Wallace v. United States

• Decision Date: 05 August 2022
• Docket Number: 20-5764
• Citation: 43 F.4th 595
• Parties: Dominique Cordell WALLACE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

43 F.4th 595

Dominique Cordell WALLACE, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 20-5764

United States Court of Appeals, Sixth Circuit.

Argued: June 8, 2022

Decided and Filed: August 5, 2022

ARGUED: Kolya D. Glick, ARNOLD & PORTER KAYE SCHOLER, LLP, Washington, D.C., for Appellant. Cecil W. VanDevender, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee. ON BRIEF: Kolya D. Glick, John P. Elwood, Allon Kedem, Andrew T. Tutt, ARNOLD & PORTER KAYE SCHOLER, LLP, Washington, D.C., for Appellant. Cecil W. VanDevender, Philip H. Wehby, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee.

Before: SUTTON, Chief Judge; KETHLEDGE and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Dominique Wallace tried to rob a convenience store just weeks after his release on probation from a three-year detention for attempted murder. This crime left an accomplice dead and a victim terribly disabled. Wallace pleaded guilty to, among other things, discharging a firearm during a "crime of violence" that resulted in death, in violation of 18 U.S.C. § 924(j), and illegally possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). In this collateral challenge, Wallace asserts that we should vacate these convictions because of a pair of decisions that the Supreme Court issued after he pleaded guilty.

Wallace is right with respect to his crime-of-violence conviction under § 924(j). In United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), the Court found part of § 924 ’s definition of "crime of violence" to be unconstitutionally vague. Id. at 2336. Given Davis , Wallace did not violate § 924(j) because his attempted robbery does not qualify as a "crime of violence" under the constitutional part of § 924 ’s definition. Despite his specific crime's violent nature, his offense falls outside § 924 under the "categorical approach" to answering this crime-of-violence question.

But Wallace is wrong with respect to his felon-in-possession conviction under § 922(g)(1). In Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), the Court held that defendants do not violate § 922(g)(1) unless they know that they have been convicted of a crime punishable by more than one year in prison when they possess firearms. Id. at 2196. Citing Rehaif , Wallace argues that the district court erred by not informing him during his plea hearings that the government must prove that he knew his prior offense (attempted murder) was punishable by more than a year in prison. Yet Wallace procedurally defaulted this claim because he did not raise it in his criminal proceedings, and he has offered no valid reason for us to excuse this default. We thus affirm in part and reverse in part the district court's denial of Wallace's motion to vacate his convictions.

I

Before Wallace turned 18, he had accumulated a lengthy history of run-ins with the law in Nashville, Tennessee. Most seriously, a 17-year-old Wallace and an accomplice robbed a man at gunpoint in April 2012. According to Wallace's presentence report in his federal cases, the robbery victim's attempt to escape the robbery led Wallace to shoot him. A state juvenile court ordered Wallace to be tried as an adult, and a grand jury indicted him on charges that included attempted first-degree murder. The state detained Wallace without trial for three years. Nothing in the record explains this lengthy pretrial delay. In May 2015, though, Wallace pleaded guilty to attempted second-degree murder, and the state dismissed the other charges. The state court imposed a 10-year suspended sentence. It released Wallace the same month. In his petition to plead guilty, Wallace acknowledged that the state would credit him with his three years of time served in jail. (Under Tennessee law, Wallace also would have been eligible for parole after three years’ imprisonment. See Tenn. Code Ann. § 40-35-501(c).) He signed a form noting that, as a condition of his probation, he could not possess firearms.

Wallace flouted this condition. Within weeks, he committed the crimes that initiated his federal cases. On June 3, 2015, Wallace and three coconspirators attempted to rob a Nashville convenience store—the "Express Market"—after its 10:00 p.m. closing. Wallace, Demontay Thomas, and Robert Brooks went into the store armed with handguns; a getaway driver waited in the car. When the three robbers entered, the Express Market's owner stood near the cash register and an employee stood near the entrance. The robbers demanded money at gunpoint and forced the employee to join the store owner at the cash-register counter, which was partially protected by a plexiglass wall. Thomas and Brooks attempted to get behind the wall to access the cash register. Thomas crawled under the counter as Brooks squeezed through a gap in the wall. But they did not coordinate with each other. Thomas thus surprised Brooks as the pair simultaneously emerged on the counter's other side. A startled Brooks shot Thomas, who made it back to the entrance before collapsing dead. The gunshot caused Brooks and Wallace to flee. On the way out, Wallace shot the store employee twice—once in the head and once in the stomach. The employee miraculously survived.

Wallace remained at large. A week after this attempted robbery, officers thought they saw him engage in a drug deal. When the officers approached the car in which Wallace was sitting, they smelled marijuana. Seeking to search the car, the officers asked Wallace to get out. As Wallace exited, an officer spotted a handgun underneath his leg. They arrested him for illegally possessing a firearm.

These two incidents led separate grand juries to indict Wallace in separate cases. For the crimes at the store, a grand jury charged Wallace with conspiring to commit Hobbs Act robbery and attempting to commit such a robbery—both in violation of 18 U.S.C. § 1951(a). This grand jury also charged Wallace with discharging a firearm during a "crime of violence" that resulted in Thomas's death, in violation of 18 U.S.C. § 924(j). As the predicate "crime of violence," the indictment pointed to his two Hobbs Act offenses. The grand jury lastly charged Wallace with possessing a firearm and ammunition as a felon, both in violation of 18 U.S.C. § 922(g)(1). For the incident a week later, a second grand jury indicted Wallace on a third felon-in-possession charge.

Wallace pleaded guilty to all counts in both cases. The district court held a combined sentencing hearing. It heard testimony from the Express Market employee who had been shot. A Yemeni immigrant who had become a U.S. citizen, this employee worked seven days a week before the shooting to help his cousin (the store's owner) operate the store. He sent most of his earnings back to his wife and kids in Yemen. At the time of the shooting, he had been arranging for them to come to the United States because the war in Yemen had made living there unsafe. Immediately after he was shot, he lay on the floor believing that he was going to die due to all the blood. He remained hospitalized for some six weeks and underwent, among other things, three stomach surgeries

. For

months after his discharge, he needed to use a feeding tube through his nose and could not talk. He continues to suffer significant pain in his face and stomach, and doctors have told him that he will go blind within 10 years of his injuries. He cannot work or support his family. In short, his "life is gone." Sent. Tr., R.232, No. 15-cr-140, PageID 705.

In light of this testimony, the district court called Wallace's case "one of the worst violent cases" it had seen. Id. , PageID 803. Wallace's presentence report calculated his guidelines range as 360 months to life imprisonment. The court chose an "effective 360-month sentence[.]" Id. , PageID 805. To reach that result, it imposed a statutory-maximum sentence for each of the two Hobbs Act convictions (20 years’ imprisonment) and each of the three felon-in-possession convictions (10 years’ imprisonment under then-existing law). See 18 U.S.C. § 1951(a) ; 18 U.S.C. § 924(a)(2) (2018). (Recent legislation has increased the statutory maximum for felon-in-possession convictions. 18 U.S.C. § 924(a)(8), as amended by the Bipartisan Safer Communities Act, Pub L. No. 117-159, § 12004(c), 136 Stat. 1313, 1329 (2022).) But the court ordered these five sentences to run concurrently with each other, so they added up only to 20 years of total prison time. Lastly, the court chose a 10-year sentence for Wallace's § 924(j) conviction for discharging a firearm during a crime of violence that resulted in death. A circuit conflict existed over whether a sentence under § 924(j) must run consecutively with the sentences for the other counts. See United States v. Wallace , 772 F. App'x 320, 321 (6th Cir. 2019). The district court sided with those courts that read § 924(j) to mandate a consecutive sentence. This additional sentence gave Wallace a total of 30 years’ imprisonment.

Wallace appealed. He argued that § 924(j) did not require his 10-year sentence to run consecutively to his other sentences. We did not resolve this statutory question because the district court had noted that it would have imposed a 30-year concurrent sentence on that count (to reach the same total prison term) if the law gave it discretion to choose between consecutive and concurrent sentences. Id. If the district court misconstrued § 924(j), therefore, any error would have been harmless. Id.

Wallace then filed a motion under 28 U.S.C. § 2255 to vacate some of his convictions based on Davis and Rehaif —both of which postdated his guilty pleas. He argued that Davis effectively invalidated his § 924(j) conviction because his two Hobbs Act offenses were not "crimes of violence" after the decision. The district court disagreed, holding that attempted Hobbs Act robbery still qualified as a "crime of violence." Wallace v. United...