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United States v. Doyle

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

July 16, 2019

UNITED STATES OF AMERICA,
v.
DEVONTA DOYLE, et al, Defendants.

          MEMORANDUM OPINION AND ORDER

          RAYMOND A. JACKSON UNITED STATES DISTRICT JUDGE

         Before 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.

         I. BACKGROUND & PROCEDURAL HISTORY

         On 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.

         The 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.

         On 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.[1] 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.

         II. LEGAL STANDARD

         Federal 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).

         III. DISCUSSION

         A. Section 924(c) and Crimes of Violence

         Count 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).

         B. The Categorical and Modified Categorical Approaches

         As the 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.

         However, 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 ...


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