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United States v. Herstch

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

September 12, 2017

UNITED STATES OF AMERICA
v.
JOYN LYNN E. HERSTCH, et al., Defendants.

          MEMORANDUM OPINION

          M. Hannah Lauck, United States District Judge.

         This 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").[1] (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.)

         I. Procedural Background

         On July 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 and Williams:

Count One: Hobbs Act Robbery, in violation of 18 U.S.C. §§ 1951[2] and 2[3] (the "Hobbs Act Robbery Charge"); and,
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)[4] and 2 (the "Firearm Charge").

         On July 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.)

         On 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 § 924(c)(3)(B).

         II. Analysis: The Motion to Dismiss

         A. Statutory Framework of § 924(c)

         18 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. § 924(c)(1)(A)(iii).

         The 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 "Residual Clause")].

Id. § 924(c)(3).

         B. Hobbs Act Robbery Categorically Constitutes a Crime of Violence

         The 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 ยง 924(c) ...

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