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United States v. Music

United States District Court, W.D. Virginia, Abingdon Division

June 3, 2019

UNITED STATES OF AMERICA
v.
WILLIAM LLOYD MUSIC, Defendant.

          Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for United States; Nancy C. Dickenson, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant.

          OPINION

          James P. Jone, s United States District Judge

         The defendant, by counsel, has filed a Second Amended Motion to Correct Sentence under 28 U.S.C. § 2255 (“§ 2255 Motion”), contending that his sentence for violating 28 U.S.C. § 924(c) is now invalid because the statutory definition of “crime of violence” found in 28 U.S.C. § 924(c)(3)(B) is unconstitutional. The government argues that the defendant's § 2255 Motion is untimely and that he is not entitled to relief because the underlying federal offense of witness tampering qualifies as a “crime of violence” under 28 U.S.C. § 924(c)(3)(A), known as the “force clause.” The defendant's § 2255 Motion has been extensively briefed and orally argued and is now ripe for decision. For the reasons that follow, I conclude that the motion is timely but that the defendant is not entitled to relief.

         I.

         On August 26, 2008, Music and his three codefendants broke into a home, one of a series of residential burglaries they committed that day to steal guns and other valuables. The homeowner, Dave Branscome, drove into the driveway while the break-in was underway. Music fired a handgun towards Branscome's vehicle in order to allow Music and his codefendants to escape and to prevent Branscome from reporting the crime to law enforcement. One of the codefendants reported to investigators that another codefendant had told Music to “cap” Branscome just before Music began firing. Presentence Investigation Report ¶ 16, ECF No. 81.

         A grand jury of this court charged Music with six counts. With the benefit of a Plea Agreement, Music pled guilty to Count Six of the Indictment, which charged him with using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). The crime of violence identified was federal witness tampering in violation of 18 U.S.C. § 1512(a), as charged in Count Four. Count Four specifically alleged:

1. In or about October 2008, . . . WILLIAM LLOYD MUSIC, . . . as principal[] and aider[] and abettor[], attempted to kill another person, with intent to:
a. prevent the attendance and testimony of any person in an official proceeding; and
b. prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense.
2. In or about October 2008, . . . WILLIAM LLOYD MUSIC . . ., as principal[] and aider[] and abettor[], used physical force and the threat of physical force and attempted to do so with intent to:
a. influence, delay and prevent the testimony of a person in an official proceeding;
b. cause and induce a person to withhold testimony from an official proceeding; and
c. hinder, delay, and prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission of a Federal offense.
3. All in violation of Title 18, United States Code, Sections 2 and 1512(a).

Indictment 3-4, ECF No. 5.

         In exchange for Music's plea of guilty, the government agreed to dismiss as to him Counts One through Five of the Indictment. In the Plea Agreement, the parties stipulated to the applicability of the sentencing guideline for attempted first degree murder. Music also agreed that “if, for any reason, [his] conviction is set aside, . . . the United States may file, by indictment or information, any charges against [him] which were filed and/or could have been filed concerning the matters involved in ...


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