United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson, United states District Judge.
Mohamed Abdi Jama fded a joint motion for judgment of
acquittal or a new trial on Counts Four,
Nine, and Ten of the second superseding indictment. The basis
for Defendant's motion, was the Supreme Court's
ruling in Johnson v. United States where the Supreme
Court held that the residual clause of 18 U.S.C.
924(e)(2)(B)(ii), part of the Armed Career Criminal Act
(ACCA), was unconstitutionally vague. 135 S.Ct. 2551. 2557-58
(2015). In light of this ruling, Defendant argues that
"none of the predicate offenses listed in the indictment
qualify as a crime of violence within the meaning of §
924(c)." ECF No. 355. Therefore a judgment of acquittal
or new trial is warranted. Having reviewed the Parties'
filings in this case, the Court finds that this matter is
ripe for judicial determination. For the reasons set forth
below, Defendant's Motion for Acquittal and New Trial is
motion for judgment of acquittal must be made or renewed
within fourteen days after a guilty verdict. FED. R. Crim. P.
29(c)(1). The same is also true for a motion for new trial.
Fed. R. GRIM. P. 33(b)(2), Defendants may, consistent with
Federal Rule of Criminal Procedure 45 ("Rule 45"),
seek an extension of time to file the underlying motions as
long as Defendant does so within the period of time specified
in Federal Rule of Criminal Procedure 29 ("Rule
29") and Federal Rule of Criminal Procedure 33
("Rule 33"). See Fed. R. Crim. P.
45(b)(1)(A). Further, under Rule 45(b)(1)(B), if for some
reason Defendant fails to file the underlying motion within
the specified time, "the court may nonetheless consider
that untimely motion if the court determines that the failure
to file it on time was the result of excusable neglect."
Fed. R. Crim. P. 45(b)(1)(B).
present case, Defendant's trial began on February 19,
2013, and ended on February 27, 2013. ECF No. 206. Because
the current motion was filed more than three years after the
jury delivered its verdict, without valid cause,
Defendant's motion for acquittal and new trial is time
barred. Additionally, the Court is bound by the mandate rule,
which states that any issue that could have been raised, but
was not raised on appeal, is waived and is not eligible for
consideration on remand. Doe v. Chao, 511 F.3d 461,
465 (4th Cir. 2007).
case has been remanded to this Court for the limited purpose
of resentencing Defendant on Count Five. As the record
reflects, Defendant has already litigated and challenged his
conviction, on various grounds, on direct appeal. See
United States v. Said, 798 F.3d 182, 186 (4th Cir.
2015), cert denied, 136 S.Ct. 2448 (2016). It is
important to note, however, that Defendant did not raise his
current motion for acquittal or new trial on appeal. The
Government also appealed Defendant's sentence solely on
Count Five. The United States Court of Appeals for the Fourth
Circuit ("Fourth Circuit") (1) affirmed
Defendant's conviction, (2) rejected all of
Defendant's arguments challenging this Court's
rulings, and (3) reversed Defendant's sentence on Count
Five, after concluding that a mandatory life sentence under
18 U.S.C. § 1651 in this case does not violate the
Eighth Amendment. Said, 798 F.3d at 200 (4th Cir.
2015). Because this is the first time Defendant has moved for
judgment of acquittal or new trial for Counts Four, Nine and
Ten, the mandate rule forecloses this Court from considering
this motion. See United States v. Bell, 5
F.3d 64, 66 (4th Cir. 1993) (stating, "the [mandate]
rule forecloses litigation of issues decided by the district
court but foregone on appeal or otherwise waived, for example
because they were not raised in the district court.").
even if the Court could consider Defendant's motion,
Defendant's argument would fail because the
Johnson decision does not apply to §
924(c)(3)(B). To be clear, in Johnson, the Supreme
Court evaluated whether 18 U.S.C. 924(e)(2)(B)(ii), part of
the Armed Career Criminal Act (ACCA), was unconstitutionally
the Supreme Court delivered its opinion in Johnson,
the U.S. Solicitor General submitted a Supplemental Brief to
the Court, Suppl. Br. Resp't at 22, Johnson v. United
States, 135 S.Ct. 2551 (2015) (No. 13-7120), which
listed dozens of state and federal laws that employ language
similar to the ACCA's residual clause, including §
924(c)(3)(B). Id. at la. The purpose of this list
was to encourage the Supreme Court to uphold the
constitutionality of the ACCA residual clause, warning that a
contrary decision would effectively render void myriad other
laws containing similar language, including §
924(c)(3)(B). Id. at 22-26. The Court's opinion
in Johnson flatly rejected this argument:
The Government and the dissent next point out that dozens of
federal and state criminal laws use terms like
"substantial risk, " "grave risk, " and
"unreasonable risk, " suggesting that to hold the
residual clause unconstitutional is to place these provisions
in constitutional doubt.... Not at all.
Johnson, 135 S.Ct. at 2561.
Court confirmed this again in Welch v. United
States, stating, "The Court's analysis in
Johnson thus cast [sic] no doubt on the many laws
that 'require gauging the riskiness of conduct in which
an individual defendant engages on a particular
occasion.' " 136 S.Ct. 1257, 1262 (2016) (quoting
Johnson, 135 S.Ct. at 2561). As a result, even if
the Court could have considered this question, the Court
finds no reason to conclude that the Johnson ruling
applies to § 924(c)(3)(B).
these reasons, Defendant's Motion for Acquittal and New
Trial is DENIED. The Court DIRECTS the Clerk to send a copy
of this Order to Defendant and the United States Attorney.