United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON UNITED STATES DISTRICT JUDGE
the Court is Defendant Brennan Smith's ("Defendant
Smith") Motion to Dismiss Count Seven of the superseding
indictment. ECF No. 155. For the reasons set forth below, the
Motion is DENIED.
BACKGROUND & PROCEDURAL HISTORY
March 6, 2019, Defendant Smith and Defendant Darrius A.
Heuser-Whitaker ("Defendant Heuser-Whitaker,"
collectively "Defendants"), along with eight other
individuals, were named in a Superseding Indictment. ECF No.
141. Defendant Smith is charged with Count One, Conspiracy to
Interfere with Commerce by Means of Robbery ("Hobbs Act
Robbery"), in violation of 18 U.S.C. § 1951(a);
Count Six, Attempted Hobbs Act Robbery, in violation of 18
U.S.C. §§ 2, 1951(a); and Count Seven, Using and
Carrying a Firearm During and in Relation to a Crime of
Violence, in violation of 18 U.S.C. §§ 2,
924(c)(1)(A). Defendant Heuser-Whitaker is charged with Count
One, Conspiracy to Commit Hobbs Act Robbery; Count Four,
Hobbs Act Robbery; Count Five, Using and Carrying a Firearm
During and in Relation to a Crime of Violence; Count Six,
Attempted Hobbs Act Robbery; and Count Seven, Using and
Carrying a Firearm During and in Relation to a Crime of
Violence. Only Counts One, Six, and Seven are relevant to the
Motion to Dismiss.
Superseding Indictment alleges that Defendants and eight
other individuals, along with other unindicted
co-conspirators, conspired to commit a series of grocery
store robberies. ECF No. 141 at 2-3. The alleged conspiracy
involved a team of six individuals for each robbery,
including inside look-outs, outside look-outs, a getaway
driver, and two gunmen armed with semiautomatic weapons.
Id. at 2. In total, the group allegedly committed or
attempted to commit three robberies: the September 25, 2018
robbery of a Food Lion; the September 29, 2018 robbery of a
second Food Lion; and the October 3, 2018 attempted robbery
of a Harris Teeter. See generally Id. at 4-7.
March 14, 2019, Defendant Smith filed a Motion to Dismiss
Count Seven of the superseding indictment. ECF No. 155. On
March 27, 2019, the Government filed its response in
opposition. ECF No. 168. On March 29, 2019, Defendant
Heuser-Whitaker filed a Motion to Adopt Defendant Smith's
motion, ECF No. 169, which the Court granted on April 3,
2019. ECF No. 175. Since then, the Supreme Court
of the United States issued an opinion in United States
v. Davis, 139 S.Ct. 2319 (2019). Based on this new
directly controlling precedent, the Court ordered
supplemental briefing on the effect of this case on June 25,
2019. ECF No. 218. The Government filed its brief on July 9,
2019. ECF No. 227. Defendant Smith filed his on July 10,
2019. ECF No. 228.
Rule of Criminal Procedure 12(b)(3) allows a defendant to
move to dismiss the indictment for failure to state an
offense before trial. To overcome such a motion, the
indictment must include every essential element of the
offense. United States v. Perry, 757 F.3d 166, 171
(4th Cir. 2014). In general, it is "sufficient that an
indictment set forth the offense in the words of the statute
itself." Id. (internal quotation marks
omitted). Furthermore, if the indictment meets this standard,
it "is valid on its face" and the court may not
"review the sufficiency of evidence supporting" the
indictment because a valid "indictment returned by a
legally constituted and unbiased grand jury" is
"enough to call for trial of the charges on the
merits." United States v. Wills, 346 F.3d 476,
488-89 (4th Cir. 2003).
Section 924(c) and Crimes of Violence
Seven in the Superseding Indictment charges Defendants with
Using and Carrying a Firearm During and in Relation to a
Crime of Violence, in violation of 18 U.S.C. §
924(c)(1)(A). This statute subjects any individual "who,
during and in relation to any crime of violence ... for which
the person may be prosecuted in a court of the United States,
uses or carries a firearm" to a mandatory minimum of
five years to be served consecutively to any other sentences
(and even more time if the firearm is brandished or
discharged). Id. A crime of violence is defined as
any felony that "has as an element the use, attempted
use, or threatened use of physical force against the person
or property of another." Id. at §
924(c)(3)(A). While the statute also included any felony
"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" as a
qualifying crime of violence, that provision was struck down
as unconstitutionally vague in Davis. Id. at §
924(c)(3)(B); Davis, 139 S.Ct. 2319 (2019).
Therefore, in order for a crime to qualify as a predicate act
for a § 924(c) count, that crime must satisfy the
definition in § 924(c)(3)(A).
The Categorical and Modified Categorical Approaches
United States Court of Appeals for the Fourth Circuit
("Fourth Circuit") has stated, courts must use the
elements-based categorical approach in determining whether an
offense constitutes a crime of violence as defined in §
924(c)(3)(A). United States v. Simms, 914 F.3d 229,
233 (4th Cir. 2019). A court must "look to whether the
statutory elements of the offense necessarily require the
use, attempted use, or threatened use of physical
force." Id. (citing Leocal v.
Aschroft, 543 U.S. 1, 7-10 (2004)). Courts therefore do
not look to the particular facts of the case. Id.
(citing United States v. McNeal, 818 F.3d 141,
151-52 (4th Cir. 2016)). Accordingly, "[w]hen a statute
defines an offense in a way that allows for both violent and
nonviolent means of commission, that offense is not
'categorically' a crime of violence," and the
offense cannot stand as a predicate act for a §
924(c)(1)(A) count. Id.
when a statute is divisible, meaning that the statutory
language "list[s] elements in the alternative, and
thereby defme[s] multiple crimes," courts must use the
modified categorical approach. Mathis v. United
States,136 S.Ct. 2243, 2249 (2016). The modified
categorical approach requires a court to "look at a
limited class of documents from the record," id
at 2245, specifically "the terms of the charging
document, the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the factual
basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information."
Shepard v. United States,544 U.S. 13, 26 (2005).
After consulting these documents, the Court must then
determine "what crime, with what elements, a defendant
[is charged with]." Mathis, 136. Ct. at 2249.
However, even though the modified categorical approach
involves peeking behind the curtain and ...