Larode v. United States

• Decision Date: 24 January 2019
• Docket Number: Crim. No. 1:05-cr-61 (LMB),No. 1:16-cv-741 (LMB),1:16-cv-741 (LMB)
• Citation: 356 F.Supp.3d 561
• Parties: Ossie K. LARODE, Movant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

356 F.Supp.3d 561

Ossie K. LARODE, Movant,

v.UNITED STATES of America, Respondent.

No. 1:16-cv-741 (LMB)

Crim. No. 1:05-cr-61 (LMB)

United States District Court, E.D. Virginia, Alexandria Division.

Filed January 24, 2019

Jonathan Shapiro, Law Office of Jonathan Shapiro, Alexandria, VA, Gerald Thomas Zerkin, Office of the Public Defender, Richmond, VA, Geremy C. Kamens, Office of Federal Public Defender, Joseph John McCarthy, Delaney McCarthy & Colton PC, Todd M. Richman, Public Defenders Office, Alexandria, VA, for Movant.

Erik R. Barnett, United States Attorney's Office, Alexandria, VA.

MEMORANDUM OPINION

Leonie M. Brinkema, United States District Judge

Before the Court is Ossie K. Larode's ("Larode" or "movant") motion, filed under 28 U.S.C. § 2255, to vacate his conviction in light of Johnson v. United States (Johnson II ), ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Sessions v. Dimaya, ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018). The Government has moved to dismiss Larode's § 2255 motion on multiple procedural and substantive grounds. For the reasons that follow, the Government's motion to dismiss will be granted, and Larode's § 2255 motion will be dismissed.

I.

Larode was initially indicted on February 10, 2005 by a federal grand jury in the Eastern District of Virginia. After one of the injured victims died as a result of his injuries, on April 6, 2005, a superseding five-count indictment was returned charging Larode with carjacking resulting in death in violation of 18 U.S.C. § 2119 (Count 1); murder of a federal officer in violation of 18 U.S.C. § 1111 (Count 2); assaulting a federal officer in violation of 18 U.S.C. § 111 (Count 3); attempted murder of a federal officer in violation of 18 U.S.C. § 1114 (Count 4); and using, brandishing, and discharging a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) (Count 5). Counts 3 and 4 were the predicate crimes of violence for Count 5.

Under a written plea agreement, on June 30, 2006, Larode pleaded guilty to murder in the second degree as charged under Count 2 and to using a firearm during a crime of violence as charged under Count 5. Counts 1, 3, and 4 were dismissed on the Government's motion. The plea agreement incorporated a signed statement of facts that established the following:

On January 11, 2005, defendant Ossie K. Larode approached Mr. Byung Ki Kim outside the McDonald's restaurant located at 1000 North Henry Street, in Alexandria, Virginia, knocked the keys to a 2003 Cadillac Seville from Kim's hand, threatened to shoot Kim if he didn't back away, got in the vehicle and drove off.

Kim telephoned a report of the carjacking to the Alexandria Police Department, and Alexandria police and other law enforcement officers began looking for the vehicle. One of those officers spotted the vehicle in Alexandria and began a pursuit that eventually was joined by other officers and led to Interstate 395 in the vicinity of the Pentagon. As Larode drove by the Pentagon, he suddenly turned the wrong way on to [sic] an exit ramp that led from the Pentagon South Parking Lot to Interstate 395, and sped toward the South Parking Lot, followed by several pursuing officers. As he left the ramp he continued the wrong way on South Rotary Road, which runs along the perimeter of the parking lot and which is in the Eastern District of Virginia.

At that same time, James Feltis, a federal employee and officer with the Pentagon Police Department, was on duty outside a traffic control booth on South Rotary Road. Apparently, thinking that Larode was simply lost or confused, Feltis stepped into the traffic lane and into the path of the Cadillac and signalled [sic] for him to stop. Instead and without making any effort to slow down or stop, Larode struck Feltis, critically injuring him and knocking him into the air.

Feltis was medevaced to Inova Fairfax Hospital, in Fairfax, Virginia, where he died, having never regained consciousness, on February 14, 2005, as a proximate result of the injuries he incurred when he was struck by Larode. Throughout his attempt to elude the pursuing officers, including the time immediately before his striking of Feltis, defendant Larode drove the stolen Cadillac recklessly with extreme disregard for human life. His taking of Feltis' life was unlawful and did not result from accident, inadvertence or other [sic] innocent reason.

After striking Feltis, Larode continued the wrong way on South Rotary Road, up the wrong way on the ramp to Washington Boulevard with several officers still in pursuit and entered Washington Boulevard still going the wrong direction. Larode then tried to turn in the right direction, and as he did so, his car was struck and stopped by one of the pursuing officers. Once Larode stopped, one of those officers ordered him to get out of his vehicle. When he didn't, the officers broke the drivers [sic] side window and pulled Larode from the vehicle. A struggle ensued between Larode and the officers, during which Larode assaulted three Pentagon Police Department officers, who were assisting in subduing Larode, and all of whom at the time were employees of the United States engaged in the performance of their official duties. In the course of Larode's assaulting the Pentagon Police Department officers, he got possession of one of the other officers' service firearms, a Glock .40 caliber semiautomatic pistol, and fired it three times at them.

Larode's assaulting of the three Pentagon Police Department officers was unlawful as was his using, brandishing and discharging the pistol during and in relation to that assault.

Statement of Facts [Dkt. No. 55] ¶¶ 1-6. Larode's plea was accepted, and he was sentenced to a total of 382 months' imprisonment, consisting of 262 months for Count 2 and 120 consecutive months for Count 5, among other penalties.¹ Larode did not appeal either his conviction or his sentence.

On June 23, 2016, Larode filed a motion pursuant to 28 U.S.C. § 2255 arguing that his conviction for using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) should be vacated in light of Johnson II, 135 S.Ct. 2551 (2015), which held that 18 U.S.C. § 924(e)(2)(B)(ii ) —what is known as the "residual clause" of the Armed Career Criminal Act ("ACCA")—was unconstitutionally vague, id. at 2556-63. The Government moved to dismiss Larode's § 2255 motion. In December 2016, the Court stayed these proceedings to await the decision in what became Sessions v. Dimaya, ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), in which the Supreme Court held that a similar residual clause in 18 U.S.C. § 16(b) was also unconstitutionally vague. After the Dimaya opinion was issued, the stay in these proceedings was lifted, and the Government was ordered to show cause why Larode's motion should not be granted. The Government responded with a supplemental motion to dismiss, which has been fully briefed, and the Court finds that oral argument would not aid the decisional process.

II.

A.

Section 924(c) of Title 18 of the U.S. Code provides 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 ..., 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 ... —

(i) ... be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

....

(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.

18 U.S.C. § 924(c)(1), (3). Subsection (A) of § 924(c)(3) is often called the "force" or "elements" clause,² and subsection (B) is known as the "residual" clause.

Section 924(c)(3) is similar in text and structure to other provisions of the U.S. Code. For example, using nearly identical language, 18 U.S.C. § 16 provides:

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. § 16.³ Similarly, the ACCA, in 18 U.S.C. § 924(e), provides:

[T]he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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, extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another....

Id. § 924(e)(2)(B).⁴

B.

Larode's motion to vacate his conviction for using a firearm during a crime of violence in violation of § 924(c) is based on two Supreme Court decisions respectively addressing § 924(e)(2)(B)(ii ) and § 16(b) : Johnson II, 135 S.Ct. 2551 (2015), and Sessions v. Dimaya, ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018). Johnson II held that the ACCA's residual clause was unconstitutionally vague and thus could not be used to increase a defendant's...