United States v. D-4 Tevin Bivins

• Decision Date: 30 April 2014
• Docket Number: Case No. 10–20397.
• Parties: UNITED STATES of America, Plaintiff, v. D–4 Tevin BIVINS, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

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UNITED STATES of America, Plaintiff
v.
D–4 Tevin BIVINS, Defendant.

Case No. 10–20397.

United States District Court, E.D. Michigan, Southern Division.

Signed April 30, 2014.

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John N. O'Brien, II, Jeanine Brunson, U.S. Attorney's Office, Detroit, MI, for Plaintiff.

Federal Defender, Federal Defender Office, Margaret S. Raben, Gurewitz & Raben, Detroit, MI, for Defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION TO VACATE GUILTY PLEAS

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

Defendant Tevin Bivins is named along with five co-defendants in an August 10, 2010 first superseding indictment, and is charged in nine of the ten counts of this indictment with (i) four counts of interference with commerce by robbery, in violation of 18 U.S.C. § 1951(a), (ii) four counts of using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A), and (iii) a single count of assaulting, resisting, or impeding a federal officer, in violation of 18 U.S.C. § 111. At a March 30, 2011 hearing, Defendant pled guilty to all nine of these charges, and the Court accepted this guilty plea and took Defendant's plea agreement under advisement.

Since the March 30, 2011 hearing, Defendant has attempted on four occasions to withdraw all or a portion of his guilty plea. The first two such efforts rested upon Defendant's pro se submissions to the Court in November of 2011 and October of 2012, in which Defendant claimed that he acted under duress when he pled guilty and was misled or coerced by his counsel into entering this plea. The Court denied these two pro se requests at hearings held on December 19, 2011 and October 23, 2012, finding that Defendant's claims of coercion or duress were contradicted by his statements in response to the Court's inquiries at the March 30, 2011 plea hearing.

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Following two changes in counsel, Defendant filed a June 12, 2013 motion through his present counsel, seeking for a third time to withdraw his guilty plea. The Court denied this motion at the conclusion of an August 6, 2013 hearing, finding that Defendant had failed to show the requisite “fair and just reason” under Fed.R.Crim.P. 11(d)(2)(B) for withdrawal of his guilty plea.

Through the present motion filed on March 21, 2014, Defendant once again seeks to vacate a portion of his guilty plea—specifically, his pleas as to the four § 924(c) offenses charged in counts 2, 6, 8, and 10 of the first superseding indictment. In support of this latest effort, Defendant reasserts one of the issues identified in his prior motion to withdraw his guilty plea: namely, the possible implications of the Supreme Court's grant of certiorari in the case of United States v. Rosemond, 695 F.3d 1151 (10th Cir.2012), cert. granted, ––– U.S. ––––, 133 S.Ct. 2734, 186 L.Ed.2d 191 (2013). The Supreme Court has now ruled in this case, see Rosemond v. United States, –––U.S. ––––, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), and Defendant maintains that in light of this ruling, there is no longer a factual basis for his guilty pleas to the four § 924(c) offenses charged in the indictment.

On April 23, 2014, the Court held a hearing on Defendant's latest challenge to his guilty plea. For the reasons stated at the April 23 hearing, as reiterated in greater detail below, the Court denies Defendant's motion to vacate his pleas of guilty to counts 2, 6, 8, and 10 of the first superseding indictment.

II. ANALYSIS

A. The Supreme Court's Ruling in Rosemond

In Rosemond, the Supreme Court addressed the issue of “what the Government must show when it accuses a defendant of aiding and abetting” a § 924(c) offense. Rosemond, 134 S.Ct. at 1243. Under the law of some circuits—including the Tenth Circuit in the case before the Supreme Court, see Rosemond, 695 F.3d at 1154–56, as well as the Sixth Circuit, see United States v. Gardner, 488 F.3d 700, 712 (6th Cir.2007) —it was sufficient prior to Rosemond to show that the defendant “knew one of his accomplices possessed a gun in furtherance of a drug trafficking offense [or crime of violence] and that [the defendant] acted with the intent to assist in or influence the commission of the underlying drug trafficking crime [or crime of violence].” Gardner, 488 F.3d at 712. In other circuits, however, the Government was required to show in addition “that the defendant took some action to facilitate or encourage his cohort's use of the firearm.” Rosemond, 695 F.3d at 1155 (acknowledging this circuit split but adhering to Tenth Circuit precedent that did not demand this showing). The Supreme Court granted certiorari in Rosemond to resolve this circuit split.

In addressing the theory of aiding and abetting a § 924(c) offense, the Supreme Court first observed that § 924(c) defines a “double-barreled crime,” in that the Government “must show the use or carriage of a gun” plus “the commission of a predicate (violent or drug trafficking) offense.” Rosemond, 134 S.Ct. at 1245. Upon considering the background principles of aiding and abetting law, under which a person “possessing the requisite intent” is guilty of aiding and abetting so long as he “facilitate[s] any part—even though not every part—of a criminal venture,” the Court found that a defendant may be held criminally liable for aiding and abetting a § 924(c) offense if he “facilitat[es] either the [underlying violent or drug trafficking

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offense] or the firearm use (or of course both).” 134 S.Ct. at 1246–47. In addition, the Government must establish an intent that “go[es] to the specific and entire crime charged—so here, to the full scope (predicate crime plus gun use) of § 924(c).” 134 S.Ct. at 1248.

The Court then elaborated at length on the showing of intent that must be made in order to convict a defendant of aiding and abetting a § 924(c) offense:

... An active participant in a drug transaction [or crime of violence] has the intent needed to aid and abet a § 924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope—that the plan calls not just for a drug sale [or crime of violence], but for an armed one. In so doing, he has chosen ... to align himself with the illegal scheme in its entirety—including its use of a firearm. And he has determined ... to do what he can to make that scheme succeed. He thus becomes responsible, in the typical way of aiders and abettors, for the conduct of others. He

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