the ACCA, a defendant faces an enhanced sentence if he has three qualifying prior convictions for either a "violent felony" or a "serious drug offense," "committed on occasions different from one another." § 924(e)(1). The ACCA defines a "violent felony" as any crime punishable by imprisonment for a term exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

§ 924(e)(2)(B)(i)(ii) (emphasis added). The italicized closing words of § 924(e)(2)(B)(ii) constitute the ACCA's residual clause. See Johnson , 135 S.Ct. at 2556. Thus, a defendant who was sentenced to a mandatory minimum term based on a prior conviction that satisfies only the residual clause of the "violent felony" definition of the ACCA is entitled to relief from his sentence.

Petitioner was not convicted under § 924(e). He was convicted under § 924(c). To sustain a conviction under 18 U.S.C. § 924(c), the government must prove that the defendant (1) discharged or brandished a firearm and (2) did so during and in furtherance of a crime of violence. Section 924(c)(3) defines a crime of violence as "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." Id. As with the ACCA, the first definition is referred to as the "force clause" and the second as the "residual clause."

The crimes of violence alleged in Umaña's § 924(c) & (j)(1) indictments were conspiracy to participate in a racketeering enterprise in violation of 18 U.S.C. § 1962(d), and murder in aid of racketeering in violation of the Violent Crimes in Aid of Racketeering ("VICAR") Act, 18 U.S.C. § 1959. See Third Superseding Indict. at Counts 23 and 25, United States v. Umaña , 3:08cr134–RJC–2 (W.D.N.C. filed July 29, 2009), (Doc. No. 623). Umaña contends that neither of those offenses is a "crime of violence" as that term is defined under the force clause of § 924(c). He contends further that the residual clause of § 924(c) is materially indistinguishable from the residual clause of the ACCA and, therefore, is unconstitutionally vague under Johnson . Consequently, Umaña argues, his § 924(c) & (j)(1) convictions and death sentences must be vacated.

On September 29, 2016, the Supreme Court granted certiorari in Lynch v. Dimaya , to address "[w]hether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an alien's removal from the United

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States, is unconstitutionally vague." See Pet'r's Br. at *1, Lynch v. Dimaya , 2016 WL 6768940 (U.S. filed Nov. 14, 2016) (No. 15–1498). The residual clause of § 16(b) contains a "materially identical definition" as § 924(c)'s residual clause. Id. at *33. In Simms and Ali , cases before the Fourth Circuit, the appellants contend that, under Johnson , the residual clause of § 924(c)'s definition of "crime of violence" is unconstitutionally vague. (Mot. to Stay 4–5.) Asserting that his Johnson claim is potentially dispositive of his entire § 2255 Motion, Umaña moves to hold this action in abeyance pending decisions in the aforementioned cases. (Mot. to Stay 5.) Because the Court concludes that a VICAR murder is a crime of violence under § 924(c)'s force clause, § 924(c)(3)(A), Umaña's motion to hold this action in abeyance shall be denied.

To determine whether an offense is a crime of violence under the force clause, the Court begins with the "categorical approach" established in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to see whether the predicate offense necessarily had as an element "the use, attempted use, or threatened use of physical force against the person or property of another," § 924(c)(3)(A). See United States v. Castleman , –––U.S. ––––, 134 S.Ct. 1405, 1413, 188 L.Ed.2d 426 (2014). This approach requires that courts "look only to the statutory definitions—i.e., the elements—of a defendant's [offense] and not to the particular facts underlying [the offense]." Taylor , 495 U.S. at 600, 110 S.Ct. 2143.

A VICAR conviction requires proof of five elements: (1) the organization is a Racketeer Influenced and Corrupt Organizations Act ("RICO") enterprise; (2) the enterprise was engaged in racketeering activity as defined in RICO; (3) the defendant had a position in that enterprise; (4) the defendant committed the alleged crime of violence in violation of federal or state law; and (5) the defendant's general purpose in doing so was to maintain or increase position in the enterprise. See § 1959 ; United States v. Fiel , 35 F.3d 997, 1003 (4th Cir. 1994) (citation omitted). The fourth element is the key conduct element in determining if the VICAR offense has as an element the use, attempted use, or threatened use of physical force.

In Umaña's case, the key conduct element is "murder," which is not defined in § 1959(a). Umaña's indictment charges that the VICAR murders were committed in violation of N.C. Gen. Stat. § 14–17, North Carolina's murder statute. See Third Superseding Indict. at Counts 22 and 24, 3:08cr134–RJC–2, (Doc. No. 623). In such a situation, the Court must "compare the elements of the statute forming the basis of the defendant's [charge or] conviction with the elements of the "generic" crime—i.e., the offense as commonly understood." Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). If the generic crime is a "crime of violence," as it is defined under § 924(c), the statute of conviction also will qualify as a "crime of violence," if the statute's elements are substantially the same or narrower than those in the generic crime. See id.

Murder, at common law, is "the unlawful killing of a human being by a person with ‘malice aforethought.’ " Schad v. Arizona , 501 U.S. 624, 640, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). In United States v. Marrero , the Third Circuit Court of Appeals reviewed the Model Penal Code, Black's Law Dictionary, and state laws, and adopted the following contemporary definition of...