United States v. Milton
| Decision Date | 20 April 2021 |
| Docket Number | Case No. 5:95-CR-70074 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | UNITED STATES OF AMERICA v. GREGORY A. MILTON, Defendant |
MEMORANDUM OPINION
On June 13, 1996, a jury found defendant Gregory A. Milton guilty of three crimes: conspiracy to distribute crack cocaine in violation of 21 U.S.C. § 841 (Count One), Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Count Three), and use of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) (Count Four). On October 31, 1996, the court sentenced Milton to life imprisonment on Counts One and Three and a consecutive term of life imprisonment on Count Four. These convictions arose out of the drug related robbery and murder of Ian Byron-Cox on March 13, 1995. Third Superseding Indictment, ECF No. 94-1.
Milton was unsuccessful in challenging his conviction on appeal and in his first petition under 28 U.S.C. § 2255, but was granted authorization to file a second or successive § 2255 petition by the Fourth Circuit Court of Appeals on July 14, 2016 following the Supreme Court's decisions in Johnson v. United States, 576 U.S. 591 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016). Milton's subsequent § 2255 petition was stayed for a period of time as the case law following Johnson applicable to convictions under § 924(c) developed.
Milton challenges his life sentences, arguing that the evolution of the law invalidates his conviction and the consecutive life sentence imposed for the § 924(c) violation in Count Four and the mandatory sentence of life imprisonment for violation of the Hobbs Act in Count Three. As to Count Four, Milton argues that he cannot be guilty of use of a firearm in furtherance of a crime of violence because the Hobbs Act robbery charged in Count Three no longer categorically qualifies as a crime of violence following United States v. Davis, 139 S. Ct. 2319 (2019), United States v. Simms, 914 F.3d 229 (4th Cir. 2019), and United States v. Taylor, 979 F.3d 203 (4th Cir. 2020). As regards Count Three, Milton argues that the enhancement to mandatory life imprisonment no longer applies because Hobbs Act robbery does not categorically qualify as a serious violent felony under 18 U.S.C. § 3559(c)(2)(F). While the government at one point agreed with Milton that Count Four must fall, it now argues that the petition be denied in its entirety, focusing on the fact that Count Four of the Third Superseding Indictment expressly alleges actual robbery in violation of the Hobbs Act as opposed to conspiracy or attempt to violate the Hobbs Act.1
As to the § 924(c) conviction on Count Four, on balance, and applying the modified categorical approach, the court is convinced that Milton was convicted of actual Hobbs Act robbery, as opposed to attempt or conspiracy. As explained herein, the principal reason for this conclusion is that the jury was not instructed on attempt or conspiracy to violate the Hobbs Act, and was told that in order to convict on Count Three the government must proveactual robbery, i.e., "that the defendant took the property from Ian Byron-Cox by force or violence." Jury Instructions, ECF No. 398-5, at 76. In short, as the jury was only instructed on actual Hobbs Act robbery, the court is required to conclude that Milton was convicted of that offense. As Hobbs Act robbery categorically remains a crime of violence for § 924(c) purposes, the court may not set aside his conviction on Count Four. As "firearms possession (as described in section 924(c))" is an enumerated offense meeting the definition of a "serious violent felony" for the purposes of the mandatory life imprisonment enhancement in 18 U.S.C. § 3559(c)(1), Milton's life sentence on Count Four remains mandatory.
As to the Hobbs Act robbery conviction on Count Three, however, the court is required to set aside Milton's life sentence. Because the Hobbs Act makes it illegal to affect commerce by robbery of a person or property, it is categorically broader than the definition of a "serious violent felony" in 18 U.S.C. § 3559(c)(2)(F). As such, the mandatory life sentence imposed for Count Three must be vacated. Milton will be resentenced to a 20-year term of imprisonment on Count Three.
Next, Milton challenges the life sentence imposed on Count One under the First Step Act. Milton is eligible for relief under the First Step Act, and the court will reduce his sentence on Count One to 20 years, to run concurrent with the 20-year sentence on Count Three. The life sentence on Count Four must run consecutive to the sentences on Counts One and Three.
Milton also seeks to bring an actual innocence claim. However, because he cannot meet the threshold requirements of 28 U.S.C. § 2244(b)(2), he is not entitled to bring the claim in this successive § 2255 motion and the claim is dismissed.
18 U.S.C. § 924(c)(1)(A) provides that a person who uses or carries a firearm "during and in relation to any crime of violence or drug trafficking crime" or possesses a firearm "in furtherance of any such crime" may be convicted both for the underlying predicate crime and utilizing a firearm in connection with such crime of violence or drug trafficking crime.2 The statute defines a "crime of violence" 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." 18 U.S.C. § 924(c)(3). The first part of the crime of violence definition is referred to as the force (or elements) clause, and the second part is known as the residual clause.
Following Johnson's legacy, in United States v. Davis, the Supreme Court held that the residual clause in 18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague. 139 S. Ct. at 2336. The Fourth Circuit recently ruled that "Davis announced a new substantive rule of constitutional law that has been made retroactive to cases on collateral review by the Supreme Court and was previously unavailable." In re Thomas, 988 F. 3d 783, 790 (4th Cir. 2021).
Since Davis was decided, the Fourth Circuit has issued three opinions on the question whether Hobbs Act robbery qualifies as a crime of violence under the force clause of § 924(c)(3)(A). In United States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019), the court "conclude[d] that Hobbs Act robbery constitutes a crime of violence under the force clauseof Section 924(c)." While an actual Hobbs Act robbery qualifies as a crime of violence, the Fourth Circuit has held that conspiracy to commit Hobbs Act robbery does not qualify as a crime of violence under the force clause in § 924(c)(3)(A), reasoning that a conspiracy, an illegal agreement, "does not invariably require the actual, attempted, or threatened use of physical force." Simms, 914 F.3d at 234. In similar fashion, the Fourth Circuit recently held "that attempted Hobbs Act robbery is not 'categorically' a 'crime of violence.'" Taylor, 979 F. 3d at 210.
The Hobbs Act, 18 U.S.C. § 1951, makes it unlawful to interfere with commerce by threats or violence. It provides:
Count Three of the Third Superseding Indictment makes it clear that Milton was charged with actual Hobbs Act robbery. Count Three states that Milton and codefendants Derek Yancy and John Waller:
[A]s principals and/or aiders and abettors, did unlawfully obstruct, delay and affect, and attempt and conspire to obstruct, delay and affect commerce as that term is defined in Title 18, United States Code, Section 1951, and the movement of articles and commodities in such commerce, by robbery as that term is defined in Title 18, United States Code, Section 1951, in that the defendants Gregory A. Milton and Derek Yancy did unlawfully take and obtain personal property consisting of monies, clothing, a telephone and other items from the person and in the presence of Ian Byron-Cox, against his will by means of actual and threatened force, violence, and fear of injury, immediate and future, to his person and the person of another.
ECF No. 94-1, at 4. While Count Three plainly charges actual Hobbs Act robbery, it also charges that Milton and others did "attempt and conspire to obstruct, delay and affect commerce . . . by robbery." Id.
Count Four charges that Milton and others "as principals and/or aiders and abettors, during and in relation to a crime of violence for which they may be prosecuted in a Court of the United States, that is robbery under Title 18, United States Code, Section 1951, knowingly used and carried a firearm." Id. at 5. Count Four continues that in the course of his violation, Ian Byron-Cox was murdered. Although the text of Count Four does not reference attempt or conspiracy to commit Hobbs Act robbery, the first paragraph of Count Four notes that "Count Three of this Indictment is fully realleged and incorporated into this Count Four of the Indictment." Id.
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