Edmond v. United States
| Decision Date | 22 August 2022 |
| Docket Number | 20-1929 |
| Parties | BERNARD THOMAS EDMOND, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
BERNARD THOMAS EDMOND, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee.
No. 20-1929
United States Court of Appeals, Sixth Circuit
August 22, 2022
NOT RECOMMENDED FOR PUBLICATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
Before: GIBBONS, WHITE, and NALBANDIAN, Circuit Judges.
OPINION
HELENE N. WHITE, CIRCUIT JUDGE
Petitioner-Appellant Bernard Edmond appeals the denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The district court granted a certificate of appealability on the issue whether Edmond's carjacking offenses, presented to the jury under a coconspirator theory of liability, constitute "crimes of violence" under 18 U.S.C. § 924(c)(3)(A). The government filed a motion to vacate the certificate of appealability as improvidently granted. Because Edmond's carjacking offenses are crimes of violence under § 924(c)(3)(A), we AFFIRM the denial of Edmond's § 2255 motion, and DENY AS MOOT the government's motion to vacate the certificate of appealability.
I.
From 2010 to 2011, Edmond's associates engaged in a carjacking scheme to obtain luxury vehicles. United States v. Edmond, 815 F.3d 1032, 1038 (6th Cir. 2016), vacated on other grounds, 137 S.Ct. 1577 (2017). Usually wielding guns, they threatened valet employees and car owners,
took the keys to the luxury vehicles, and drove the vehicles away. Id. Intermediaries then delivered the cars to Edmond, who altered the vehicle identification numbers, paid others to falsify title documents, and sold or traded the vehicles. Id. at 1038, 1040. There was evidence that, although Edmond neither ordered nor took part in the carjackings, he knew that some of the vehicles were obtained through violent means. Id. at 1041. Testimony also showed that Edmond sought, and paid more for, vehicles with keys. Id. at 1040.
A federal grand jury indicted Edmond and others on, as relevant here, one count of conspiracy to violate federal law under 18 U.S.C. § 371; three counts of carjacking and causing carjacking under 18 U.S.C. §§ 2119(1) &2; one count of attempted carjacking and causing attempted carjacking under 18 U.S.C. §§ 2119(1) &2;[1] and four counts of using and carrying a firearm during and in relation to a crime of violence[2] under 18 U.S.C. §§ 924(c) &2.[3]
The case went to trial. The government did not suggest that Edmond had committed the carjackings directly; rather, its theory was that, with knowledge of the carjackings, Edmond sought and acquired the vehicles, altered their identifying information, and sold or traded them.
The district court instructed the jury that it could convict Edmond of the carjacking and § 924(c) charges under a coconspirator, or Pinkerton,[4] theory of liability-that is, under the rule that "all members of a conspiracy are responsible for acts committed by other members, so long as those acts are committed to help advance the conspiracy[,] occurred after a defendant joined the conspiracy, and are [within the] reasonably foreseeable scope of the agreement." R. 181, PID 3318. The district court also provided an aiding-and-abetting instruction.
The jury convicted Edmond on all the relevant charges except Count 13-using and carrying a firearm during and in relation to a crime of violence (attempted carjacking) on March 12, 2011. Edmond was sentenced to a total of 900 months, or 75 years. This court affirmed Edmond's conviction, holding that there was sufficient evidence to support Edmond's carjacking and § 924(c) convictions under a Pinkerton theory of liability. See Edmond, 815 F.3d at 1040-41. Edmond argued on direct appeal that "the jury instructions offered two paths to conviction: Pinkerton co-conspirator liability or aiding and abetting liability," and that the district court "did not correctly state the advance-knowledge requirement for aiding and abetting." Id. at 1041. We reasoned that "[a]ny such mistake would not alter the conviction" because "[g]iven the abundant evidence that would permit the jury to convict on the Pinkerton co-conspirator theory, any error in the aiding and abetting instructions did not prejudice him and thus did not affect his substantial rights" under plain-error review. Id. We added that "several circuits have addressed this
situation-where the judge gave a correct Pinkerton instruction and a faulty aiding and abetting instruction-and each one upheld the convictions so long as the Pinkerton theory supported them." Id. (collecting cases).
The Supreme Court vacated the district court's judgment and remanded the case for further consideration in light of Dean v. United States, 137 S.Ct. 1170, 1176-77 (2017), which held that trial courts can consider the length of statutorily mandated sentences for § 924(c) convictions when administering sentences for the underlying predicate offenses. Edmond v. United States, 137 S.Ct. 1577 (2017). On remand, the district court resentenced Edmond to one day on eleven of his convictions and a total of 660 months, or 55 years, on his three § 924(c) convictions.
Edmond filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, arguing that the "residual clause" of § 924(c)-which defines a "crime of violence" as 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," 18 U.S.C. § 924(c)(3)(B)-is unconstitutionally vague, and that his trial counsel was ineffective. After the Supreme Court decided United States v. Davis, 139 S.Ct. 2319 (2019), holding that § 924(c)'s residual clause is, indeed, unconstitutionally vague, id. at 2336, Edmond's appointed counsel filed a supplemental brief, arguing that "the convictions for the various offenses for which [Edmond] was convicted under a conspiracy theory" do not constitute crimes of violence under § 924(c), R. 360, PID 4980.
The district court denied Edmond's § 2255 motion, rejecting Edmond's arguments that carjacking is not a crime of violence; that Edmond's Pinkerton-based carjacking convictions do not constitute crimes of violence under § 924(c) after Davis; and that his counsel was ineffective.
Edmond appealed the district court's denial of his § 2255 motion. He then filed a motion for reconsideration and a request for a certificate of appealability. The district court denied Edmond's motion for reconsideration, but granted his request for a certificate of appealability "only as to the issue of whether [Edmond's] carjacking convictions, charged as substantive offenses but argued, supported and instructed under a coconspirator theory of liability, qualify as crimes of violence under § 924(c)(3)(A)." R. 412, PID 5364. The district court "f[ound] that reasonable jurists could debate whether the carjacking charges [Edmond] was convicted of under a coconspirator theory of liability (Pinkerton conspiracy) qualify as substantive crimes of violence under the elements clause of 18 U.S.C. § 924(c)(3)(A)." Id.
Edmond requested an expanded certificate of appealability from this court on his ineffective-assistance-of-counsel claim, but we denied his request, leaving only the issue certified by the district court.
The government moved to vacate the certificate of appealability as improvidently granted. We deferred ruling on the motion to consider it with the parties' briefs.
II.
"In reviewing the denial of a 28 U.S.C. § 2255 motion, we apply a de novo standard of review to the legal issues and uphold the factual findings of the district court unless they are clearly erroneous." Greer v. United States, 938 F.3d 766, 770 (6th Cir. 2019) (quoting Hamblen v. United States, 591 F.3d 471, 473 (6th Cir. 2009)). We review de novo whether an offense is a "crime of violence" under § 924(c). United States v. Woods, 14 F.4th 544, 551 (6th Cir. 2021).
A.
18 U.S.C. § 924(c) states, in relevant part:
(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in
relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime [be sentenced to certain penalties depending on the circumstances]....
(3) For purposes of this subsection the term "crime of violence" means 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.
Courts refer to § 924(c)(3)(A) as the "elements clause," and § 924(c)(3)(B) as the "residual clause." See Davis, 139 S.Ct. at 2324.
In Davis, the Supreme Court held that § 924(c)'s residual clause is unconstitutionally vague. Id. at 2336. "After Davis, a predicate offense qualifies as a crime of violence only if use of force is an element of the offense, and this excludes conspiracy charges." Woods, 14 F.4th at 552; see also Portis v. United States, 33 F.4th 331, 334 (6th Cir. 2022) ("Since Davis, we have limited the statute's application further, ruling that a conspiracy to commit Hobbs Act robbery does not count as a predicate 'crime of violence' for § 924(c) purposes, whether under the residual clause or the elements clause." (citing United States v. Ledbetter, 929 F.3d 338, 361 (6th Cir. 2019)).[5]
"We use a categorical approach to determine whether an offense constitutes a crime of violence for purposes of § 924(c)(3). Under this...
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