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Royer v. United States

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

August 2, 2018

RANDALL TODD ROYER, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge

         Before the Court is movant Randall Todd Rover's ("movant" or "Royer") Motion to Vacate Under 28 U.S.C. § 2255 [Dkt. No. 842]. For the reasons that follow, Royer's motion will be granted.

         I. BACKGROUND

         A. Factual Background

         On June 25, 2003, a grand jury in the Eastern District of Virginia returned an indictment [Dkt. No. 1] charging Royer and ten other defendants[1] with a number of offenses, all arising out of their preparations for violent jihad overseas and, with respect to some defendants including Royer, their travel to Pakistan to train with Laskhar-e-Taiba ("LET"), a militant group that was, at the time, "primarily engaged in using military means to oust India from Kashmir," Presentence Report ("PSR") [Dkt. No. 788] ¶ 93. In August and September 2003, four of the co-defendants pleaded guilty and, on September 25, 2003, a grand jury returned a 32-count superseding indictment [Dkt. No. 167] charging Royer and the remaining six co-defendants with various offenses.

         On January 16, 2004, Royer pleaded guilty to a two-count criminal information under a written plea agreement, and the government agreed to dismiss all of the counts in the superseding indictment as they related to Royer. [Dkt. Nos. 373 & 375]. Count One of the criminal information charged Royer with aiding and abetting the use and discharge of a semi-automatic pistol by co-defendants Khan, Kwon, Aatique, and Hasan in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c), and specified that the crime of violence in question was a violation of Count One of the superseding indictment, which charged a conspiracy to commit various offenses against the United States of America, in violation of 18 U.S.C. § 371. Count Two of the criminal information, which is not at issue in the present motion, charged Royer with aiding and abetting the carrying of an explosive during the commission of a felony that may be prosecuted in a United States court, in violation of 18 U.S.C. §§ 2, 844(h)(2).

         As part of his guilty plea, Royer agreed to a Statement of Facts, which described a set of facts that Royer both agreed were true and agreed that the government could have proven beyond a reasonable doubt at trial. See PSR ¶¶ 89-132. As the Statement of Facts described, Royer first joined a militant Muslim organization in late 1994 or early 1995, when he took a leave of absence from college and traveled to Bosnia to take part in the then-ongoing Bosnian War. Id ¶ 95. While in Bosnia, Royer "participated in about six weeks of military training and engaged in several battles." Id. Approximately four years later, Royer returned to the Balkans, this time traveling to Macedonia "with the intent of fighting for ethnic Albanian Muslims against Serb forces in Kosovo"; however, after Royer arrived, he "learned that the authorities were not allowing people like him to serve as foreign volunteers" and he returned to the United States. Id. ¶96.

         In January 2000, about eight months after Royer's return, he and Al-Hamdi decided to travel to Chechnya, where they could fight for besieged Muslims. Id. ¶ 97. Because Al-Hamdi had previously attempted to get to Chechnya but had been told that he would not be accepted as a fighter without military training, Royer and Al-Hamdi decided to first travel to LET camps in Pakistan to allow Al-Hamdi to receive military training and to make contacts that could get them accepted as fighters in Chechnya. Id. In February 2000, Royer and Al-Hamdi attempted to obtain visas to enter Pakistan, but Al-Hamdi was unable to obtain a visa because he had a diplomatic passport. Id. ¶ 99. Undeterred, Royer traveled to Pakistan by himself, where he made his way to the LET office in Lahore and told the LET representatives that he had previously fought in Bosnia and wanted to fight in Chechnya. Id. ¶¶ 100-01. The representatives verified his story about having fought in Bosnia and told him that LET could help him get to Chechnya. Id. ¶ 101.

         At some point while in Pakistan, Royer "realized that he would not have time to travel to Chechnya within the time frame he had allotted himself before returning to his pregnant wife in Bosnia," and he instead decided to help LET with its publicity efforts by establishing a bulletin board on the Internet for LET, writing and publishing nine bulletins on behalf of LET, which provided information about its recent exploits and explained its positions on various issues. Id. ¶¶ 102-04. Royer also traveled to LET training camps and to the front line in Kashmir, where he shot some number of live rounds at Indian positions with a machine gun. Id. ¶ 105.

         In May 2000, Royer returned to the United States, where he continued to assist LET with its publicity efforts by editing bulletins, establishing a new group on the Internet to "provide an outlet for political commentary" from LET rather than battle reports, and posting messages to this new group. Id. ¶¶ 106-07. In addition, Royer told a variety of friends about his experience with LET and encouraged others to travel to Pakistan to train with the group. Id. ¶ 108.

         Royer also used his contacts with LET to help various individuals access the group's training camps. Specifically, Royer told an LET member about Al-Hamdi's desire to train with the group and provided that member with Al-Hamdi's name and information, telephoned LET about Aatique's desire to visit a camp and provided Aatique with a letter of reference and an LET telephone number, arranged for someone from LET to pick up co-defendant Chapman in Karachi and take him to the camps, provided an LET contact in Pakistan with physical descriptions of Kwon and Hasan, and provided Kwon with instructions on how to contact LET once he arrived in Pakistan. Id. ¶¶ 111, 115, 116, 121. Each of these individuals in fact traveled to Pakistan and spent some amount of time at the LET camps. Id. ¶¶ 113, 116, 122, 128. In addition, Al-Hamdi went on a mission with LET, where "his group fired rocket-propelled grenades and automatic weapons at Indian troops in Kashmir," and each of Khan, Aatique, Hasan, and Kwon fired an AK-47 rifle, a 12 mm anti-aircraft gun, a machine gun, and a rocket-propelled grenade during training exercises at the LET camps. Id. ¶¶ 113, 128.

         On April 9, 2004, Royer was sentenced to a total of 240 months imprisonment, with credit for time served, as well as 3 years of supervised release. [Dkt. No. 506]. This sentence consisted of consecutive sentences of 120 months imprisonment and concurrent terms of 3 years of supervised release on each of Counts One and Two.[2]

         On March 16, 2009, Royer filed his first Motion to Vacate Under 28 U.S.C. § 2255 [Dkt. No. 705], which raised issues unrelated to the present motion. The Court dismissed this motion as untimely. [Dkt. No. 760]. On June 25, 2014, Royer filed a Petition for a Writ of Habeas Corpus [Dkt. No. 775], which also raised issues unrelated to the present motion, and which the Court dismissed for a lack of jurisdiction [Dkt. No. 770].

         On June 3, 2016, after receiving the appropriate authorization from the Fourth Circuit to file a second or successive 28 U.S.C. § 2255 motion [Dkt. No. 841], Royer filed the present Motion to Vacate, in which he argues that his conviction under § 924(c) should be vacated because the definition of crime of violence on which it relied is unconstitutionally vague in light of Johnson v. United States, 135 S.Ct. 2551 (2015). On December 12, 2016, Royer was released from the custody of the Bureau of Prisons; however, because Royer was still subject to supervision, he informed the Court after his release that he wished to continue with the Motion to Vacate. [Dkt. No. 875]. On April 14, 2017, the Court stayed the Motion to Vacate pending the Supreme Court's decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018). [Dkt. No. 877]. On April 17, 2018, the Supreme Court released its decision in Dimaya and, two days later, the Court unstayed the Motion to Vacate and set a briefing schedule. [Dkt. No. 882], The Motion to Vacate has now been fully briefed and the Court finds that oral argument would not aid the decisional process.

         B. Legal Background

         Under 18 U.S.C. § 924(c):

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime- (i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A). Section 924(c) also provides a definition of the term "crime of violence" for purposes of that section:

[T]he term "crime of violence" means an offense that is a felony and-(A) 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). The two prongs of this definition are commonly referred to as the "force clause" and the "residual clause" respectively. This provision is not the only place in the United States code where a similar definition appears. Using nearly identical language, 18 U.S.C. § 16 provides:

The term "crime of violence" means-(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and 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. § 16.[3] Similarly, 18 U.S.C. § 924(e)[4] defines the term "violent felony" as

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C.§ 924(e)(2)(B).

         The current Motion to Vacate rests on two Supreme Court cases respectively addressing § 924(e) and § 16: Johnson v. United States, 135 S.Ct. 2551 (2015), and Sessions v. Dimaya, 138 S.Ct. 1204 (2018). In Johnson, the Supreme Court considered a due process vagueness challenge to the portion of § 924(e) defining a violent felony as a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the "ACCA residual clause"). See Johnson, 135 S.Ct. at 2555. Although the Supreme Court had previously decided four different cases each involving the application of the ACCA residual clause to a specific state crime and had "rejected suggestions by dissenting Justices" in two of those cases that the ACCA residual clause violated "the Constitution's prohibition of vague criminal laws," Id. at 2556, the Johnson Court reversed course, holding that "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges" and that increasing "a defendant's sentence under the clause denies due process of law," Id. at 2557.

         As the Supreme Court explained, the ACCA residual clause required courts to use a framework known as the ordinary-case approach when determining whether a previous conviction of a particular state or federal crime qualified as a conviction of a violent felony. Under this framework, courts were required "to picture the kind of conduct that the crime involves in the ordinary case, and to judge whether that abstraction presents a serious potential risk of physical injury." Id. (internal quotation marks omitted). In determining that the ACCA residual clause was unconstitutionally vague, the Court specifically described problems generated by four aspects of this inquiry.

         First, the Court observed that the ACCA residual clause "leaves grave uncertainty about how to estimate the risk posed by a crime" because "assessing 'potential risk' seemingly requires the judge to imagine how the idealized ordinary case of the crime subsequently plays out" but the statute provides no guidance on how to determine what the "ordinary case" of a given crime includes. Id. at 2557-58. As examples, the Court explained that it is unclear whether the ordinary case of witness tampering involves offering a witness a bribe or threatening a witness with violence or whether the ordinary case of attempted burglary involves a would-be burglar being confronted by a police officer, security guard, or homeowner or simply a homeowner "yelling 'Who's there?' from his window, and the burglar's running away." Id. (internal quotation marks omitted). The Court further explained that the statute provided no guidance on how to determine which of various potential alternatives represents the ordinary case: "A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?" Id. at 2557 (internal quotation marks omitted).

         Second, the Court observed that the ACCA residual clause left "uncertainty about how much risk it takes" for this ill-defined "ordinary case" of a crime "to qualify as a violent felony." Id. at 2558. The indeterminacy of this risk threshold was heightened by the provision's structure, which "force[d] courts to interpret 'serious potential risk' in light of the four enumerated crimes-burglary, arson, extortion, and crimes involving the use of explosives," which themselves are "far from clear in respect to the degree of risk each poses." Id. (internal quotation marks omitted).

         Third, the Court observed that the ACCA residual clause did not limit the inquiry to risks posed by even the stylized ordinary defendant's conduct in the commission of the offense but instead forced courts to consider how the aftermath of the ordinary offense might play out. As the Court explained, "the inclusion of burglary and extortion among the enumerated offenses preceding the residual clause confirms that the court's task also goes beyond evaluating the chances that the physical acts that make up the crime will injure someone" because the risk of injury in such cases "arises because the extortionist might engage in violence after making his demand or because the burglar might confront a resident in the home after ...


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