United States v. Birdinground
| Decision Date | 28 June 2018 |
| Docket Number | Cause No. CR 03-017-BLG-SPW,Cause No. CV 16-102-BLG-SPW |
| Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. QUINTON BIRDINGROUND, JR., Defendant/Movant. |
| Court | U.S. District Court — District of Montana |
ORDER GRANTING § 2255 MOTION AND SETTING RE-SENTENCING
This case comes before the Court on Defendant Birdinground's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Birdinground is a federal prisoner proceeding with counsel.
On February 21, 2003, Birdinground was indicted on one count of second-degree murder, a violation of 18 U.S.C. § 1111(a) (Count 1); one count of assault resulting in serious bodily injury, a violation of 18 U.S.C. § 113(a)(6) (Count 2); and one count of using or carrying and discharging a firearm during and in relation to "Assault and Murder," a violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count 3). Indictment (Doc. 10) at 2.
After a four-day jury trial, Birdinground was convicted on all three counts. Verdict (Doc. 57) at 1, 3. On March 11, 2004, he was sentenced to serve 168 months on Count 1, 120 months on Count 2, and a consecutive ten-year term on Count 3, for a total term of 288 months. Minutes (Doc. 64); Judgment (Doc. 65) at 1-2. Birdinground appealed. His conviction was affirmed on December 8, 2004, and became final on March 8, 2005. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
Birdinground now seeks relief under the United States Supreme Court's recent decision in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015).
Everyone would agree that a person who uses a firearm as a weapon in the course of committing a crime is using or at least threatening to use violence. Birdinground used a firearm as a weapon in committing a crime. But that does not necessarily mean he is guilty of using or carrying a firearm or possessing one in furtherance of a "crime of violence" within the meaning of 18 U.S.C. § 924(c).
Congress penalizes those who use a firearm to commit federal drug trafficking crimes and federal crimes of violence. Pursuant to 18 USC §924(c)(1)(A), a person who does the following will be penalized:
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[.]
Drug trafficking is not at issue here. The question is whether Birdinground used or carried a firearm or possessed one in furtherance of a "crime of violence." Congress defines the term as follows:
18 U.S.C. § 924(c)(3).
A person who trades a firearm for advice on how to commit tax fraud arguably uses the firearm during and in relation to tax fraud, or at least possesses the firearm in furtherance of tax fraud. Cf. Watson v. United States, 552 U.S. 74, 76 (2007); Smith v. United States, 508 U.S. 223, 241 (1993). But § 924(c) could not apply to that person, because tax fraud is not a "crime of violence"—that is, it does not have force as an element, and it does not "by its nature" involve a substantial risk that force will be used.
A person who uses a firearm to extort advice on how to commit tax fraud is at least threatening to use violence, and might even use violence, during and in relation to the crime of tax fraud. It would be reasonable to authorize punishment for using a firearm in that manner. Congress once did so. See Omnibus CrimeControl Act of 1970, Pub. L. No. 91-644, tit. II, § 13, 84 Stat. 1889, 1890 (Jan. 2, 1971) (); Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, § 1005(a), 98 Stat. 1837, 2138-39 (Oct. 12, 1984) (); see also Firearms Owners' Protection Act, Pub. L. No. 99-308, § 104(a)(2)(F), 100 Stat. 449 (May 19, 1986) ().
But Congress does not do so now. Since 1984, Congress has limited the instances in which a person can be punished for using or carrying a firearm in criminal activity. Section 924(c) could not apply to a person who uses a firearm to extort tax fraud advice, because tax fraud does not meet Congress's definition of a crime of violence.
Birdinground committed second-degree murder. The question is whether voluntary manslaughter meets Congress's definition of a "crime of violence."
Here, the key characteristic of Congress's definition of a "crime of violence" is that it applies to categories of crimes, not to the circumstances in which anindividual defendant uses or carries or possesses a firearm. Necessarily so, using a firearm as a weapon to commit a crime would make any crime a violent one. But if that was what Congress intended, the phrase "crime of violence" would be superfluous.
Congress uses the identical phrase, "crime of violence," elsewhere in Title 18, see § 16. It uses a similar phrase, "violent felony," elsewhere in § 924, at subsection 924(e)(2)(B). As to both § 924(e)(2)(B) and § 16, courts use a "categorical approach" to decide whether a given crime fits Congress' definition. This approach looks "only to the statutory definitions" of the crime, "not to the particular facts underlying" an individual defendant's commission of the crime. Taylor v. United States, 495 U.S. 575, 600 (1990); see also United States v. Sherbondy, 865 F.2d 996, 1009-10 (9th Cir. 1988) (), cited in Taylor, 495 U.S. at 600.
Both § 924(e)(2)(B) and § 16 have a different function than § 924(c). They are used to characterize an individual defendant's prior convictions in order to determine whether his or her criminal record justifies new consequences, such as a higher penalty for a new offense or removal from the United States. Prior convictions may be incurred in at least 51 different jurisdictions and may have widely varying elements and contexts, so they may or may not warrant newconsequences. For instance, a person convicted of "extortion" in a jurisdiction where the State must prove the defendant used a firearm as a weapon is not really comparable to a person convicted of "extortion" in a jurisdiction where the State need only prove the defendant contacted other people and threatened to publicly humiliate them unless they paid at least $1,000.
Section 924(c) does not concern prior convictions. The drug trafficking crime or crime of violence supporting a § 924(c) charge must be one "for which the person may be prosecuted in a court of the United States." 18 U.S.C. § 924(c)(1)(A). So the predicate crime will always be a federal crime, not one that will be defined in different jurisdictions. Further, the United States usually prosecutes the predicate crime at the same time as the § 924(c) charge, as it did in this case. As a result, there is an opportunity under § 924(c) to try the facts, with all the due process protections of a criminal trial. That opportunity does not exist under § 924(e)(2)(B) or § 16. A court could, under § 924(c), look to facts to decide whether a particular crime was a "crime of violence" in view of the way the defendant committed it. Cf. United States v. Robinson, 844 F.3d 137, 144 (3d Cir. 2016) (); see also Answer (Doc. 89) at 20-21. Maybe using a firearm as a weapon to compel someone to assist tax fraud should qualify as using a firearm during andin relation to a crime of violence under § 924(c)(1)(A).
But whether it should or not is not an open question. The Ninth Circuit has long required courts use the categorical approach to interpret § 924(c)(3) just as they interpret § 924(e)(2)(B) and § 16. See United States v. Benally, 843 F.3d 350, 352 (9th Cir. 2016); United States v. Amparo, 68 F.3d 1222, 1224-26 (9th Cir. 1995). Section 924(c) only penalizes those who use a firearm to commit some crimes. For the penalty to apply, the predicate crime to a § 924(c) conviction must always be a "crime of violence," regardless of how a particular defendant might commit the crime, and regardless of whether a firearm is used or carried or possessed in furtherance of it. "A crime cannot categorically be a 'crime of violence' if the statute of conviction punishes any conduct not encompassed by the statutory definition of a 'crime of violence.'" Benally, 843 F.3d at 352.
The next question is whether second-degree murder, as defined in federal law, is a "crime of violence," either because it "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," or because, "by its nature, [it] 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). To answer this question, the Court must use the categorical approach.
Second-degree murder always "involves a substantial risk that physical force against the person . . . of another...
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