United States v. Green, No. 17-10346

• Decision Date: 11 August 2020
• Docket Number: No. 17-10346
• Citation: 969 F.3d 1194
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charlie L. GREEN, Nathaniel Harris, Jerry W. Green, Jr., Napoleon Harris, Corey Deonta Harris, Deonte Jamal Martin, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

969 F.3d 1194

UNITED STATES of America, Plaintiff-Appellee,

v.Charlie L. GREEN, Nathaniel Harris, Jerry W. Green, Jr., Napoleon Harris, Corey Deonta Harris, Deonte Jamal Martin, Defendants-Appellants.

No. 17-10346

United States Court of Appeals, Eleventh Circuit.

August 11, 2020

Linda Julin McNamara, Natalie Hirt Adams, James A. Muench, Christopher Francis Murray, U.S. Attorney's Office, Tampa, FL, Arthur Lee Bentley, III, Bradley Arant Boult Cummings, LLP, Tampa, FL, Laura Gwinn, Marty Woelfle, U.S. Department of Justice, Criminal Division, Washington, DC, for Plaintiff-Appellee.

Matthew P. Farmer, Matthew P. Farmer, Esq., Tampa, FL, for Defendant-Appellant Charlie L. Green.

Daniel Mario Hernandez, Daniel M. Hernandez, PA, Tampa, FL, for Defendant-Appellant Nathaniel Harris.

Anne Frances Borghetti, Attorney, Law Offices of Anne Borghetti, Clearwater, FL, for Defendant-Appellant Jerry W. Green, Jr.

Frank Louderback, Law Office of Franklyn Louderback, Saint Petersburg, for Defendant-Appellant Napoleon Harris.

Bjorn Erik Brunvand, Brunvand Wise, PA, Clearwater, FL, for Defendant-Appellant Corey Deonta Harris.

Corey Deonta Harris, Pro Se.

Kevin T. Beck, Law Office of Kevin T. Beck, PA, St. Pete Beach, FL, for Defendant-Appellant Deonte Jamal Martin.

Deonte Jamal Martin, Pro Se.

Russell M. Aoki, Aoki Law PLLC, Seattle, WA, Frederick W. Vollrath, Frederick W. Vollrath, Attorney at Law, Tampa, FL, for Service.

Before WILSON and GRANT, Circuit Judges, and HINKLE,^* District Judge.

WILSON, Circuit Judge:

This appeal arises out of the convictions of Charlie Green, Napoleon Harris, Nathaniel Harris, Jerry Green, Corey Harris,¹ and Deonte Martin—a group of brothers, relatives, and friends who operated a drug-trafficking organization in Bradenton, Florida. Members of the group used and carried guns; kidnapped, beat, and murdered people; and tampered with witnesses of their crimes. Most of the appellants were convicted of participating in a racketeering conspiracy under the Racketeer Influenced and Corrupt Organizations (RICO) Act and a drug-trafficking conspiracy, as well as gun crimes and other crimes. The appellants raise various challenges related to their convictions, their sentences, and various decisions the district court made throughout the pre-trial and trial process.

Two issues warrant special attention: whether RICO conspiracy qualifies as a crime of violence under 18 U.S.C. § 924(c) —an issue of first impression in the Eleventh Circuit—and whether Corey's sentence is procedurally and substantively reasonable. Because we hold that RICO conspiracy does not qualify as a crime of violence under § 924(c), we vacate the appellants’ § 924(c) convictions and sentences, and we remand to the district court for resentencing. And because we determine that Corey's sentence was procedurally unreasonable, we vacate his sentence and remand for resentencing. We affirm as to the remaining issues.

BACKGROUND

Napoleon, Nathaniel, and Charlie are brothers. Together with friends and relatives such as Corey, Jerry, and Martin, they made up a "crew" that, starting in at least the mid-2000s, sold crack cocaine, powder cocaine, marijuana, heroin, and other drugs throughout Bradenton, Florida. The appellants and others prepared, packaged, and distributed drugs out of various trap houses, and members of the crew sold drugs for and with each other, relying on an intertwined network of sellers. To establish the crew's dominance, further its drug-trafficking operation, eliminate competition, and avoid prosecution, members of the crew shared and used guns, vehicles, and cell phones; fled from law enforcement; and participated in a myriad of violent acts, including kidnappings, attempted murders, and murders spanning from April 2007 to August 2013.

The appellants were indicted for 28 counts of RICO conspiracy, conspiracy to distribute controlled substances, using a firearm during and in relation to various crimes of violence, and other related drug and firearm offenses. Following a trial, a jury convicted each defendant on various counts. This appeal followed.

DISCUSSION

I. RICO Conspiracy as a "Crime of Violence"

Napoleon, Nathaniel, Charlie, Jerry, and Martin were convicted of various § 924(c) counts for using, carrying, and discharging a firearm during and in relation to the RICO conspiracy charged in Count One. They challenge their convictions and the accompanying sentences under § 924(j), claiming that RICO conspiracy is not a "crime of violence" under § 924. Section 924(c)(3) defines a "crime of violence" as a felonious offense:

(A) [that] has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, 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). We typically refer to § 924(c)(3)(A) as the elements clause and to § 924(c)(3)(B) as the residual clause. The Supreme Court recently invalidated the residual clause as unconstitutionally vague. See United States v. Davis , 588 U.S. ––––, 139 S. Ct. 2319, 2323–24, 2336, 204 L.Ed.2d 757 (2019). Therefore, we must determine whether RICO conspiracy qualifies as a crime of violence under the elements clause.

"We apply the categorical approach when determining whether an offense constitutes a ‘crime of violence’ under the elements clause," meaning "we look to whether the statutory elements of the predicate offense necessarily require, at a minimum, the threatened or attempted use of force." Brown v. United States , 942 F.3d 1069, 1075 (11th Cir. 2019) (per curiam). In Brown , this court evaluated whether conspiracy to commit Hobbs Act robbery is a crime of violence under § 924(c)(3) ’s elements clause. Id. at 1075–76. We noted, "The elements of conspiracy center on a defendant's agreement to commit a crime and do not require the government to prove the elements of the underlying substantive crime itself." Id. at 1075. Applying the categorical approach to the elements of a conspiracy to commit Hobbs Act robbery,² we concluded that conspiracy to commit Hobbs Act robbery does not qualify as a crime of violence under § 924(c)(3) ’s elements clause. Id. We reasoned:

Neither an agreement to commit a crime nor a defendant's knowledge of the conspiratorial goal necessitates the existence of a threat or attempt to use force. The same goes for the final element—a defendant's voluntary participation that furthers the goal of committing Hobbs Act robbery—because a defendant's voluntary participation may manifest itself in any one of countless non-violent ways.

Id.

RICO conspiracy is virtually indistinguishable from a conspiracy to commit Hobbs Act robbery. "To establish a RICO conspiracy violation under 18 U.S.C. § 1962(d), the government must prove that the defendants objectively manifested, through words or actions, an agreement to participate in the conduct of the affairs of the enterprise through the commission of two or more predicate crimes." United States v. Starrett , 55 F.3d 1525, 1543 (11th Cir. 1995) (per curiam) (emphasis added) (internal quotation mark omitted). RICO conspiracy requires neither proof of the commission of an overt act nor proof of an agreement to commit individual predicate acts. Id. ; see United States v. Pepe , 747 F.2d 632, 659 (11th Cir. 1984). A RICO conspiracy thus differs from a regular conspiracy because it "may encompass a greater variety of conduct." Pepe , 747 F.2d at 659. So as with a conspiracy to commit Hobbs Act robbery, the elements of a RICO conspiracy focus on the agreement to commit a crime, which does not "necessitate[ ] the existence of a threat or attempt to use force." Brown , 942 F.3d at 1075. Therefore, RICO conspiracy does not qualify as a crime of violence under § 924(c)(3).

Given the evolution of the law since the parties submitted their briefs, the government conceded at oral argument that RICO conspiracy generally does not qualify as a crime of violence under § 924(c). But the government made one last-ditch effort, arguing that the appellants were convicted of a different crime—"aggravated RICO conspiracy"—which, according to the government, does qualify as a crime of violence. The argument is this: 18 U.S.C. § 1963(a), which establishes statutory maximum sentences for § 1962 offenses, adds an element to a typical § 1962(d) violation where the violation is based on a racketeering activity that carries a maximum penalty of life imprisonment. In other words, an individual commits aggravated RICO conspiracy by (1) "objectively manifest[ing], through words or actions, an agreement to participate in the conduct of the affairs of the enterprise through the commission of two or more predicate crimes" (2) "for which the maximum penalty includes life imprisonment." Cf. §§ 1962(d), 1963(a) ; Starrett , 55 F.3d at 1543.

Assuming without deciding that a distinct crime of aggravated RICO conspiracy exists, there is nothing in the indictment or elsewhere to indicate that these appellants were charged with and convicted of it. Neither the indictment nor the jury instructions referenced § 1963(a) —and the first time the government proposed that these appellants were charged or tried for a crime other than conventional RICO conspiracy was after the briefs were filed, in a "supplemental" authority letter. Thus, the indictment's omission of any reference to aggravated RICO conspiracy or § 1963(a) is not merely a "citation error" as contemplated by Federal Rule of Criminal Procedure 7(c)(2). The government cannot salvage the appellants’ § 924(c) convictions by reimagining the charged crimes.³

II. Corey's Sentence

Corey challenges his 120-year sentence as both procedurally and substantively unreasonable. He argues that the district court procedurally erred by failing to adequately explain its five-fold upward variance from the appropriate guideline range. Further, he contends the district...