United States v. Vinson

• Court: U.S. District Court — Eastern District of North Carolina
• Writing for the Court: LOUISE W. FLANAGAN
• Decision Date: 27 December 2013
• Docket Number: NO. 5:13-CR-121-FL,5:13-CR-121-FL
• Citation: United States v. Vinson, NO. 5:13-CR-121-FL (E.D. N.C. Dec 27, 2013)
• Parties: UNITED STATES OF AMERICA, v. RODNEY MARSHALL VINSON, Defendant.

UNITED STATES OF AMERICA, v. RODNEY MARSHALL VINSON, Defendant.

NO. 5:13-CR-121-FL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

SO ORDERED: December 27, 2013

ORDER

This matter comes before the court on defendant's motion to dismiss the indictment against him pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B) for failure to state an offense (DE 27). The matter has been fully briefed and is now ripe for decision. For the reasons that follow, defendant's motion will be granted.

BACKGROUND

On April 23, 2013, a federal grand jury returned a one-count indictment against defendant for violation of 18 U.S.C. §§ 922(g)(9) and 924, which proscribe possession in or affecting commerce, any firearm or ammunition, by a person convicted in any court of a "misdemeanor crime of domestic violence." The indictment states as a predicate offense that defendant was convicted in state court in 2004 of assault on a female, in violation of N.C. GEN. STAT. § 14-33(c)(2) ("state conviction").

At defendant's detention hearing held on May 21, 2013, defendant raised the issue as to whether the state conviction could serve as a predicate misdemeanor crime of domestic violence for purposes of violation of 18 U.S.C. § 922(g)(9). On May 30, 2013, the court granted defendant's motion for extension of time to file pre-trial motions and to continue arraignment pending decisionin United States v. Descamps, 466 F. App'x 563 (9th Cir.), cert. granted in part, ___ U.S. ___, 133 S.Ct. 90 (2012) (mem).

On June 20, 2013, the Supreme Court issued its opinion in Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (2013). On July 26, 2013, the court granted defendant's motion for leave to re-open the pre-trial motions period and file a motion to dismiss. Defendant filed the instant motion to dismiss pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B) for failure to state an offense. Defendant argues his state conviction cannot serve as a predicate misdemeanor crime of domestic violence for purposes of 18 U.S.C. § 922(g)(9), citing Descamps, 133 S.Ct. 2276, as support. Arraignment has been continued pending resolution of the instant motion.

DISCUSSION

A. Standard of Review

At any time before trial, defendants can raise a motion alleging a defect in the indictment. Fed. R. Crim. P. 12(b)(3)(B). In addition, "at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense." Id. To warrant dismissal of a count of the indictment, a defendant must "demonstrate that the allegations therein, even if true, would not state an offense." United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004). "It is elementary that a motion to dismiss an indictment implicates only the legal sufficiency of its allegations, not the proof offered by the Government." United States v. Terry, 257 F.3d 366, 371 (4th Cir. 2001) (King, J., concurring).

B. Legal Framework

1. Categorical Approach

The Supreme Court established the so-called "categorical approach" to determine whether a prior conviction constitutes a predicate offense for application of a sentencing enhancement underthe Armed Career Criminal Act, § 924(e) ("ACCA"). See Taylor v. United States, 495 U.S. 575, 602 (1990). The categorical approach requires federal courts to compare the elements of a prior crime of conviction with a generic crime in an enhancement statute to determine if the enhancement is applicable. Descamps, 133 S.Ct. at 2281.

If the elements in the prior crime of conviction are the same as or defined more narrowly than the generic crime, then the prior crime of conviction can serve as a predicate for the generic crime. See id. at 2283. However, if the prior crime of conviction is defined more broadly than the generic crime, then the prior crime of conviction cannot serve as a predicate, "even if the defendant actually committed the offense in its generic form." Id. The categorical approach proscribes inquiry into the facts underlying a conviction, and federal courts may "look only to the fact of conviction and the statutory definition of the prior offense." Taylor, 495 U.S. at 602; see also Descamps, 133 S.Ct. at 2283.

The Fourth Circuit has extended use of the categorical approach to situations such as those in the instant case where a defendant's prior conviction serves as a potential predicate for a current charge. In particular, in United States v. White, 606 F.3d 144, 145-53 (4th Cir. 2010), the court applied the categorical approach in determining that the Virginia common law offense of assault and battery against a family or household member could not serve as predicate for the offense of possession of a firearm by a person that has been convicted of a misdemeanor crime of domestic violence under § 922(g)(9).

2. Modified Categorical Approach

In Taylor, the Supreme Court "recognized 'a narrow range of cases' in which sentencing courts — applying what [the Supreme Court] would later dub the 'modified categorical approach' — may look beyond the statutory elements to" other documents "to determine which of a statute'salternative elements formed the basis of the defendant's prior conviction." Descamps, 133 S.Ct. at 2283-84. Under the modified categorical approach, the court "is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Shepard v. United States, 544 U.S. 13, 16 (2005).

The Supreme Court recently confirmed "the modified categorical approach serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction." Descamps, 133 S.Ct. at 2283. A divisible statute "sets out one or more elements of the offense in the alternative — for example, stating that burglary involves entry into a building or an automobile." Id. at 2281. "By 'elements,' the Court meant factual circumstances of the offense that the jury must find unanimously and beyond a reasonable doubt." United States v. Royal, 731 F.3d 333, 341 (4th Cir. 2013) (internal quotation marks omitted). Alternative methods of committing an offense do not constitute alternative elements to justify use of the modified categorical approach. See Descamps, 133 S.Ct. at 2285 n.2; United States v. Hemingway, 734 F.3d 323, 334 (4th Cir. 2013).

The Court further described the modified categorical approach as

retain[ing] the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach's basic method: comparing those elements [of the prior offense of conviction] with the generic offense's. All the modified approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates "several different . . . crimes." If at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of. That is the job, as we have always understood it, of the modified approach: to identify, from among several alternatives, the crime of conviction so that the court can compare it to the generic offense.

Descamps, 133 S.Ct. at 2285 (citation omitted).

3. Offenses Charged in Current Indictment

Defendant has been charged with violation of 18 U.S.C. §§ 922(g)(9) and 924. Section 922(g)(9) makes it unlawful for "any person who has been convicted in any court of a misdemeanor crime of domestic violence, to . . . possess in or affecting commerce, any firearm or ammunition." A "misdemeanor crime of domestic violence" is defined in § 921(a)(33)(A) as "a misdemeanor under Federal, State, or Tribal law" that

has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

18 U.S.C. § 921(a)(33)(A)(i)-(ii) (emphasis added). Therefore, defendant's state conviction must have, as an element, either the use or attempted use of physical force, or the threatened use of a deadly weapon for defendant to be convicted under § 922(g)(9).

Neither party has alleged that the state offense of conviction here has, as an element, the threatened use of a deadly weapon. As a result, the court's analysis will be limited to the issue of whether the state offense of conviction has, as an element, the use or attempted use of physical force.

In Johnson v. United States, 559 U.S. 133, 140 (2010), the Supreme Court interpreted "physical force" for sentencing purposes under ACCA to "mean[] violent force — that is, force capable of causing physical pain or injury to another person." The Fourth Circuit has applied that meaning of "physical force" to the definition of "misdemeanor crime of domestic violence." White, 606 F.3d at 153. Furthermore, the Fourth Circuit has interpreted Johnson as "reject[ing] the Government's argument that de minimis force, as in an offensive touching without injury in battery,could be construed as 'physical force.'" Id. at 152. Therefore, defendant must be convicted of a predicate crime of domestic violence that involved the use or attempted use of "violent force," meaning "force capable of causing physical pain or injury to another person" to be convicted under § 922(g)(9). Johnson, 559 U.S. at 140.

4. Predicate State Law Offense

Defendant's state conviction was for violation of N.C. GEN. STAT. § 14-33(c)(2), which states, "any person who commits any assault, assault...