United States v. Gill

• Decision Date: 20 January 2023
• Docket Number: CRIM. JKB-07-0149
• Parties: UNITED STATES OF AMERICA v. ALLEN GILL, Defendant.
• Court: U.S. District Court — District of Maryland

UNITED STATES OF AMERICA
v.
ALLEN GILL, Defendant.

CRIM. No. JKB-07-0149

United States District Court, D. Maryland

January 20, 2023

MEMORANDUM

James K. Bredar, Chief Judge

Presently before the Court is Allen Gill's Motion to Vacate Convictions Under 28 U.S.C. § 2255 (ECF No. 186), as supplemented by subsequent filings. (ECF Nos. 196, 238.) In 2008, Gill pled guilty to one count of "Conspiracy to Distribute and Possess with Intent to Distribute Cocaine Base, Cocaine and Heroin" in violation of 21 U.S.C. § 846 ("Count One") and three counts of "Murder as a Result of Possession and Discharge of Firearms in Furtherance of a Racketeering Act" in violation of 18 U.S.C. § 924(j) ("Counts Two-Four" or the "§ 924Q) Counts"). (See Plea Agreement, ECF No. 197-3; Judgment, ECF No. 170.) He was sentenced to 480 months of imprisonment on each count to run concurrently. (See Judgment.)

Gill now asks the Court to vacate his convictions on the § 924(j) Counts and hold a resentencing. (See generally Corrected Supp. Mot. Vacate Conviction (hereinafter "Mot. Vacate"), ECF No. 238.) Gill's Motion has been fully briefed and no hearing is required for its disposition. See Local Rules 105.6, 207 (D. Md. 2021). For the reasons set forth below; Gill's Motion to Vacate Convictions will be granted and his convictions and sentences on the § 924(j) Counts will be vacated. The Court will not conduct a resentencing, and the sentence on Count

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One will remain in full force and effect. An Amended-Judgment will issue reflecting these corrections.

I. Factual and Procedural Background

Gill, along with two co-defendants, was charged in an Indictment returned on March 27, 2007, (see ECF No. 1), which was superseded for the first time on December 6, 2007 and for the second time on May 6, 2008. (See ECF Nos. 41, 91.) The three Indictments alleged various violations of 21 U.S.C. § 846 (Conspiracy to Distribute and Possess with Intent to Distribute Cocaine Base, Cocaine, and Heroin), 18 U.S.C. § 924(o) (Conspiracy to Possess Firearms in Furtherance of a Drug Trafficking Crime), 21 U.S.C. § 841 (a) (Possession with Intent to Distribute Cocaine Base), 18 U.S.C. § 924(c) (Possession of Firearms in Furtherance of a Drug Trafficking Crime), and 18 U.S.C. § 1959(a)(1) (Murder in Aid of Racketeering ("VICAR murder")).^[1] (See ECF Nos. 1, 41, 91.) Specifically, the Second Superseding Indictment (i.e., the third charging document) charged Gill with three counts of VICAR murder. (ECF No. 91.)

On June 27, 2008, Gill pled guilty to a four-count Criminal Information that charged one violation of 21 U.S.C. § 846 and three violations of 18 U.S.C. § 924(j) (Possession of Firearm in Furtherance of Murder in Aid of Racketeering). (See ECF Nos. 148, 152.) Only the § 924(j) convictions are at issue in the instant Motion to Vacate.

The Information alleged common facts as to the § 924(j) Counts, including that Gill was a "member[ ] of the Latrobe narcotics and firearms organization, a criminal organization, which operated in Baltimore City and elsewhere, whose members engaged in the distribution of controlled substances and committed acts of violence [,]" and that "[t]he Latrobe organization including its leadership, members and associates, constituted an 'enterprise,' as defined by

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[18 U.S.C. §] 1959(b)(2)[.]" (Crim. Information, ECF No. 197-2, at 2.) The Information further alleged that Gill was involved in the killings of Stewart Staggs (Count Two), Ramon Santana (Count Three), and Valencia Jones (Count Four) in aid of the Latrobe organization. (Id. at 4-6.) Other than the identities of the victims, the charging language of each of the three § 924(j) counts is identical. (Id.) The factual stipulation in Gill's plea agreement provided that, "[o]n November 15, 1999, Gill attempted to rob Stewart Staggs of his drug money, and proceeds[,]" but "Staggs refused and Gill shot and killed him in the 900 block of Webb Court, right outside of Latrobe Homes." (Plea Agreement at 5.) It further provided that "[d]uring the drug conspiracy, Gill robbed other drug dealers of their drugs and money" and "[o]n April 9,2003, [co-defendant Harry] Burton and Gill participated in the shooting of drug supplier Ramon Santana. .. after stealing his heroin." (Id. at 4.) Finally, it specified that on June 20, 2003, Gill "shot and killed Valencia Jones, based on the request and direction of Burton." (Id.)

Gill was sentenced on September 19,2008 to a stipulated sentence pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) of 480 months' imprisonment on each count, to run concurrently. (See Judgment; Plea Agreement at 5.) The written plea agreement contains a "waiver of appeal" provision that "waive[s] all rights conferred by 18 U.S.C. § 3742 to appeal the. 40 year sentence[.]" (Plea Agreement at 6.)

In 2016, Gill filed a. pro se Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255. (ECF No. 186). The Court appointed counsel for Gill (ECF No. 191) and held the Motion in abeyance for several years pending the resolution of pertinent cases in the Supreme Court and Court of Appeals for the Fourth Circuit. (ECF Nos. 193, 199, 209.) Gill, through counsel, filed a Corrected Supplemental Motion to Vacate Convictions on May 30, 2022. (ECF No. 238.)

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II. Legal Standard

Section 2255 allows a federal prisoner to move to set aside a sentence on the ground "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]" 28 U.S.C. § 2255. The petitioner in a § 2255 proceeding bears the burden of proving his entitlement to relief. See Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

III. Statutory Framework

The convictions at issue here involve a complex statutory regime that includes two layers of predicate offenses. Gill was convicted under 18 U.S.C. § 924(j), an essential element of which is "the commission of a § 924(c) violation[.]" United States v. Roof, 10 F.4th 314, 398 (4th Cir. 2021) (quoting United States v. Robinson, 275 F.3d 371, 378 (4th Cir. 2001)), cert, denied, 143 S.Ct. 303 (2022). Section 924(c), in turn, rests on the commission of a "crime of violence" in violation of federal law. See United States v. Young, 248 F.3d 260, 275 (4th Cir. 2001). Here, Gill's charged "crime[s] of violence" were VICAR murder, codified in 18 U.S.C. § 1959(a), which requires proof of a murder in violation of a state or federal law. See United States v. Manley, 52 F.4th 143, 149 (4th Cir. 2022). The parties' dispute centers on whether the underlying murder offenses on which the VICAR murders were predicated qualify as "crime[s] of violence" under § 924(c), and whether they therefore can sustain convictions under § 924(j). The Court will briefly outline these three statutes and the legal developments upon which Gill relies before addressing the issues raised in Gill's Motion and the Government's Opposition.

First, § 924(j) provides that, "[a] person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall—(1) if the killing is a murder (as

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defined in section 1111), be punished by death or imprisonment for any term of years or for life[.]" Subsection (c) makes it unlawful to, "during and in relation to any crime of violence or drug trafficking crime^[2] ... for which the person may be prosecuted in a court of the United States, use[ ] or carr[y] a firearm, or ... in furtherance of any such crime, possess[ ] a firearm[.]" 18 U.S.C. § 924(c)(1)(A). Thus, § 924Q) has three essential elements: "(1) that [the defendant] committed the predicate [§ 924(c) 'crime of violence'] offense; (2) that [the defendant] used the firearm during and in relation to the [predicate 'crime of violence'] offense; and (3) that, in the course of using that firearm, [the defendant] caused the murder of [another person]." United States v. Foster, 507 F.3d 233,245 (4th Cir. 2007). Only the first element—the commission of a "crime of violence"— is at issue in the instant Motion.

In this case, Gill was charged in each § 924(j) Count with "a crime of violence, to wit: murder in aid of racketeering[.]" (Crim. Information at 4-6.) Though the Information does not explicitly refer to the federal VICAR statute, the parties agree that the use of "murder in aid of racketeering" in the Information is in reference to § 1959(a). (Mot. Vacate at 3; Resp. Opp'n Mot. Vacate, ECF No. 247, at 13.) This statute proscribes several enumerated violent crimes (including murder) in aid of racketeering, and establishes five elements necessary for a VICAR conviction:

(1) that there be an "enterprise," as defined in § 1959(b)(2); (2) that the enterprise be engaged in "racketeering activity," as defined in 18 U.S.C. § 1961; (3) that the defendant have committed [a murder]; (4) that the [murder] have violated state or federal law; and (5) that the [murder] have been committed for a designated pecuniary purpose or "for the purpose of gaining entrance to or maintaining or increasing position in [the] enterprise."

Manley, 52 F.4th at 147, 149 (quoting 18 U.S.C. § 1959(a)). The underlying murder in violation of state or federal law "is the key conduct element in determining if the VICAR offense"

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constitutes a "crime of violence" under § 924(c). Cousins v. United States, 198 F.Supp.3d 621, 626 (E.D. Va. 2016).

Section 924(c) defines "crime of violence" as a felony offense that either "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," 18 U.S.C. § 924(c)(3)(A) (the "elements clause" or "force clause"), or "that by its nature, involves a substantial risk that physical force against the person or...