United States v. Moreno-Aguilar
| Decision Date | 02 August 2016 |
| Docket Number | Case No. RWT 13-cr-0496 |
| Parties | UNITED STATES of America v. Jorge Enrique MORENO-AGUILAR, et al. |
| Court | U.S. District Court — District of Maryland |
Kevin Louis Rosenberg, William Davis Moomau, Office of the United States Attorney, Greenbelt, MD, Rod J. Rosenstein, Office of the United States Attorney, Baltimore, MD, for United States of America.
This opinion represents the latest installment in the continuing struggle of circuit and district courts to sort out the question of what constitutes a "crime of violence" under 18 U.S.C. § 924(c) in the wake of the decision of the Supreme Court in Johnson v. United States , –––U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which found unconstitutional the "residual clause" definition of "violent felony" in 18 U.S.C. § 924(e)(2)(B), part of the Armed Career Criminal Act ("ACCA") of 1984.
Here, the issue arises in the context of a fourteen-Defendant case, in which all Defendants are charged with a RICO murder conspiracy involving the MS-13 gang. The case was divided into trial groups, the first group consisting of four Defendants. ECF No. 287. Two of these Defendants, Jorge Enrique Moreno-Aguilar and Juan Alberto Ortiz-Orellana, are charged in Count Nine with the use, carrying, brandishing and discharge of a firearm during and in relation to a "crime of violence" in violation of 18 U.S.C. § 924(c)(1)(A)(iii), and in Count Ten with murder resulting from the use, carrying, brandishing, and discharging of a firearm during and in relation to a "crime of violence" in violation of 18 U.S.C. § 924(j). ECF No. 313. Both of these Defendants have moved to dismiss these counts, contending that the underlying crimes do not qualify as "crimes of violence" in light of the Supreme Court's ruling in Johnson . ECF Nos. 285, 286.1
Count Nine specifies that the underlying crime of violence is murder in aid of racketeering, charged in Count Eight, in violation of 18 U.S.C. § 1959(a)(1) ; Maryland Code, Criminal Law §§ 2–201 and 2–204 ; and the common law of Maryland. ECF No. 131 at 46. For Count Ten, the underlying crime of violence is that, Id. at 47.
The issue in this case is whether the murder statutes under which Defendants are charged prohibit crimes of violence as defined by § 924(c), either under its "force clause" or its "residual clause." It is a seemingly simple question that, after a tortured and complicated journey—and in a triumph of common sense—will here be answered "yes."
As in Johnson , both Counts at issue here are brought under 18 U.S.C. § 924, a section with seemingly endless subsections and sub-subsections. To the uninitiated, it is a daunting task to read.
Johnson concerned subsection (e) of § 924, part of the ACCA. Subsection (e) defines "violent felony." By contrast, subsection (c) defines "crime of violence." Drilling down further, both definitional subsections contain identical sub-subsections commonly referred to as "force clauses." Beyond the force clauses, however, the similarities end. While both (c)(3) and (e)(2)(B) have an additional sub-subsection, the language in them is quite different. To compare:
The term "violent felony" means any crime punishable by imprisonment for a term
exceeding one year, or any act of juvenile delinquency involving the use or
18 U.S.C. carrying of a firearm, knife, or destructive device that would be punishable by
§ 924(e)(2)(B) imprisonment for such term if committed by an adult, that —
(i) has as an element the use, attempted use, or threatened use of
(emphasis added) 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
For purposes of this subsection the term "crime of violence" means an offense that
is a felony and —
18 U.S.C. (A) has as an element the use, attempted use, or threatened use of physical force
§ 924(c)(3) against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against
(emphasis added) the person or property of another may be used in the course of committing
the offense
Table 1. 18 U.S.C. § 924(e)(2)(B) and 18 U.S.C. § 924(c)(3)
These distinctions are crucial in determining whether the holding in Johnson reaches § 924(c)(3), but less crucial in determining whether the offenses charged in this case survive. Critically, at issue in Johnson was the specific language in 18 U.S.C. § 924(e)(2)(B)(ii), "or otherwise involves conduct that presents a serious potential risk of physical injury to another," also known as the residual clause. Johnson left unscathed 18 U.S.C. § 924(e)(2)(B)(i), also known as the force clause. Thus, if the murder statutes at issue in this case qualify as crimes of violence under 18 U.S.C. § 924(c)(3)(A), an identical force clause, Johnson 's holding is irrelevant. For the reasons discussed infra , the Court holds precisely this.
The underlying murder statutes supporting Counts Nine and Ten easily qualify as crimes of violence under the force clause. Murder historically has served as a predicate offense for innumerable federal prosecutions under the force clause of 18 U.S.C. § 924(c). The Court has not found any decision holding that murder cannot serve as a predicate offense under the force clause of 18 U.S.C. § 924(c). This Court does not intend to be the first.
To determine whether an offense is a "crime of violence" under 18 U.S.C. § 924(c)(3), courts use the "categorical approach" established in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Fuertes , 805 F.3d at 498. The categorical approach applies where the predicate statute contains a single set of indivisible elements that must be proved beyond a reasonable doubt. Descamps v. United States , –––U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Courts must "compare the elements of the statute forming the basis of the defendant's [charge or] conviction with the elements of the "generic" crime—i.e., the offense as commonly understood." Id.
In this Circuit, if the "most innocent" conduct proscribed by the predicate statute does not fall within either the force clause or the residual clause, then the offense categorically is not a crime of violence regardless of whether the facts of a particular case involve violent conduct. See United States v. Naughton , 621 Fed.Appx. 170, 178 (4th Cir.2015), cert. denied , ––– U.S. ––––, 136 S.Ct. 1393, 194 L.Ed.2d 372 (2016). The key is elements, not facts. Descamps , 133 S.Ct. at 2281 (citing Taylor , 495 U.S. at 599, 110 S.Ct. 2143 ).
The force clause of § 924(c)(3) defines a "crime of violence" as an offense that is a felony and "has as an element the use, attempted use or threatened use of physical force against the person or property of another." Id. (emphasis added). The underlying "crimes of violence" with which Defendants are charged are: (1) murder in aid of racketeering (VICAR murder), charged in Count Eight, in violation of 18 U.S.C. § 1959(a)(1) ; Maryland Code, Criminal Law §§ 2–201 and 2–204 ; and the common law of Maryland, ECF No. 313 at 46; and (2) Id. at 47. Thus, the three potential "crimes of violence" are defined in 18 U.S.C. § 1111, Md. Code Ann., Crim. Law §§ 2–201 and 2–204, and the common law of Maryland.
Md. Code Ann., Crim. Law § 2–201 states, in relevant part:
Md. Code Ann., Crim. Law § 2–204 states, in relevant part: "A murder that is not in the first degree under § 2–201 of this subtitle is in the second degree." Maryland common law defines murder as "the unlawful killing of one person by another, done with malice aforethought." Newton v. State , 280 Md. 260, 274–76, 373 A.2d 262, 270 (1977). Similarly, 18 U.S.C. § 1111 defines murder as "the unlawful killing of a human being with malice aforethought" and includes "[e]very murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing" as first degree murder.
Defendants argue that because Md. Code Ann., Crim. Law § 2–201 includes murder by poison, the Fourth Circuit's decision in United States v. Torres – Miguel , 701 F.3d 165 (4th Cir.2012), mandates a conclusion that murder cannot be a crime of violence because the statute's elements are broader than the "generic" crime. ECF No. 286 at 7. This Court disagrees.
In Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (hereinafter " Johnson 2010 "), the Supreme Court held that "physical force," for the purposes of the ACCA's identical force clause, means violent force, "that is, force capable of causing physical pain or injury to another person." Id. at 140, 130 S.Ct. 1265. Earlier, the Supreme Court found in Leocal v....
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