United States v. Jennings, Criminal No. 3:18-cr-34

• Decision Date: 06 July 2018
• Docket Number: Criminal No. 3:18-cr-34
• Parties: UNITED STATES OF AMERICA v. TERRAIL LAMONT JENNINGS, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

UNITED STATES OF AMERICA v. TERRAIL LAMONT JENNINGS, Defendant.

Criminal No. 3:18-cr-34

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

July 6, 2018

MEMORANDUM OPINION

This matter is before the Court on Defendant's MOTION TO DISMISS COUNT TWO OF THE INDICTMENT (ECF No. 14). For the following reasons, the motion will be denied.

BACKGROUND

This case involves the prosecution of Defendant Terrail Lamont Jennings for Interference with Commerce by Robbery ("Hobbs Act Robbery") in violation of 18 U.S.C. § 1951 (Count 1) and for Use and Carrying of a Firearm During and in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c). See Indictment 1. The Indictment alleges, it appears, that Jennings brandished a firearm at an Exxon gas station and convenience store in Richmond, Virginia and demanded all the money in the cash register. See Indictment 1-2.¹ Jennings moves to dismiss Count 2 of the Indictment, i.e., the firearm offense.

THE STANDARDS GOVERNING FED. R. CRIM. P. 12(b)

Although Jennings does not clarify the procedural ground for his motion to dismiss, the Court construes it as a motion to dismiss under Fed. R. Crim. P. 12(b)(3).

Fed. R. Crim. P. 12(b)(1) provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). Under Fed. R. Crim. P. 12(b)(3), a defendant may raise, by pretrial motion, the issue of "a defect in the indictment or information, including . . . failure to state an offense," at least so long as "the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits." Fed. R. Crim. P. 12(b)(3). "The defendant is entitled to dismissal if he shows that the indictment's allegations, 'even if true, would not state an offense.'" United States v. Whyte, 229 F. Supp. 3d 484, 488 (W.D. Va. 2017) (citations omitted).

DISCUSSION

Jennings argues that the Indictment should be dismissed as to Count 2 because Hobbs Act Robbery cannot legally qualify as a "crime of violence" under 18 U.S.C. § 924(c), which is the basis for Jennings' firearm charge. Def. Br. 1. He asserts that "crime of violence" is defined in two ways under 18 U.S.C. § 924(c), and he claims that one definition does not encompass Hobbs Act Robbery and that the other definition is unconstitutionally vague. Def. Br. 1-2.

I. 18 U.S.C. § 924(c)

18 U.S.C. § 924(c)(1)(A) imposes criminal penalties upon "any person who, during and in relation to any crime of violence . . . 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." 18 U.S.C. § 924(c)(1)(A). A "crime of violence" is defined as a felony that:

(A) 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.

Id. § 924(c)(3). The first clause is called "the Force Clause" and the second is referred to as "the Residual Clause."²

II. The Force Clause

Jennings argues that the Force Clause does not encompass Hobbs Act Robbery. Def. Br. 10-15. That argument, however, is unpersuasive.

A. The Categorical Approach

1. Introduction to the Categorical Approach & Its Applicability

A threshold matter involves the mode of analysis. When assessing whether an offense qualifies as a crime of violence under 18 U.S.C. § 924(c), courts typically apply what is known as the "categorical approach." See United States v. Evans, 848 F.3d 242, 245-46 (4th Cir. 2017). "Under the categorical approach, [courts] analyze only the elements of the offense in question, rather than the specific means by which the defendant committed the crime." Id.

The parties do not dispute that the categorical approach applies to the Force Clause. And, although "[u]ntil very recently, the categorical approach was limited to the sentencing context," see United States v. McDaniels, 147 F. Supp. 3d 427,431 (E.D. Va. 2015), that has since changed. In recent years, the Fourth Circuit has made clear that courts should apply the categorical approach to the question of whether an offense is a crime of violence at all stages of a proceeding. See, e.g., Evans, 848 F.3d at 244-48 (affirming the district court's denial of a pre-trial motion to dismiss the indictment based on the categorical approach); United States v. Fuertes, 805 F.3d 485, 497-99, 501 (4th Cir. 2015) (reversing the district court's denial of a post-trial motion for judgment of acquittal and remanding for entry of judgment of acquittal based on the categorical approach).

2. The Modified Categorical Approach

There is a question as to whether the plain or "modified" categorical approach governs here. As the Fourth Circuit has explained:

Only in a "narrow range of cases," when a crime is divisible, do we employ the "modified categorical approach," in which a court may consider a limited set of documents to determine the basis of a defendant's conviction. A crime is divisible when it includes multiple "alternative elements" that create different versions of the crime, at least one of which would qualify under the federal definition and at least one of which would not.

A crime is not divisible simply because it may be accomplished through alternative means, but only when alternative elements create distinct crimes.

United States v. Gardner, 823 F.3d 793, 802 (4th Cir. 2016) (citations omitted). In applying the modified categorical approach, courts may consider, inter alia, "the charging document and jury instructions." See United States v. Lopez-Collazo, 824 F.3d 453, 463 (4th Cir. 2016) (citations omitted); see also Gardner, 823 F.3d at 802.

18 U.S.C. § 1951 qualifies for the modified categorical approach. The statute states, in relevant part:

(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

(b) As used in this section--

(1) The term "robbery" means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

(2) The term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

18 U.S.C. § 1951.

In United States v. Hancock, 168 F. Supp. 3d 817 (D. Md. 2016), the district court thoughtfully explained why, in assessing 18 U.S.C. § 1951, the modified categorical approach should be used. After recognizing that courts have reached differing conclusions as to the divisibility of 18 U.S.C. § 1951, the court in Hancock observed:

This confusion is understandable because the Hobbs Act contains both divisible and indivisible provisions. . . . Clearly, there are multiple disjunctive phrases in [18 U.S.C. § 1951(a)]. But the relevant question is whether they represent alternative means of accomplishing one element or whether there are alternative elements proscribed for proving the crime. The answer is found in § 1951(b) wherein the Hobbs Act explicitly provides at least two alternative elements: one in subsection (b)(1) for robbery and an alternative for extortion in subsection (b)(2). Thus, the Hobbs Act is divisible as there are two or more alternative sets of elements. The Court must therefore use the modified categorical approach but may only do so to determine which of these forms of the Hobbs Act (robbery or extortion) is at issue in this case.

Id. at 820-21 (citations omitted).³ And, other decisions have applied the modified categorical approach to 18 U.S.C. § 1951 (or recognized that courts have done so). See United States v.Herstch, 3:17-cr-92, 2017 WL 4052383, at *3 n.6 (E.D. Va. Sept. 12, 2017); United States v. Clarke, 171 F. Supp. 3d 449, 452-53 (D. Md. 2016); United States v. Redmond, 3:14-cr-226, 2015 WL 5999317, at *2-3 (W.D.N.C. Oct. 13, 2015).

In determining which alternative element is at issue here, it is necessary to look no further than the Indictment. The language therein clearly indicates that Jennings has been charged with Hobbs Act Robbery rather than Extortion. Indictment 1-2.⁴ Thus, the appropriate analysis to be made here is whether Hobbs Act Robbery categorically constitutes a crime of violence under the Force Clause of 18 U.S.C. § 924(c). To that we now turn.

3. Analyzing Crimes of Violence Under the Categorical Approach

There are several guiding principles that inform the analysis of whether an offense is a crime of violence under the categorical approach.

The first principle relates to how an offense is analyzed under the categorical approach. As the Fourth Circuit has instructed:

In making the determination of whether the offense meets the requirements of the force clause, "we focus on 'the minimum conductnecessary for a violation.'" "Such minimum culpable conduct includes any conduct to which there is a 'realistic probability, not a theoretical possibility'" against which the law would be enforced.

United States v. Diaz, 865 F.3d 168, 178 (4th Cir. 2017) (emphasis added) (citations omitted).⁵ Furthermore, the Supreme Court has made clear that:

To show that realistic probability, an offender, of course, may show that the

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