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Dorsey v. United States

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

August 21, 2019

ERIC SYLVESTER DORSEY, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE.

         Before the Court is Eric Sylvester Dorsey's ("Dorsey" or "movant") motion filed under 28 U.S.C. § 2255, in which he seeks to have his conviction for violating 18 U.S.C. § 924(c) vacated in light of recent Supreme Court precedent. For the reasons stated below, Dorsey's § 2255 motion will be dismissed.

         I.

         On June 4, 1999, a federal grand jury in the Eastern District of Virginia returned a 12-count indictment charging Dorsey and three codefendants with various offenses related to an alleged robbery scheme.[1] Specifically, Dorsey was charged with conspiracy to commit robbery in violation of 18 U.S.C. § 371 (Count 1); robbery of a U.S. Post Office in violation of 18 U.S.C. § 2114(a) (Count 6); using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count 7); possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count 10); and possession of a sawed-off shotgun in violation of 26 U.S.C. § 5861(c) (Count 11). The indictment explicitly identified the post office robbery charged in Count 6 as the predicate crime of violence on which the § 924(c) charge in Count 7 was based. See Indictment [Dkt. No. 14] 15.[2]

         On August 17, 1999, after a four-day jury trial, the jury convicted Dorsey of all five counts.[3] On November 19, 1999, the Court sentenced Dorsey to a total of 322 months' incarceration, consisting of concurrent sentences of 60 months, 262 months, 180 months, and 120 months of imprisonment as to Counts 1, 6, 10, and 11, respectively, to be followed by a 60-month consecutive sentence as to Count 7. Dorsey was also sentenced to five total years of supervised release and ordered to pay restitution and $500 in special assessments. Dorsey appealed his convictions and sentence, the Fourth Circuit affirmed, and the Supreme Court denied certiorari.

         On June 15, 2016, the Office of the Federal Public Defender was appointed to represent Dorsey for purposes of filing a motion seeking relief based on Johnson v. United States (Johnson II), 135 S.Ct. 2551 (2015), in which the Supreme Court held that the "residual clause" of 18 U.S.C. § 924(e)(2)'s definition of "violent felony" is unconstitutionally vague, see Id. at 2557-63. Dorsey's § 2255 motion argues that his § 924(c) conviction (Count 7) should be vacated because the predicate offense no longer qualifies as a crime of violence. In October 2016, his § 2255 motion was stayed to await further guidance from the Supreme Court and the Fourth Circuit. On June 24, 2019, the Supreme Court held that the residual clause of § 924(c)(3)'s definition of "crime of violence" is also unconstitutionally vague. See United States v. Davis, 139 S.Ct. 2319, 2336 (2019).[4] In the wake of Davis, the stay was lifted, and the parties were ordered to supplement their briefing on whether Dorsey is entitled to § 2255 relief and, if so, what form such relief should take. The matter is now ripe for decision.[5]

         II.

         Section 924(c) prohibits the use, carrying, or brandishing of a firearm "during and in relation to any crime of violence." 18 U.S.C. § 924(c)(1)(A). It further defines "crime of violence" as any felony offense that (A) "has as an element the use, attempted use, or threatened use of physical force against the person or property of another" or (B) "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." Id. § 924(c)(3). Subsection (A) of the definition is known as the "force" clause; subsection (B), the "residual" clause.

         After Davis, there is no dispute that the residual clause is unconstitutionally vague and cannot be used to support Dorsey's § 924(c) conviction. What remains is the question whether the predicate offense underlying Count 7-post office robbery in violation of § 2114(a)- qualifies as a "crime of violence" under § 924(c)'s force clause. If it so qualifies, Dorsey's conviction remains valid, and his § 2255 motion must be dismissed. If not, the conviction must be vacated.

         Well-established case law sets forth the methodology the Court must employ in answering that question. To determine whether a given offense qualifies as a crime of violence under the force clause, courts "use an inquiry known as the 'categorical' approach," in which they "look to whether the statutory elements of the offense necessarily require the use, attempted use, or threatened use of physical force"[6] and "consider only the crime as defined, not the particular facts in the case." United States v. Simms, 914 F.3d 229, 233 (4th Cir. 2019), petition for cert, filed. No. 18-1338 (U.S. Apr. 24, 2019). Although a court employing the categorical approach may not consider the defendant's actual conduct, where "the criminal statute is 'divisible'-that is, [where] it lists 'multiple, alternative elements, and so effectively creates several different... crimes'-the Court may look to 'a limited class of documents, such as indictments and jury instructions, to determine which alternative' served as the predicate offense." Larode v. United States, 356 F.Supp.3d 561, 570 (E.D. Va. 2019) (second alteration in original) (quoting Descamps v. United States, 570 U.S. 254, 257 (2013)); see also United States v. Gomez, 690 F.3d 194, 198 (4th Cir. 2012) (instructing that the modified categorical approach should be used "for the sole purpose of determining which part of the statute the defendant violated").

         III.

         The post office robbery offense at issue in Dorsey's § 924(c) conviction is defined as follows:

A person who assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs or attempts to rob any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United ...

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