United States v. Smith

• Decision Date: 18 May 2016
• Docket Number: 2:11–cr–00058–JAD–CWH
• Parties: UNITED STATES of America, Plaintiff v. Phillip SMITH and Develle Rural Merritte, Defendants.
• Court: U.S. District Court — District of Nevada

215 F.Supp.3d 1026

UNITED STATES of America, Plaintiff
v.
Phillip SMITH and Develle Rural Merritte, Defendants.

2:11–cr–00058–JAD–CWH

United States District Court, D. Nevada.

Signed May 18, 2016

215 F.Supp.3d 1028

Nicholas D. Dickinson, Phillip N. Smith, Jr., U.S. Attorneys Office, Las Vegas, NV, for Plaintiff.

Bret O. Whipple, Law Office of Bret Whipple, Rebecca A. Rosenstein, Federal Public Defender, Las Vegas, NV, for Defendants.

Order Granting in Part and Denying in Part Motion to Dismiss

ECF Nos. 208, 220, 223, 224

Jennifer A. Dorsey, United States District Judge

Phillip Smith and Develle Merritte are accused of a series of 2010 armed robberies dubbed the "bandana robberies."¹ The superseding indictment charges them with robbery and conspiracy to commit robbery in violation of the Hobbs Act² and with using a firearm during these "crimes of violence"³ in violation of 28 U.S.C. § 924(c).

The defendants move to dismiss all of the § 924(c) counts,⁴ arguing that Hobbs Act robbery and conspiracy to commit Hobbs Act robbery do not qualify as crimes of violence under the force clause of § 924(c), and that § 924(c)'s residual clause is unconstitutionally vague in light of the Supreme Court's decision last term in Johnson v. United States.⁵ . Magistrate Judge Hoffman considered the motion and recommends that I deny it;⁶ defendants

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object.⁷ Having reviewed Magistrate Judge Hoffman's findings and conclusions de novo, I overrule in part and sustain in part defendants' objections, adopt Magistrate Judge Hoffman's findings and conclusions to the extent that they are consistent with this order, dismiss the § 924(c) charge predicated on conspiracy to commit robbery (count 2) because the residual clause of § 924(c) is unconstitutionally vague in light of the Ninth Circuit's recent decision in Dimaya v. Lynch ,⁸ and allow all other § 924(c) charges to proceed.

Background

A. The indictment

Smith is charged with one count of conspiracy to interfere with commerce by robbery in violation of the Hobbs Act (18 U.S.C. § 1951 ), one count of using a firearm in relation to that conspiracy in violation of 18 U.S.C. § 924(c)(1)(A)(ii), ten counts of Hobbs Act robbery, and ten counts of using a firearm in relation to those robberies, all for conduct between January 18, 2010, and April 27, 2010.⁹ Merritte is charged with those crimes plus one extra Hobbs Act robbery count for a May 15, 2010, Subway restaurant robbery and one extra § 924(c) charge for using a gun during that offense.¹⁰

The Hobbs Act, 18 U.S.C. § 1951(a), "prohibits any robbery or extortion or attempt or conspiracy to rob or extort that 'in any way or degree obstructs, delays or affects commerce or the movement of any article or commodity in commerce.' "¹¹ Title 18 U.S.C. § 924(c) separately criminalizes using or carrying a firearm in relation to a "crime of violence" and imposes mandatory, consecutive minimum sentences. Section 924(c) defines "crime of violence" in two ways. Section 924(c)(3)(A), also known as the statute's "force clause," includes a felony offense that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Section 924(c)(3)(B), known as the "residual clause" of the statute, encompasses any felony offense "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."

B. Motion to dismiss

During the last term in Johnson v. United States , the Supreme Court tested the constitutionality of the residual clause of another subsection of § 924 —§ 924(e), known as the Armed Career Criminal Act ("ACCA"). Under the ACCA, "a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a 'violent felony,' a term defined to include any felony that 'involves conduct that presents a serious potential risk of physical injury to another.' "¹² The High Court evaluated the clause's violent-felony definition using the "framework known as the categorical approach," which "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

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particular occasion.' "¹³ It concluded that "the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates," and held it void for vagueness.¹⁴

Relying heavily on Johnson , defendants move to dismiss all of the § 924(c) counts against them. They argue that Hobbs Act robbery and conspiracy to commit Hobbs Act robbery do not qualify as crimes of violence under § 924(c)'s force clause, and the government cannot rely on § 924(c)'s residual clause because it is unconstitutionally vague for the same reasons the Supreme Court struck down the ACCA's residual clause in Johnson.¹⁵

Central to defendants' argument is their contention that I must apply the "categorical approach" to determine whether Hobbs Act robbery qualifies as a crime of violence. Under the categorical approach, courts look only to the statutory elements of the offense and do not consider the defendants' conduct in a particular case.¹⁶ Defendants argue that, because Hobbs Act robbery does not require the use or threatened use of physical force, it does not qualify under § 924(c)'s force clause. And because the residual clause is unconstitutionally vague, Hobbs Act robbery cannot qualify under that prong either.

The government responds that I should apply the "modified categorical approach" instead because the Hobbs Act is a divisible statute.¹⁷ Under the modified categorical approach, the court may look beyond the statutory elements of the offense and consider the allegations in the indictment to determine if the charged offense is specifically a crime of violence.¹⁸ Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). And the government argues that, because this indictment contains allegations that defendants used force or threats of force during their robberies, those robberies qualify as crimes of violence under § 924(c)'s force clause. Finally, the government argues that I need not reach the constitutionality of § 924(c)'s residual clause because (1) Hobbs Act robbery and conspiracy to commit it qualify as crimes of violence under the force clause and (2) Johnson is distinguishable.¹⁹

C. Report and recommendation

Magistrate Judge Hoffman found that the categorical approach does not apply when evaluating the sufficiency of a § 924(c) indictment.²⁰ He reasoned that the categorical analyses are products of the ACCA, which is a statute applied by sentencing courts to determine whether a defendant's prior convictions qualify as crimes of violence; unlike the ACCA, § 924(c) is not a recidivist statute that requires courts to categorize prior convictions;²¹

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and case law applying these approaches outside of the sentencing context is scant.²² The magistrate judge found that, "[b]ecause the Hobbs Act robberies, as charged in this case, include as an essential element physical violence or a threat of physical violence," they qualify as crimes of violence under § 924(c)'s force clause.²³ He concluded: "[a] jury will be required in this case to determine whether the necessary elements have been established beyond a reasonable doubt. Therefore, § 924(c) does not implicate any of the problems that exist under the ACCA in having to reconstruct, long after an original conviction, the conduct underlying the predicate offense."²⁴

D. Defendants' objections

Defendants object that the categorical analyses do apply to pretrial § 924(c) crime-of-violence determinations,²⁵ and they note that the Fourth and Eleventh Circuits have applied the categorical analyses to § 924(c).²⁶ Finally, defendants reiterate their argument that § 924(c)'s residual clause is unconstitutionally vague under Johnson²⁷ and thus cannot support any § 924(c) charge.

Discussion

A. Standards of review

A district court reviews objections to a magistrate judge's proposed findings and recommendations de novo.²⁸ "The district judge may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions."²⁹ When ruling on a pretrial motion to dismiss an indictment, the district court is bound by the four corners of the indictment and must accept the allegations in the indictment as true.³⁰ "A motion to dismiss [an] indictment cannot be used as a device for a summary trial of the evidence," and the court "should not consider evidence not appearing on the face of the indictment."³¹ "The indictment either states an offense or it doesn't. There is no reason to conduct an evidentiary...