United States v. Williams

• Decision Date: 15 April 2016
• Docket Number: 2:15-cr-00069-JDL
• Citation: 179 F.Supp.3d 141
• Parties: United States of America v. Kourtney Williams, Victor Lara, Jr., and Ishmael Douglas, Defendants.
• Court: U.S. District Court — District of Maine

179 F.Supp.3d 141

United States of America

v.Kourtney Williams, Victor Lara, Jr., and Ishmael Douglas, Defendants.

2:15-cr-00069-JDL

United States District Court, D. Maine.

Signed April 15, 2016

Darcie N. McElwee, U.S. Attorney's Office, Portland, ME, for United States of America.

Jeffrey W. Langholtz, Biddeford, ME, Luke Rioux, RDCP Lawyers, J. Hilary Billings, Federal Defender's Office, Portland, ME, for Defendants.

ORDER ON DEFENDANTS' MOTIONS TO DISMISS A PORTION OF THE INDICTMENT

JON D. LEVY, UNITED STATES DISTRICT JUDGE

Ishmael Douglas moves to dismiss a portion of Count Six of the Indictment for failure to state an offense. ECF No. 112. Specifically, Douglas seeks to dismiss the allegation that he knowingly used, carried, and brandished a firearm during and in relation to a crime of violence. Id. Count Six as a whole alleges that Douglas knowingly used, carried, and brandished a firearm during and in relation to a drug trafficking crime and a crime of violence for which he may be prosecuted in a court of the United States, namely, the offenses alleged in Counts One and Two of the Indictment, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). ECF No. 25 at 4-5. Count One charges Douglas, along with codefendants Kourtney Williams and Victor Lara, Jr., with conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 846. Id. at 1. Count Two charges Douglas, Williams, and Lara with conspiracy to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a). Id. at 1-2.

Williams has moved to join Douglas' motion (ECF No. 149), seeking to dismiss the portion of Count Four that alleges that Williams knowingly used, carried, and brandished a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). ECF No. 25 at 3. A hearing was held on December 4, 2015, on Douglas' and Williams' motions. ECF No. 151. Subsequent to the hearing, Lara moved to join Douglas' motion (ECF No. 155), seeking to dismiss the portion of Count Seven that alleges that Lara knowingly used firearms during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). ECF No. 25 at 5. For the reasons discussed below, I deny the defendants' motions.

I. LEGAL ANALYSIS

Douglas argues that the portion of Count Six that he seeks to dismiss fails to state an offense, for two reasons: (1) the predicate crime of violence, conspiracy to commit a Hobbs Act robbery charged in Count Two, does not qualify categorically as a “crime of violence” under 18 U.S.C. § 924(c)(3), and (2) given the recent decision in Samuel Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the “residual clause,” § 924(c)(3)(B), is unconstitutionally vague. ECF No. 112 at 1-2.

Subsection 924(c)(3) defines the term “crime of violence” as:

an offense that is a felony and—

(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.A. § 924(c)(3) (2015).

As Count Six¹ identifies the offense charged in Count Two as the predicate crime of violence for the charge of use of a firearm during and in relation to a drug trafficking crime or a crime of violence, see ECF No. 25 at 4-5, the question presented is whether conspiracy to commit a Hobbs Act robbery qualifies as a “crime of violence” under one of the two definitions in 18 U.S.C.A. § 924(c)(3). I first address the issue of whether the predicate offense qualifies as a “crime of violence” as defined in § 924(c)(3)(A), which I refer to as the “force clause,” and then turn to the question of whether the definition of “crime of violence” in § 924(c)(3)(B), the “residual clause,” is unconstitutionally vague and therefore void.

A. Whether a Hobbs Act Violation Qualifies as a “Crime of Violence” under § 924(c)(3)(A) (“Force Clause”)

Douglas contends that a Hobbs Act robbery does not qualify as a “crime of violence” under the “force clause,” § 924(c)(3)(A), because it does not “[have] as an element the use, attempted use, or threatened use of physical force against the person or property of another[.]” He advances three reasons in support: (1) one of the ways in which a Hobbs Act robbery can be committed is by placing another in fear of injury, which does not require “the use, attempted use, or threatened use of physical force” against another; (2) placing another in fear of injury does not require an intentional threat of physical force; and (3) Count Two of the Indictment charges him with conspiracy to commit a Hobbs Act robbery, and the elements of conspiracy do not include the use, attempted use, or threatened use of physical force against the person or property of another. ECF No. 112.

The Government argues that a Hobbs Act robbery qualifies as a “crime of violence” under the “force clause” because, to prove the offense, the Government must establish that the defendant knowingly and willfully obtained property from the person or corporation robbed by means of robbery. ECF No. 120 at 3. As such, the Government asserts, a Hobbs Act robbery involves “unlawfully taking or obtaining personal property from another, against his or her will, by means of actual or threatened force, or violence, or fear of injury to his or her person or property, or property in his or her custody or possession ....” Id. at 3–4 (quoting First Circuit Pattern Jury Instructions at 4.18.1951 (2014)).

Before addressing these arguments, I note that Hobbs Act robbery has previously been treated by the First Circuit as serving as the predicate “crime of violence” for a § 924(c) charge. See, e.g., United States v. Morales – Machuca , 546 F.3d 13, 18, 21–22 (1st Cir.2008) (affirming conviction under 18 U.S.C.A. § 924(c)(1)(A)(iii) and 18 U.S.C.A. § 2 for aiding and abetting in knowing possession, use, or carrying of firearms in furtherance of or during and in relation to conspiracy to obstruct commerce by robbery and stating that a Hobbs Act violation “is a crime of violence for purposes of [18 U.S.C.A. § 924(c)(1)(A) ]”) (citing United States v. Rodríguez – Casiano , 425 F.3d 12, 13 (1st Cir.2005) ); United States v. DeCologero , 530 F.3d 36, 67–69 (1st Cir.2008) (affirming conviction under § 924(c) for using or carrying a firearm during and in relation to a Hobbs Act robbery, the predicate felony); United States v. Jiménez – Torres , 435 F.3d 3, 6–8, 10 (1st Cir.2006) (affirming conviction under 18 U.S.C.A. § 924(j)(1)² for use of a firearm in the commission of a violent federal felony that resulted in a death, where Hobbs Act robbery was the predicate felony). The relevant decisions do not address the question in any detail, however, and, more importantly, they do not specifically recognize whether a Hobbs Act robbery qualifies as a “crime of violence” under § 924(c)(3)(A) or § 924(c)(3)(B). The decision that addressed the issue most directly is United States v. Turner, where the court implicitly applied the “residual clause,” § 924(c)(3)(B), and concluded that “conspiracy under the Hobbs Act constitutes a ‘crime of violence’ for purposes of 18 U.S.C. § 924(c).” See United States v. Turner , 501 F.3d 59, 67–68 (1st Cir.2007).³ In addition, the Government has neither cited these cases nor argued that the question of whether a Hobbs Act robbery may serve as a predicate “crime of violence” for purposes of the “force clause” is settled law in this Circuit.⁴ I therefore treat the question as unsettled.

1. The Categorical Framework

The Supreme Court established a categorical framework to determine whether a predicate offense of conviction qualifies as a generic federal offense in Taylor v. United States , 495 U.S. 575, 600–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and, more recently, in Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2282–85, 186 L.Ed.2d 438 (2013) (examining prior conviction for purposes of a sentence enhancement under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.A. § 924(e) ). The framework requires the court to compare the elements of the predicate offense—here, Hobbs Act robbery— with the elements of the generic federal offense—here, “crime of violence” as defined in the “force clause.” See United States v. Castro – Vazquez , 802 F.3d 28, 35 (1st Cir.2015) ; Descamps , 133 S.Ct. at 2281. Accordingly, a “categorical approach” applies to the determination of whether an offense meets the definition of “crime of violence” in 18 U.S.C.A. § 924(c)(3)(A). See Leocal v. Ashcroft , 543 U.S. 1, 7, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (stating that the language of 18 U.S.C.A. § 16,⁵ which uses the terms “offense,” “an element,” and “by its nature,” requires courts “to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to [defendant's] crime”).

Under [a categorical] approach, if the statute has the same elements as the “generic” crime as defined in the guidelines, then the prior conviction serves as a predicate offense under the guidelines. If the elements of the indivisible statute sweep more broadly than the generic crime, then the conviction cannot count as a predicate offense, “even if the defendant actually committed the offense in its generic form.”

Castro – Vazquez , 802 F.3d at 35 (emphasis in text) (citations omitted) (discussing the categorical framework for analyzing prior convictions for purposes of a sentence enhancement under U.S.S.G. § 2K2.1(a)(2) ).

In Descamps the Supreme Court also recognized that a “modified categorical approach” may apply in circumstances where the predicate offense statute is “divisible,” meaning that the relevant 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.” Descamps , 133 S.Ct....