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United States v. Le

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

September 8, 2016

UNITED STATES OF AMERICA
v.
CUONG GIA LE Civil Action No. 1:16-cv-812

          AMENDED MEMORANDUM OPINION[[1]]

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

         Defendant, by counsel, has filed a motion pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct two of the sentences imposed on him a decade ago on the ground that the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), operates to invalidate his convictions for two counts of using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). At issue on the government's motion to dismiss is whether defendant's § 2255 motion is untimely pursuant to the one-year statute of limitations set forth in 28 U.S.C. § 2255(f). Also at issue, assuming defendant's § 2255 motion is timely, is whether Johnson operates to invalidate defendant's two § 924(c) convictions. As the matter has been fully briefed, it is now ripe for disposition.

         I.

         On October 8, 2004, defendant pled guilty to various counts charged against him in the Fifth Superseding Indictment ("Indictment"), all of which arose from defendant's involvement as a member of a criminal enterprise or gang consisting primarily of Vietnamese youth.[2] Specifically, defendant pled guilty to the following counts charged against him in the Indictment:

(i) engaging in a pattern of racketeering activity, in violation of 18 U.S.C. § 1962 (Count 1);
(ii) conspiracy to commit murder in aid of racketeering activity, in violation of 18 U.S.C. § 1959 (Count 6);
(iii) murder in aid of racketeering activity, in violation of 18 U.S.C. § 1959 (Counts 8 and 9);
(iv) attempted murder in aid of racketeering activity, in violation of 18 U.S.C. §1959 (Count 10);
(v) assault with a dangerous weapon in aid of racketeering activity, in violation of 18 U.S.C. §1959 (Count 12);
(v) conspiracy to affect commerce by robbery, in violation of 18 U.S.C. § 1951 (Count 14);
(vi) using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (Counts 26 and 27).

         Accordingly, on October 8, 2014, defendant received the following sentences:

(i) life imprisonment for Counts 1, 8, and 9, to run concurrently with each other;
(ii) 120 months' imprisonment for Counts 6 and 10, to run concurrently with each other and with the previous sentences;
(iii) 36 months' imprisonment for Count 12, to run concurrently with the previous sentences;
(iv) 240 months' imprisonment for Count 14, to run concurrently with the previous sentences; and
(v) life imprisonment for Counts 26 and 27, to run consecutively to each other and with the previous sentences.

         At issue here are Counts 26 and 27, the two counts of using a firearm in relation to a crime of violence, in violation of § 924(c).

         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, " and "[i]n the case of a second or subsequent conviction under [§ 924(c)], the person shall ... be sentenced to a term of imprisonment of not less than 25 years." 18 U.S.C. § 924(c)(1). In order to prove a violation of § 924(c), the government must establish: (1) that the defendant possessed and brandished a firearm; and (2) that he did so during and in relation to a crime of violence. United States v. Strayhorn, 743 F.3d 917, 922 (4th Cir. 2014). Under 18 U.S.C. § 924(c)(3), a "crime of violence" is 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.

Id. Subsection (A) and subsection (B) of § 924(c)(3) are commonly referred to as the "force clause" and the "residual clause" respectively.

         Defendant's two convictions pursuant to § 924(c) were predicated on numerous crimes of violence, including murder in aid of racketeering activity, in violation of § 1959, where the underlying conduct was murder, in violation of Va. Code § 18.2-32.

         On June 26, 2015, more than a decade after defendant's sentence was imposed, the Supreme Court issued its decision in Johnson v. United States, 135 S.Ct. 2551 (2015), addressing the definition of "violent felony" in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). Specifically, the Supreme Court in Johnson held that the ACCA residual clause-the provision that defines a "violent felony" to include an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another, " 18 U.S.C. § 924(e)(2)(B)(ii)-is unconstitutionally vague, and therefore that "imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process." Id. at 2563. Thereafter, on April 18, 2016, the Supreme Court held that Johnson announced a new "substantive rule that has retroactive effect in cases on collateral review." Welch v. United States, 136 S.Ct. 1257, 1268 (2016).

         On June 27, 2016, shortly after the Supreme Court's decision in Welch, defendant filed a motion pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the sentences imposed on him for his two convictions pursuant to § 924(c) on the ground that the Supreme Court's decision in Johnson operates to invalidate these convictions. Specifically, defendant contends that the residual clause of § 924(c) is indistinguishable from the ACCA residual clause, and accordingly, the residual clause of § 924(c) is unconstitutionally vague pursuant to the rationale of Johnson.

         On July 12, 2016, the government filed a motion to dismiss defendant's § 2255 motion on the ground that collateral review of defendant's sentence or conviction is untimely pursuant to the ...


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