United States v. Byrd

Decision Date13 April 2022
Docket NumberCivil ELH-21-613,Criminal ELH-11-657
PartiesUNITED STATES OF AMERICA v. BRUCE ERIC BYRD, Defendant.
CourtU.S. District Court — District of Maryland
MEMORANDUM OPINION

Ellen L. Hollander United States District Judge

In this case, I consider a post-conviction petition under 28 U.S.C § 2255 as well as a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), filed by or on behalf of defendant Bruce Eric Byrd.[1] Byrd was indicted in December 2011 (ECF 1), and a Superseding Indictment (ECF 16) was filed in February 2012. Byrd and two others were charged with conspiracy to commit murder for hire, in violation of 18 U.S.C. § 1958(a) (Count One); murder for hire under 18 U.S.C. § 1958(a) (Count Two); conspiracy to murder a witness, in violation of 18 U.S.C. §§ 1512(a)(1)(C), 3(A), and (k) (Count Three); murder of a witness, in violation of 18 U.S.C. §§ 1512(a)(1)(C) and 3(A) (Count Four); use of a firearm in relation to crimes of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count Five); and conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count Six).

In July 2012, Byrd entered a plea of guilty to Count Five of the Superseding Indictment, charging him with use and discharge of a firearm in relation to crimes of violence, in violation of 18 U.S.C. § 924(c). ECF 54. The plea was tendered in accordance with a Plea Agreement. ECF 57 (the “Plea Agreement”). Pursuant to Fed. R. Crim P. 11(c)(1)(C), the parties agreed to a sentence of 40 years of imprisonment. ECF 57, ¶ 8.

Of relevance here, the parties contemplated two predicate offenses for the § 924(c) conviction. They were conspiracy to use and cause another to use a facility in interstate commerce with intent to commit murder, resulting in the death of Isaiah Cortez Callaway, “as charged in Count One . . .”, in violation of 18 U.S.C. § 1958, and “conspiracy to kill a person with intent to prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense, as set forth in Count Three . . . resulting in the death of Isaiah Cortez Callaway, ” in violation of 18 U.S.C. § 1512(a)(1)(C). Id. ¶ 1. Callaway was 19 years old when he was murdered. EC 57-1 at 1 n.1.

Sentencing was held on October 15, 2012. ECF 96. In accordance with the Plea Agreement. Judge Garbis sentenced Byrd to 480 months of imprisonment (40 years). Id.; ECF 108 (Judgment). He is currently serving his sentence at FCI Coleman Medium. See ECF 325 at 1.

Byrd has filed a pro se Emergency Motion Requesting Home Confinement and/or a Reduction in Sentence Pursuant to the First Step Act and 18, [sic] U.S.C. § 3582(c)(1)(A)(i) and 28 U.S.C. § 1651.” ECF 322 (the “Compassionate Release Motion”). He seeks conversion of the remainder of his sentence to home confinement. The Office of the Federal Public Defender (“FPD”) has declined to supplement the Compassionate Release Motion. ECF 329. The government opposes the Compassionate Release Motion (ECF 340), supported by several exhibits. ECF 340-1 to ECF 340-3. Byrd has not replied, and the time to do so has passed.

In addition, through the FPD, Byrd has filed a Motion to Vacate Conviction Under 28 U.S.C. § 2255.” ECF 326 (§ 2255 Motion or the “Petition”).[2] The sole argument in the § 2255 Motion is that the predicate offenses for Byrd's § 924(c) conviction (Count Five) fail to qualify as crimes of violence in light of United States v. Davis __U.S.__, 139 S.Ct. 2319 (2019), and subsequent cases.[3]

The government opposes the § 2255 Motion. ECF 334; ECF 346.[4] Its opposition is supported by one exhibit. ECF 334-1; ECF 346-1. And, Byrd has replied. ECF 344. In addition, Byrd recently submitted a letter to the Court, advising of the government's position in litigation in the Eighth Circuit, as discussed below. ECF 347; ECF 347-1 (government's Eighth Circuit brief). The government has responded. ECF 350.

No hearing is necessary to resolve either motion. See Local Rule 105.6. For the reasons that follow, I shall deny both motions.

I. Background

Byrd and a codefendant, Tavon Dameon Davis, were indicted on December 6, 2011. ECF 1. They were charged with conspiracy to use interstate communication facilities in the commission of murder for hire, resulting in the death of Isaiah Cortez Callaway, in violation of 18 U.S.C. § 1958(a) (Count One); murder for hire, in violation of 18 U.S.C. § 1958(a) (Count Two); conspiracy to murder a witness, resulting in the death of Callaway, in violation of 18 U.S.C. § 1512(a)(1)(C), (3)(A), and (k) (Count Three); murder of a witness, in violation of 18 U.S.C. § 1512(a)(1)(C), (3)(A), and (k) (Count Four); using, carrying, and discharging a firearm during and in relation to crimes of violence, in violation of 18 U.S.C. § 924(c) (Count Five); and conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count Six). See ECF 1.

A Superseding Indictment was filed on February 23, 2012. ECF 16. It added a third defendant, Frank Marfo, and charged him with each of the six counts set forth above, as well as attempt to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count Seven). ECF 16.

Count One of the Superseding Indictment described a conspiracy between the three defendants to commit the murder for hire of Callaway. Id. at 1-7. The three defendants were alleged to be involved in a scheme to steal money orders and checks and to defraud banks. Id. Callaway, who also participated in the scheme, was arrested, and the three defendants became concerned about his possible cooperation with law enforcement. Id. According to the Superseding Indictment, the conspiracy culminated in Byrd shooting and killing Callaway on April 11, 2011, pursuant to his agreement with and at the direction of Davis and Marfo. Id. at 6-7. Davis and Marfo allegedly paid Byrd $2, 000 to commit the murder. Id. at 7.

By express terms, the charges in Count One, Count Two, Count Three, and Count Four of the Superseding Indictment were the predicate offenses for the § 924(c) charge in Count Five of the Superseding Indictment, and were incorporated into Count Five. Id. at 11-12.

A jury trial was scheduled to begin on July 30, 2012. See ECF 23. However, on July 17, 2012, Byrd entered a plea of guilty to Count Five of the Superseding Indictment, i.e., the § 924(c) charge. ECF 54.[5] As noted, pursuant to a Plea Agreement (ECF 57), entered under Fed. R. Crim. P. 11(c)(1)(C), the parties agreed to a sentence of forty years of imprisonment. Id. ¶ 8.

The Plea Agreement specifically provided that the predicate offenses for Count Five were conspiracy to use and cause another to use a facility in interstate commerce with intent that a murder be committed, resulting in the death of Callaway, in violation of 18 U.S.C. § 1958, and as charged in Count One of the Superseding Indictment, and conspiracy to kill a person with intent to prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission of a federal offense, resulting in the death of Callaway, in violation of 18 U.S.C. § 1512(a)(1)(C), and as set forth in Count Three of the Superseding Indictment. ECF 57, ¶ 1.

Paragraph 2 of the Plea Agreement set forth the elements of the offenses. The Plea Agreement specified, in part, id.:

First, that the defendant committed the crimes of violence set forth in Count One and Three ....
Second, that the defendant knowingly used and discharged a firearm during and in relation to these crimes of violence.
As to the predicate violent crimes in relation to which the firearm was used and discharged, the government would have to prove beyond a reasonable doubt:
As to the crime of violence described in Count One of the Superseding Indictment (conspiracy to use interstate communications facilities to commit murder-for-hire, 18 U.S.C. § 1958(a)) the government would prove that between on or about December 29, 2010 and April 11, 2011, in the District of Maryland, the Defendant knowingly and unlawfully conspired with at least one other person to use and cause another to use a facility in interstate commerce to wit, various cellphones and telephones that are part of the interstate communications system, with intent that the unlawful killing with malice aforethought of Isaiah Cortez Callaway be committed in violation of the laws of the United States, to wit, the offenses charged in Counts Three, Four, and Five of the Superseding Indictment, and in violation of the laws of the State of Maryland, to wit, MD Code, Criminal Law, § 2-201, first degree murder (which provides that a murder is in the first degree if it is a deliberate, premeditated, and willful killing); and MD Code, Criminal Law, § 2-204, second degree murder (which is the unlawful killing of a human being with malice aforethought); as consideration for the receipt of, and as consideration for a promise and agreement to pay, something of pecuniary value, that the Defendant intended that the death of Isaiah Cortez Callaway would result and that the death of Isaiah Cortez Callaway did in fact result.
As to crime [sic] of violence charged in Count Three of the Superseding Indictment (conspiracy to murder a witness, 18 U.S.C. § 1512(a)), the government would prove that between on or about December 29, 2010 and April 11, 2011, the Defendant and at least one other person knowingly and unlawfully conspired to kill Isaiah Cortez Callaway; with the intent that the killing prevent the communication to a federal law enforcement officer by Isaiah Cortez Callaway of information relating to the commission and possible commission of a federal offense, to wit, bank fraud and conspiracy to commit bank
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