United States v. McDaniels

• Decision Date: 23 November 2015
• Docket Number: Case No. 1:15-cr-171
• Citation: 147 F.Supp.3d 427
• Parties: United States of America, v. Emmanuel Purcell McDaniels, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

147 F.Supp.3d 427

United States of America,

v.Emmanuel Purcell McDaniels, Defendant.

Case No. 1:15-cr-171

United States District Court, E.D. Virginia, Alexandria Division .

Signed November 23, 2015

Patricia T. Giles, United States Attorney's Office, Alexandria, VA, for Plaintiff.

Bruce A. Johnson, Jr., Bowie, MD, for Defendant.

MEMORANDUM OPINION

T. S. Ellis, III

, United States District Judge

A five-count superseding indictment has issued charging defendant with: (i) one count of conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a)

: (ii) two counts of Hobbs Act robbery, 18 U.S.C. § 1951(a) ; and (iii) two counts of using, carrying, and brandishing a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii). At issue on this pre-trial motion to dismiss two counts of the superseding indictment is whether Hobbs Act robbery qualifies as a predicate crime of violence for § 924(c)(1)(A) pursuant to the definition of “crime of violence” set forth in § 924(c)(3). The matter has been fully briefed and argued and, for the reasons stated from the bench, an Order issued denying defendant's motion to dismiss in all respects. United States v. McDaniels , 1:15-cr-177 (Sept. 18, 2015) (Order) (Doc. 50). This memorandum opinion records and elucidates the reasons for denying defendant's motion to dismiss, addressing specifically the following issues:

(1) Whether the categorical approach applies to a motion to dismiss a § 924(c)

count of an indictment on the ground that a Hobbs Act robbery—the predicate offense for the § 924(c) violation—is not categorically a crime of violence.

(2) Assuming the categorical approach applies, whether Hobbs Act robbery qualifies as a crime of violence pursuant to the “Force Clause” of § 924(c)(3)(A).

(3) Whether the “Residual Clause” of § 924(c)(3) is unconstitutionally vague, and hence cannot serve as a basis for the conclusion that a Hobbs Act robbery qualifies as a § 924(c) crime of violence.

I.

The pertinent facts as set forth in the superseding indictment may be succinctly summarized. On or about February 13, 2015, defendant and two co-conspirators robbed a McDonald's in Arlington, Virginia. One co-conspirator served as the getaway driver, and defendant and his co-conspirator entered the McDonald's wearing masks and wielding firearms. One of the gunmen jumped the counter, pointed his gun at employees and demanded money from the cash registers and the safe. At the same time, the other gunman ordered patrons at the front of the store not to move. After obtaining approximately $2,221.00 in cash from the restaurant's employees, the men fled the restaurant, entered a black Toyota, and left the area.

On or about March 6, 2015, at approximately 5:49 p.m., defendant and a co-conspirator robbed a Radio Shack in Arlington, Virginia. Store surveillance cameras captured the events of the robbery. At approximately 5:49 p.m., defendant, wearing a mask and carrying a red backpack, entered the store and brandished a handgun, demanding that the store clerk to give him the money from the register. After the clerk relinquished $393.00 in cash, defendant fled out the store's front door, entered a waiting Toyota Avalon driven by his co-conspirator, and the pair then left the area.

On August 4, 2015, a grand jury returned a superseding indictment charging defendant with: (i) conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a)

; (ii) two counts of Hobbs Act robbery, 18 U.S.C. § 1951(a) ; and (ii) two counts of using, carrying, and brandishing a firearm, 18 U.S.C. § 924(c)(1)(A)(ii).

Defendant moved to dismiss the two § 924(c)(1)(A)(ii)

counts on the ground that Hobbs Act robbery cannot qualify as a predicate crime of violence for § 924(c) pursuant to the definition of “crime of violence” set forth in § 924(c)(3). On September 18, 2015, an Order issued denying defendant's motion to dismiss in all respects. McDaniels , 1:15-cr-177 (E.D. Va. Sept. 18, 2015) (Order) (Doc. 50).

II.

Pursuant to § 924(c)

, a defendant who “during and in relation to any crime of violence ... uses or carries a firearm ... shall, in addition to the punishment provided for such crime of violence ... if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years.” 18 U.S.C. § 924(c)(1)(A)(ii). In order to prove a violation of § 924(c)(1)(A)(ii), “the [g]overnment must prove: (1) the defendant possessed and brandished a firearm; and (2) he did so during and in relation to a crime of violence.” United States v. Jenkins , No. 15–4135, 628 Fed.Appx. 840, 842, 2015 WL 6121552, at *1 (4th Cir. Oct. 19, 2015) (citing United States v. Strayhorn , 743 F.3d 917, 922 (4th Cir.2014) ). The statute defines “crime of violence” as any felony:

(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)

. Subsection (A) and subsection (B) are commonly referred to as the “Force Clause” and the “Residual Clause” respectively. At issue here is whether Hobbs Act robbery¹ qualifies as a “crime of violence” under either the Force Clause or the Residual Clause of § 924(c)(3).

III.

Analysis properly begins by considering whether the “categorical approach,” as developed in Taylor v. United States , 495 U.S. 575, 598–602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

, applies when determining, on a pre-trial motion to dismiss, whether an offense qualifies as a crime of violence under § 924(c). If the categorical approach applies, then it must be determined whether Hobbs Act robbery categorically meets the definition of “crime of violence” set forth in § 924(c)(3). If the categorical approach does not apply, then the question whether Hobbs Act robbery qualifies as a § 924(c) crime of violence depends on the facts of this particular case, and because “crime of violence” is an element of the § 924(c) offense, the question must be must be submitted to a jury, which must then determine on the basis of the evidence presented whether the government has proven beyond a reasonable doubt that the robbery was a crime of violence pursuant to § 924(c).

To begin with, it is important to recognize that the categorical approach is a judicially devised mode of analysis born and developed in the sentencing context for the purpose of ensuring that defendants are not punished for facts that are not found beyond a reasonable doubt by a jury. In Taylor

, the Supreme Court elucidated this point. There the Supreme Court held that a sentencing court must take a “categorical approach” in determining whether a crime counts as a predicate offense for purposes of an Armed Career Criminal Act (“ACCA”) sentencing enhancement. 495 U.S. at 600, 110 S.Ct. 2143. Specifically, Taylor teaches that a sentencing court may “ 'look only to the statutory definitions'—i.e. , the elements—of a defendant's [offense] and not 'to the particular facts underlying [the offense]” in determining whether the offense qualifies as a “crime of violence” for purposes of a sentencing enhancement. Descamps v. United States , –––U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013) (quoting Taylor , 495 U.S. at 600, 110 S.Ct. 2143 ).² Put differently, “a court assesses whether a crime qualifies as a violent felony in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015) (internal quotation marks and citation omitted).³ The Supreme Court in Taylor justified the categorical approach in the context of ACCA sentencing enhancements on the basis of statutory text, legislative history, and practical considerations involving the difficulty of re-trying the factual basis for a prior conviction in subsequent sentencing proceedings. See Taylor , 295 U.S. at 600–02, 55 S.Ct. 854

. Since Taylor, the Supreme Court and the Fourth Circuit have consistently applied the categorical approach to numerous ACCA sentencing enhancement determinations.⁴

Until very recently, the categorical approach was limited to the sentencing context. Yet, in 2015, the Fourth Circuit, for the first time, applied the categorical approach in a context other than sentencing. Specifically, the Fourth Circuit applied the categorical approach in two recent cases involving post-trial determinations as to whether sex trafficking by force, fraud, or coercion qualified as a § 924(c)

crime of violence. See

United States v. Naughton , No. 13–4816, 621 Fed.Appx. 170, 177–78, 2015 WL 5147399, at *7 (4th Cir. Sept. 2, 2015) ; United States v. Fuertes , 805 F.3d 485, 499 (4th Cir.2015). The Fourth Circuit in Fuertes reasoned that the sex trafficking offense “allows for both violent and nonviolent means of commission,” and therefore does not qualify as a § 924(c) crime of violence under the categorical approach. 805 F.3d at 499. Similarly, in Naughton, the Fourth Circuit, again citing the categorical approach and relying on the reasoning of Fuertes, held that the district court's determination that a sex trafficking conspiracy offense was a § 924(c) crime of violence amounted to plain error. 621 Fed.Appx. at 177–78, 2015 WL 5147399, at *7.

Defendant argues that because the Fourth Circuit applied the categorical approach in Fuertes

and Naughton, it follows that the categorical approach must be applied to all determinations as to whether a crime qualifies as a § 924(c) crime of violence, even where, as here, the question arises not in the sentencing context, but on a pre-trial motion to dismiss counts of an indictment. Yet, a close reading of Naughton and Fuertes points persuasively to the conclusion that the categorical approach does not apply to pre-trial determinations as to whether a crime qualifies as a ...