United States District Court, E.D. Virginia, Alexandria Division
OSSIE K. LARODE, Movant,
UNITED STATES OF AMERICA, Respondent.
M. BRINKEMA UNITED STATES DISTRICT JUDGE.
the Court is Ossie K. Larode's ("Larode" or
"movant") motion, filed under 28 U.S.C. §
2255, to vacate his conviction in light of Johnson v.
United States (Johnson II), 135 S.Ct. 2551 (2015), and
Sessions v. Dimaya, 138 S.Ct. 1204 (2018). The
Government has moved to dismiss Larode's § 2255
motion on multiple procedural and substantive grounds. For
the reasons that follow, the Government's motion to
dismiss will be granted, and Larode's § 2255 motion
will be dismissed.
was initially indicted on February 10, 2005 by a federal
grand jury in the Eastern District of Virginia. After one of
the injured victims died as a result of his injuries, on
April 6, 2005, a superseding five-count indictment was
returned charging Larode with carjacking resulting in death
in violation of 18 U.S.C. § 2119 (Count 1); murder of a
federal officer in violation of 18 U.S.C. § 1111 (Count
2); assaulting a federal officer in violation of 18 U.S.C.
§ 111 (Count 3); attempted murder of a federal officer
in violation of 18 U.S.C. § 1114 (Count 4); and using,
brandishing, and discharging a firearm during a crime of
violence in violation of 18 U.S.C. § 924(c) (Count 5).
Counts 3 and 4 were the predicate crimes of violence for
written plea agreement, on June 30, 2006, Larode pleaded
guilty to murder in the second degree as charged under Count
2 and to using a firearm during a crime of violence as
charged under Count 5. Counts 1, 3, and 4 were dismissed on
the Government's motion. The plea agreement incorporated
a signed statement of facts that established the following:
On January 11, 2005, defendant Ossie K. Larode approached Mr.
Byung Ki Kim outside the McDonald's restaurant located at
1000 North Henry Street, in Alexandria, Virginia, knocked the
keys to a 2003 Cadillac Seville from Kim's hand,
threatened to shoot Kim if he didn't back away, got in
the vehicle and drove off.
Kim telephoned a report of the carjacking to the Alexandria
Police Department, and Alexandria police and other law
enforcement officers began looking for the vehicle. One of
those officers spotted the vehicle in Alexandria and began a
pursuit that eventually was joined by other officers and led
to Interstate 395 in the vicinity of the Pentagon. As Larode
drove by the Pentagon, he suddenly turned the wrong way on to
[sic] an exit ramp that led from the Pentagon South Parking
Lot to Interstate 395, and sped toward the South Parking Lot,
followed by several pursuing officers. As he left the ramp he
continued the wrong way on South Rotary Road, which runs
along the perimeter of the parking lot and which is in the
Eastern District of Virginia.
At that same time, James Feltis, a federal employee and
officer with the Pentagon Police Department, was on duty
outside a traffic control booth on South Rotary Road.
Apparently, thinking that Larode was simply lost or confused,
Feltis stepped into the traffic lane and into the path of the
Cadillac and signalled [sic] for him to stop. Instead and
without making any effort to slow down or stop, Larode struck
Feltis, critically injuring him and knocking him into the
Feltis was medevaced to Inova Fairfax Hospital, in Fairfax,
Virginia, where he died, having never regained consciousness,
on February 14, 2005, as a proximate result of the injuries
he incurred when he was struck by Larode. Throughout his
attempt to elude the pursuing officers, including the time
immediately before his striking of Feltis, defendant Larode
drove the stolen Cadillac recklessly with extreme disregard
for human life. His taking of Feltis' life was unlawful
and did not result from accident, inadvertence or other [sic]
After striking Feltis, Larode continued the wrong way on
South Rotary Road, up the wrong way on the ramp to Washington
Boulevard with several officers still in pursuit and entered
Washington Boulevard still going the wrong direction. Larode
then tried to turn in the right direction, and as he did so,
his car was struck and stopped by one of the pursuing
officers. Once Larode stopped, one of those officers ordered
him to get out of his vehicle. When he didn't, the
officers broke the drivers [sic] side window and pulled
Larode from the vehicle. A struggle ensued between Larode and
the officers, during which Larode assaulted three Pentagon
Police Department officers, who were assisting in subduing
Larode, and all of whom at the time were employees of the
United States engaged in the performance of their official
duties. In the course of Larode's assaulting the Pentagon
Police Department officers, he got possession of one of the
other officers' service firearms, a Glock .40 caliber
semiautomatic pistol, and fired it three times at them.
Larode's assaulting of the three Pentagon Police
Department officers was unlawful as was his using,
brandishing and discharging the pistol during and in relation
to that assault.
Statement of Facts [Dkt. No. 55] ¶¶ 1-6.
Larode's plea was accepted, and he was sentenced to a
total of 382 months' imprisonment, consisting of 262
months for Count 2 and 120 consecutive months for Count 5,
among other penalties. Larode did not appeal either his
conviction or his sentence.
23, 2016, Larode filed a motion pursuant to 28 U.S.C. §
2255 arguing that his conviction for using a firearm during a
crime of violence in violation of 18 U.S.C. § 924(c)
should be vacated in light of Johnson II. 135 S.Ct.
2551 (2015), which held that 18 U.S.C. §
924(e)(2)(B)(ii)-what is known as the "residual
clause" of the Armed Career Criminal Act
("ACCA")-was unconstitutionally vague, Id.
at 2556-63. The Government moved to dismiss Larode's
§ 2255 motion. In December 2016, the Court stayed these
proceedings to await the decision in what became Sessions
v. Dimaya, 138 S.Ct. 1204 (2018), in which the Supreme
Court held that a similar residual clause in 18 U.S.C. §
16(b) was also unconstitutionally vague. After the
Dimaya opinion was issued, the stay in these
proceedings was lifted, and the Government was ordered to
show cause why Larode's motion should not be granted. The
Government responded with a supplemental motion to dismiss,
which has been fully briefed, and the Court finds that oral
argument would not aid the decisional process.
924(c) of Title 18 of the U.S. Code provides in relevant
(1)(A) 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 . . ., 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 ... -
(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.
(3) For purposes of this subsection the 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
(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)(1), (3). Subsection (A) of §
924(c)(3) is often called the "force" or
"elements" clause,  and subsection (B) is known as
the "residual" clause.
924(c)(3) is similar in text and structure to other
provisions of the U.S. Code. For example, using nearly