United States v. Jones

• Decision Date: 28 August 2017
• Docket Number: Case No. 7:16-cr-30026
• Court: U.S. District Court — Western District of Virginia
• Parties: UNITED STATES OF AMERICA, v. MICHAEL JONES, et al., Defendants.

UNITED STATES OF AMERICA, v. MICHAEL JONES, et al., Defendants.

Case No. 7:16-cr-30026

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

FILED: August 29, 2017

August 28, 2017

By: Michael F. Urbanski Chief United States District Judge

MEMORANDUM OPINION

This matter comes before the court on defendants Terrance Brown's and Michael Dove's motions to dismiss the counts in the Superseding Indictment charging them with the use and discharge of firearms during crimes of violence, in violation of 18 U.S.C. § 924(c).¹ ECF Nos. 278, 437. The government alleges that the crimes of violence Brown and Dove committed for purposes of § 924(c) are the violent crime in aid of racketeering ("VICAR") offenses, in violation of 18 U.S.C. § 1959(a)(3), also charged in the Superseding Indictment. Defendants contend that the alleged VICAR violations do not qualify as crimes of violence under § 924(c)(3). Accordingly, they request dismissal of the § 924(c) counts for failure to state a claim. For the reasons that follow, the court will deny defendants' motions.

I.

This case involves alleged gang activity by members of the Mad Stone Bloods ("MSB"). Counts One and Two charge Brown, Dove, and others with violations of RICOand drug conspiracy, in violation 18 U.S.C. §§ 1962(d) and 846. Counts Three and Six charge both Brown and Dove with the VICAR offenses of assault with a dangerous weapon or assault resulting in serious bodily injury, in violation of § 1959(a)(3). Count Four charges Dove and Count Five charges Brown with § 924(c)(1)(A)(i) violations for using firearms during the VICAR offense charged in Count Three. Likewise, Count Seven charges Dove and Count Eight charges Brown with § 924(c)(1)(A)(iii) offenses for discharging firearms during the VICAR offense charged in Count Six.

Defendants argue that VICAR offenses do not qualify as § 924(c) predicates in light of the Supreme Court's decisions in Johnson v. United States, 559 U.S. 133 (2010) ("Johnson I") and Johnson v. United States, 135 S. Ct. 2551 (2015) ("Johnson II"). Those cases examine the definition of "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), a statute that shares some commonalities with § 924(c). The ACCA defines "violent felony" as:

[A]ny crime punishable by imprisonment for a term exceeding one year ... that-

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). In Johnson I, the Supreme Court held that predicate offenses may only qualify under § 924(e)(2)(B)(i), commonly referred to as the ACCA's "force clause," if the predicate offense requires the use of "violent force—that is, force capable of causing physical pain or injury to another person." Johnson I, 559 U.S. at 140 (emphasis original). InJohnson II, the Supreme Court held that the ACCA's "residual clause" is unconstitutionally vague, as indicated by the struck-through language above. Johnson II, 135 S. Ct. at 2563.

Defendants contend that Johnson I and Johnson II require dismissal of the § 924(c) counts in the Superseding Indictment given similarities between the ACCA's definition of "violent felony" and § 924(c)'s definition of "crime of violence." Section 924(c)(3) defines a "crime of violence" as an offense that is a federal felony and:

(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.

18 U.S.C. § 924(c)(3). For the purposes of this Memorandum Opinion, the court refers to § 924(c)(3)(A) as the "use-of-force clause" and § 924(c)(3)(B) as the "risk-of-force clause." See Ovalles v. United States, 861 F.3d 1257, 1263 (11th Cir. 2017) (explaining why courts use different shorthand in discussing the ACCA and § 924(c), despite the statutes' similar provisions).²

The ACCA's force clause is nearly identical to § 924(c)'s use-of-force clause. In fact, the Fourth Circuit has treated case law interpreting the ACCA force clause as equally applicable to § 924(c)' use-of-force clause. See In re Irby, 858 F.3d 231, 234-37 (4th Cir. 2017) (applying Johnson I and its progeny to § 924(c)'s use-of-force clause). Defendants contend that to be found guilty of the VICAR charges in the Superseding Indictment, thejury need not find that they used violent, physical force as required by Johnson I. They also argue that the risk-of-force clause is unconstitutionally vague, and therefore submit that the § 924(c) charges must be dismissed as failing to rely on qualifying predicates.

The ACCA's residual clause and § 924(c)'s risk-of-force clause are not textually identical. Compare 18 U.S.C. § 924(e)(2)(B)(ii) (covering "conduct that presents a serious potential risk of physical injury"), with 18 U.S.C. § 924(c)(3)(B) (covering conduct "that by its nature, involves a substantial risk that physical force ... may be used in the course of committing the offense"). Nevertheless, Brown and Dove contend that Johnson II renders the risk-of-force clause in § 924(c) constitutionally defective. Only the Seventh Circuit has taken the position that Johnson II invalidates § 924(c)(3)(B), see United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016),³ while four other Circuits have held that the risk-of-force clause is not unconstitutionally vague, see Ovalles v. United States, 861 F.3d 1257, 1263 (11th Cir. 2017); United States v. Prickett, 839 F.3d 697, 699-700 (8th Cir. 2016); United States v. Hill, 832 F.3d 135, 145-49 (2d Cir. 2016); United States v. Taylor, 814 F.3d 340, 376-79 (6th Cir. 2016). The Fourth Circuit will pass on the validity of § 924(c)'s risk-of-force clause in United States v. Simms, No. 15-4640 (appeal docketed Oct. 26, 2015). However, Simms is held in abeyance pending the Supreme Court's decision in Sessions v. Dimaya, 803F.3d 1110 (9th Cir. 2015), cert granted, 137 S.Ct. 31 (2016) (set for reargument on Monday, Oct. 2, 2017).⁴

As explained below, the court need not determine the validity of § 924(c)'s risk-of-force clause because the VICAR counts charged in the Superseding Indictment qualify as crimes of violence under the use-of-force clause. Accordingly, Brown's and Dove's § 924(c) charges will not be dismissed.

II.

To determine whether a crime requires the use, attempted use, or threatened use of violent force, courts generally apply the categorical approach. See Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). Under this approach, the court must "analyze only the elements of the offense in question, rather than the specific means by which the defendant committed the crime." United States v. Evans, 848 F.3d 242, 246 (4th Cir.), cert. denied, 137 S. Ct. 2253 (2017). The strict categorical approach applies where the predicate statute is indivisible, that is, where the statute "does not set out elements of the offense in the alternative, but which may nevertheless broadly criminalize qualitatively different categories of conduct." United States v. Royal, 731 F.3d 333, 340 (4th Cir. 2013).

"[I]n cases involving statutes that set out elements in the alternative and thus create multiple versions of the crime,' [courts] consider the statute divisible and apply the modified categorical approach." United States v. Diaz, No. 16-4226, 2017 WL 3159918, at *4 (4th Cir. July 26, 2017) (quoting United States v. Montes-Flores, 736 F.3d 357, 365 (4th Cir. 2013)). "[T]he modified approach serves—and serves solely—as a tool to identify the elements ofthe crime of conviction when a statute's disjunctive phrasing renders one (or more) of them opaque." Mathis, 136 S. Ct. at 2253.

In applying these principles, the court must examine Subsection (a) of the VICAR statute, which states in its entirety:

Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished-

(1) for murder, by death or life imprisonment, or a fine under this title, or both; and for kidnapping, by imprisonment for any term of years or for life, or a fine under this title, or both;

(2) for maiming, by imprisonment for not more than thirty years or a fine under this title, or both;

(3) for assault with a dangerous weapon or assault resulting in serious bodily injury, by imprisonment for not more than twenty years or a fine under this title, or both;

(4) for threatening to commit a crime of violence, by imprisonment for not more than five years or a fine under this title, or both;

(5) for attempting or conspiring to commit murder or kidnapping, by imprisonment for not more than ten years or a fine under this title, or both; and

(6) for attempting or conspiring to commit a crime involving maiming, assault with a dangerous weapon, or assault resulting in serious bodily injury, by imprisonment for not more than three years or a fine of under this title, or both.

18 U.S.C. § 1959(a). The government argues that the statute is divisible by numbered subsection. (Dove seemingly agrees with this approach.) Indeed, the Superseding Indictmentspecifically charges Brown and Dove with violating § 1959(a)(3), which proscribes "assault with a dangerous weapon or assault resulting in serious bodily injury"...