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United States v. McDaniels

United States District Court, E.D. Virginia, Alexandria Division

November 23, 2015

UNITED STATES OF AMERICA,
v.
EMMANUEL PURCELL MCDANIELS, Defendant

          For Emmanuel Purcell McDaniels, Defendant: Bruce A. Johnson, Jr., LEAD ATTORNEY, Bowie, MD.

         For U.S.A, Plaintiff: Patricia T. Giles, LEAD ATTORNEY, United States Attorney's Office, Alexandria, VA; Richard D. Cooke, United States Attorney's Office (Richmond), Richmond, VA.

         MEMORANDUM OPINION

         T.S. Ellis, III, United States District Judge.

         A five-count superseding indictment has issued charging defendant with: (i) one count of conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a): (ii) two counts of Hobbs Act robbery, 18 U.S.C. § 1951(a); and (iii) two counts of using, carrying, and brandishing a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii). At issue on this pre-trial motion to dismiss two counts of the superseding indictment is whether Hobbs Act robbery qualifies as a predicate crime of violence for § 924(c)(1)(A) pursuant to the definition of " crime of violence" set forth in § 924(c)(3). The matter has been fully briefed and argued and, for the reasons stated from the bench, an Order issued denying defendant's motion to dismiss in all respects. United States v. McDaniels, 1:15-cr-177 (Sept. 18, 2015) (Order) (Doc. 50). This memorandum opinion records and elucidates the reasons for denying defendant's motion to dismiss, addressing specifically the following issues:

(1) Whether the categorical approach applies to a motion to dismiss a § 924(c) count of an indictment on the ground that a Hobbs Act robbery--the predicate offense for the § 924(c) violation--is not categorically a crime of violence.
(2) Assuming the categorical approach applies, whether Hobbs Act robbery qualifies as a crime of violence pursuant to the " Force Clause" of § 924(c)(3)(A).
(3) Whether the ''Residual Clause" of § 924(c)(3) is unconstitutionally vague, and hence cannot serve as a basis for the conclusion that a Hobbs Act robbery qualifies as a § 924(c) crime of violence.

         I.

         The pertinent facts as set forth in the superseding indictment may be succinctly summarized. On or about February 13, 2015, defendant and two co-conspirators robbed a McDonald's in Arlington, Virginia. One co-conspirator served as the getaway driver, and defendant and his co-conspirator entered the McDonald's wearing masks and wielding firearms. One of the gunmen jumped the counter, pointed his gun at employees and demanded money from the cash registers and the safe. At the same time, the other gunman ordered patrons at the front of the store not to move. After obtaining approximately $2,221.00 in cash from the restaurant's employees, the men fled the restaurant, entered a black Toyota, and left the area.

         On or about March 6, 2015, at approximately 5:49 p.m., defendant and a co-conspirator robbed a Radio Shack in Arlington, Virginia. Store surveillance cameras captured the events of the robbery. At approximately 5:49 p.m., defendant, wearing a mask and carrying a red backpack, entered the store and brandished a handgun, demanding that the store clerk to give him the money from the register. After the clerk relinquished $393.00 in cash, defendant fled out the store's front door, entered a waiting Toyota Avalon driven by his co-conspirator, and the pair then left the area.

         On August 4, 2015, a grand jury returned a superseding indictment charging defendant with: (i) conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a); (ii) two counts of Hobbs Act robbery, 18 U.S.C. § 1951(a); and (ii) two counts of using, carrying, and brandishing a firearm, 18 U.S.C. § 924(c)(1)(A)(ii).

         Defendant moved to dismiss the two § 924(c)(1)(A)(ii) counts on the ground that Hobbs Act robbery cannot qualify as a predicate crime of violence for § 924(c) pursuant to the definition of " crime of violence" set forth in§ 924(c)(3). On September 18,2015, an Order issued denying defendant's motion to dismiss in all respects. McDaniels, 1:15-cr-177 (E.D. Va. Sept. 18, 2015) (Order) (Doc. 50) .

         II.

         Pursuant to § 924(c), a defendant who " during and in relation to any crime of violence ... uses or carries a firearm ... shall, in addition to the punishment provided for such crime of violence ... if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years." 18 U.S.C. § 924(c)(1)(A)(ii). In order to prove a violation of § 924(c)(1)(A)(ii), " the [g]overnment must prove: (1) the defendant possessed and brandished a firearm; and (2) he did so during and in relation to a crime of violence." United States v. Jenkins, No. 15-4135, 628 Fed.Appx. 840, 2015 WL 6121552, at *1 (4th Cir. Oct. 19, 2015) (citing United States v. Strayhorn, 743 F.3d 917, 922 (4th Cir. 2014)). The statute defines " crime of violence" as any felony:

(A) [that] 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. § 924(c)(3). Subsection (A) and subsection (B) are commonly referred to as the " Force Clause" and the " Residual Clause" respectively. At issue here is whether Hobbs Act robbery[1] qualifies as a " crime of violence" under either the Force Clause or the ...


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