Martino v. United States

• Decision Date: 01 July 2020
• Docket Number: No. 1:16-cv-735 (LMB),Crim. No. 1:13-cr-350-2 (LMB),1:16-cv-735 (LMB)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: CURTIS MARTINO, Movant, v. UNITED STATES OF AMERICA, Respondent.

CURTIS MARTINO, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 1:16-cv-735 (LMB)

Crim. No. 1:13-cr-350-2 (LMB)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

July 1, 2020

MEMORANDUM OPINION

Before the Court is Curtis Martino's ("Martino" or "movant") Motion to Vacate Conviction under 28 U.S.C. § 2255 ("Motion to Vacate"), in which he argues that his conviction for violating 18 U.S.C. § 924(c) must be vacated in light of recent Supreme Court precedent.¹ For the reasons stated below, Martino's Motion to Vacate will be dismissed.

I.

On August 29, 2013, a federal grand jury in the Eastern District of Virginia returned an indictment charging Martino and 23 co-defendants with being members of a gang called the Nine Trey Gangster Bloods, which engaged in multiple criminal acts. [Dkt. No. 1]. On September 26, 2013, the grand jury handed down a Superseding Indictment [Dkt. No. 112], which charged Martino with conspiracy to commit racketeering in violation of 18 U.S.C. §§ 1962(d), 1963(a) (Count 1); conspiracy to distribute 280 grams or more of cocaine base in violation of 21 U.S.C. §§ 841, 846 (Count 5); assault with a dangerous weapon in aid of racketeering in violation of 18 U.S.C. § 1959(a)(3)² and 2, and assault with a dangerous weapon in violation of Maryland Code§ 3-202 (Count 12); and carrying, brandishing, and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) (Count 13). The predicate offense for the § 924(c) charge in Count 13 were the assault offenses in Count 12. The assault described in Count 12 occurred on June 9, 2013.

On November 20, 2013, Martino pleaded guilty to Counts 1 and 13 of the superseding indictment, and the remaining counts were dismissed on the government's motion. In the Statement of Facts accompanying the Plea Agreement, Martino admitted the following facts with respect to the events of June 9, 2013:

On June 9, 2013, Curtis Martino and three other members of his NTG line-up drove from Alexandria, Virginia to [redacted] in Forest Heights, Maryland which was the home of K.W., a Crip gang member who cultivated marijuana for sale. The four gang members brought firearms and went to the Maryland residence with the intent of assaulting K.W. Upon arrival at the residence, Martino and his NTG members used a female acquaintance of K.W. to gain access to the residence. K.W. was confronted by members of Martino's group. A struggle ensued and an NTG member shot K.W. twice in the upper torso with a .38 caliber revolver.

[Dkt. No. 262] ¶ 6. On March 21, 2014, Martino was sentenced to a total term of imprisonment of 260 months, consisting of 140 months as to Count 1 and 120 months consecutive as to Count 13, to be followed by a five-year term of supervised release. Martino did not appeal either his convictions or his sentence.³

On June 23, 2016, through counsel, Martino filed the instant Motion to Vacate, arguing that his § 924(c) conviction should be vacated in light of Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Supreme Court held that the "residual clause" of 18 U.S.C. § 924(e)(2)'s definition of "violent felony" is unconstitutionally vague, see id. at 2557-63. On December 21, 2016, the proceedings were stayed to await further guidance from the Supreme Court. On April 17, 2018, the Supreme Court held that the residual clause of 18 U.S.C. § 16's definition of "crime of violence"—which is nearly identical to § 924(c)(3)'s residual clause—is unconstitutionally vague. Sessions v. Dimaya, 138 S. Ct. 1204, 1210 (2018). In the wake of Sessions, the stay was lifted, and the government filed a motion to dismiss, which movant opposed. On June 24, 2019, the Supreme Court held that the residual clause of § 924(c)(3)'s definition of "crime of violence" is also unconstitutionally vague. See United States v. Davis, 139 S. Ct. 2319, 2336 (2019). The parties were ordered to supplement their briefing on whether Martino would be entitled to relief and, if so, what form such relief should take. The matter is now fully briefed and ripe for decision.⁴

II.

Section 924(c) forbids the use, carrying, or brandishing of a firearm "during and in relation to any crime of violence." 18 U.S.C. § 924(c)(1)(A). It further defines "crime of violence" as any felony offense 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) "by its nature . . . involvesa substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Id. § 924(c)(3). Subsection (A) of the definition is known as the "force" clause; subsection (B), the "residual" clause.

After Davis, there is no dispute that the residual clause is unconstitutionally vague and cannot be used to support Martino's § 924(c) conviction. What remains is the question of whether the predicate offense underlying Count 13, assault with a dangerous weapon in aid of racketeering in violation of the VICAR statute, 18 U.S.C. § 1959(a)(3), or first-degree assault in violation of Md. Code § 3-202, qualifies as a crime of violence under the force clause and thereby can sustain Martino's § 924(c) conviction under Count 13.

Well-established case law sets forth the methodology the Court must employ in answering this question. To determine whether a given offense qualifies as a crime of violence under the force clause, courts "use an inquiry known as the 'categorical' approach," in which they "look to whether the statutory elements of the offense necessarily require the use, attempted use, or threatened use of physical force"⁵ and "consider only the crime as defined, not the particular facts in the case." United States v. Simms, 914 F.3d 229, 233 (4th Cir.), cert. denied, 140 S. Ct. 304 (2019). Although a court employing the categorical approach may not consider the defendant's actual conduct, if "the criminal statute is 'divisible'—that is, if it lists 'multiple, alternative elements, and so effectively creates several different . . . crimes'—the Court may look to 'a limited class of documents, such as indictments and jury instructions, to determine which alternative' served as the predicate offense." Larode v. United States, 356 F. Supp. 3d 561, 570(E.D. Va. 2019) (quoting Descamps v. United States, 570 U.S. 254, 257 (2013)); see also United States v. Gomez, 690 F.3d 194, 198 (4th Cir. 2012) (instructing that the modified categorical approach should be used "for the sole purpose of determining which part of the statute the defendant violated").

III.

The parties disagree as to whether the Court should conduct a categorical analysis of the generic federal crime represented by the VICAR statute or instead "look through" VICAR to examine the elements of the underlying state law predicate. District courts in Virginia have split on this issue. See United States v. McCall, No. 3:10-cr-170, 2019 WL 4675762, at *4 (E.D. Va. Sept. 25, 2019) (describing different courts' approaches to this issue). In this case, the answer to this question is inconsequential, because both offenses qualify as crimes of violence under § 924(c)'s force clause.

The VICAR statute, 18 U.S.C. § 1959, lists elements in the alternative, defining different offenses based on the predicate crime:

(a) Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished—

(1) for murder, by death or life imprisonment, or a fine under this title, or both; and for kidnapping, by imprisonment for any term of years or for life, or a fine under this title, or both;

(2) for maiming, by imprisonment for not more than thirty years or a fine under this title, or both;

(3) for assault with a dangerous weapon or assault resulting in serious bodily injury, by imprisonment for not more than twenty years or a fine under this title, or both;(4) for threatening to commit a crime of violence, by imprisonment for not more than five years or a fine under this title, or both;

(5) for attempting or conspiring to commit murder or kidnapping, by imprisonment for not more than ten years or a fine under this title, or both; and

(6) for attempting or conspiring to commit a crime involving maiming, assault with a dangerous weapon, or assault resulting in serious bodily injury, by imprisonment for not more than three years or a fine . . . under this title, or both.

18 U.S.C. § 1959(a). Given the structure of this statute, the Court may consult a limited class of documents, such as the indictment, to determine which specific provision of § 1959 formed the basis of movant's conviction. See Ellis v. United States, No. 4:08-cr-144, 2020 WL 1844792, at *2 (E.D. Va. Apr. 10, 2020); Cousins v. United States, 198 F. Supp. 3d 621, 625-26 (E.D. Va. 2016). The indictment, in turn, explicitly states that the VICAR offense at issue in this case is "assault with a dangerous weapon" in aid of racketeering activity, in violation of 18 U.S.C. § 1959(a)(3).⁶

Although § 1959(b) includes definitions of the terms "racketeering activity" and "enterprise," the statute does not define "assault." Therefore, "the Court must look to the elements of the predicate offense as it is genetically defined." Davis v. United States, 430 F. Supp. 3d 141, 145 (E.D. Va. 2019). "[C]ourts have uniformly recognized that various federal statutes criminalizing 'assault' incorporate the long-established common law definition of...