United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck, United States District Judge.
matter is before the Court on Defendant Joy Lynn E.
Herstch's Motion to Dismiss Count Two of the Indictment,
(the "Motion to Dismiss"). (ECF No. 23.) Defendant
Chad G. Williams filed a "Motion to Adopt Co-Defendant
Herstch's Motion to Dismiss Count Two of the
Indictment" (the "Motion to
Adopt"). (ECF No. 27.) The United States responded
to the Motion to Dismiss, (ECF No. 28), and Herstch replied,
(ECF No. 30). No party has requested a hearing. Accordingly,
the matter is ripe for disposition. For the reasons that
follow, the Court will deny Herstch's Motion to Dismiss.
(ECF No. 23.)
11, 2017, the United States filed an Indictment against
Herstch, Williams, and two additional co-defendants. (ECF No.
10.) The Indictment alleged two counts against both Herstch
Count One: Hobbs Act Robbery, in violation
of 18 U.S.C. §§ 1951 and 2 (the "Hobbs Act Robbery
Count Two: Use of a Firearm by Discharge
During and In Relation to a Crime of Violence, in violation
of 18 U.S.C. §§ 924(c) and 2 (the "Firearm
31, 2017, all defendants were arraigned and entered pleas of
not guilty, and the Court set jury trial for September 25,
2017. (ECF No. 13.)
August 11, 2017, Herstch filed the Motion to Dismiss, arguing
that Count Two, the Firearm Charge, should be dismissed
because the underlying offense, Hobbs Act robbery, is not a
crime of violence. The Motion to Dismiss thus presents to the
Court two issues: (1) whether Hobbs Act robbery categorically
constitutes a crime of violence under 18 U.S.C. §
924(c)(3)(A); and, (2) whether the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015), renders unconstitutional the residual clause of
Analysis: The Motion to Dismiss
Statutory Framework of § 924(c)
U.S.C. § 924(c)(1)(A) provides additional periods of
imprisonment when a defendant uses or carries a firearm in
furtherance of a crime of violence. The baseline additional
period of imprisonment is five years. 18 U.S.C. §
924(c)(1)(A)(i). If the defendant brandishes the firearm, the
additional period of imprisonment increases to at least seven
years. Id. § 924(c)(1)(A)(ii). And if the
defendant discharges the firearm, the additional period of
imprisonment increases to at least ten years. Id.
United States can demonstrate that an underlying offense
constitutes a crime of violence if it establishes that the
offense is a felony and satisfies one of two requirements.
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 [(the "Force Clause")], or[J
(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 [(the
Id. § 924(c)(3).
Hobbs Act Robbery Categorically Constitutes a Crime of
United States Court of Appeals for the Fourth Circuit
recently stated that "the categorical approach is a
particularly bad fit in § 924(c) cases because §
924(c) is a firearms enhancement provision that penalizes, in
broad terms, the use of a firearm during violent crimes,
" but that Fourth Circuit "precedent requires
application of that approach." In re Irby, 858
F.3d 231, 234 (4th Cir. 2017). As one court in this District
has aptly observed:
It appears that the Fourth Circuit has an internal dispute on
whether the categorical approach is proper to § 924(c)
at all, let alone a pretrial Motion on § 924(c). See
In re Irby, 858 at 234 (criticizing use of the
categorical approach on § 924(c) before applying it as
compelled by prior panels); see also United States v.
Doctor,842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson,
J., concurring). Several Courts in this District have also
discussed why the categorical approach is inappropriate to
pretrial Motions concerning § 924(c). See United
States v. McDaniels,147 F.Supp.3d 427, 432 (E.D. Va.
2015); United States v. Standberry, 139 F.Supp.3d
734, 736 (E.D. Va. 2015); see also United States v.
Jimenez-Segura,206 F.Supp.3d 1115, 1131 (E.D. Va. 2016)
(expressing similar reservations about applying the
categorical approach to § 924(c) after a guilty plea).
The purpose of the categorical approach is to protect
defendants against a later court re-trying the facts of prior
convictions. McDaniels, 147 F.Supp.3d at 432. Such
protection is unnecessary in a pre-trial motion because the
court will submit the facts to a properly instructed jury
after the motion. See Id. Furthermore, such
protection could create absurd results in any motion
concerning § 924(c) ...