United States District Court, E.D. Virginia, Alexandria Division
M. BRINKEMA UNITED STATES DISTRICT JUDGE.
the Court is Gary D'Angelo McDuffie's
("McDuffie" or "movant") motion filed
under 28 U.S.C. § 2255, in which he seeks to have his
convictions under Counts 3 and 7 for violating 18 U.S.C.
§ 924(c) vacated in light of recent Supreme Court
precedent. For the reasons stated below, McDuffie's
motion will be granted in part and dismissed in part, and his
conviction under Count 3 will be vacated.
4, 1999, a federal grand jury in the Eastern District of
Virginia returned a 12-count indictment charging McDuffie and
three codefendants with various offenses related to an
alleged robbery scheme. Specifically, McDuffie was charged with
10 counts: conspiracy to commit robbery in violation of 18
U.S.C. § 371 (Count l); federal bank robbery in violation
of 18 U.S.C. § 2113(a) (Counts 2, 4, and 8); 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) (Counts
3, 5, 7, and 9); and witness tampering in violation of 18
U.S.C. § 1512(b)(1) (Count 12). The conspiracy charged
in Count 1 was the predicate crime of violence underlying
Count 3; the bank robberies charged in Counts 4 and 8 were
the predicate crimes of violence underlying Counts 5 and 9,
respectively; and the post office robbery charged in Count 6
was the predicate crime of violence underlying Count 7. See
Indictment [Dkt. No. 14].
August 17, 1999, after a four-day trial, the jury convicted
McDuffie of all ten counts.On November 19, 1999, the Court
sentenced McDuffie to a total of 1, 492 months'
incarceration, consisting of concurrent sentences of 60
months, 292 months, 292 months, 292 months, 292 months, and
120 months of imprisonment as to Counts 1, 2, 4, 6, 8, and
12, respectively, to be followed by four consecutive 25-year
sentences as to Counts 3, 5, 7, and 9. McDuffie was also
sentenced to five total years of supervised release and
ordered to pay restitution and $1, 000 in special
assessments. McDuffie appealed his convictions and sentence,
the Fourth Circuit affirmed, and the Supreme Court denied
certiorari. McDuffie filed an initial motion to vacate under
28 U.S.C. § 2255 on June 26, 2003; that motion was
dismissed on December 10, 2003, and the court of appeals
declined to issue a certificate of appealability and
dismissed McDuffie's appeal. He filed a second §
2255 motion on February 5, 2016, which was dismissed without
prejudice for failure to secure authorization from the court
15, 2016, the Office of the Federal Public Defender was
appointed to represent McDuffie 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. On June 27, 2016, the court of appeals authorized
McDuffie to file a second or successive § 2255 motion
based on the rule announced in Johnson II. McDuffie
then filed the present motion, which argues that his §
924(c) convictions under Counts 3 and 7 should be vacated
because the predicate offenses underlying those counts no
longer qualify as crimes of violence. In October 2016, the 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). In the wake of
Davis, the parties were ordered to supplement their
briefing on whether McDuffie is entitled to § 2255
relief and, if so, what form such relief should take. The
matter is now ripe for decision.
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)(l)(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
Davis, there is no dispute that the residual clause
is unconstitutionally vague and cannot be used to support
McDuffie's § 924(c) convictions. What remains are
the questions whether the predicate offenses underlying
Counts 3 and 7-conspiracy to commit robbery and post office
robbery, respectively-qualify as crimes of violence under
§ 924(c)'s force clause. If they so qualify,
McDuffie's convictions remain valid, and his § 2255
motion must be dismissed. If not, those convictions must be
case law sets forth the methodology the Court must employ in
answering those questions. 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" 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
first question is easily answered. The predicate offense
underlying Count 3 was conspiracy in violation of § 371
as charged in Count 1. Section 371 makes it a crime for
"two or more persons [to] conspire ... to commit any
offense against the United States" so long as one of the
conspirators "do[es] any act to effect the object of the
conspiracy." 18 U.S.C. § 371. The indictment
alleged that McDuffie and his coconspirators agreed to commit
several federal offenses: federal bank robbery, post office
robbery, and Hobbs Act robbery. But as recent case law from
the Fourth Circuit has underscored, there is a critical
distinction between conspiracy offenses and substantive
offenses which are the objects of a conspiracy, at least with
respect to § 924(c)(3)(A)'s force clause. "To
prove a conspiracy under 18 U.S.C. § 371, the government
must establish an agreement to commit an offense, willing
participation by the defendant, and an overt act in
furtherance of the conspiracy." United States v.
Tucker, 376 F.3d 236, 238 (4th Cir. 2004). In other
words, a conspiracy offense requires only an agreement to
commit an offense and an overt act taken in furtherance of
the conspiracy; the offense need not have been committed, and
the overt act can be any "outward objective action ...
which evinces th[e] conspiracy," United States v.
O'Connor, 158 F.Supp.2d 697, 723 n.49 (E.D. Va.
2001). For this reason, the Fourth Circuit has recently
clarified that although substantive Hobbs Act robbery
qualifies as a crime of violence under § 924(c)(3)(A),
see United States v. Mathis, Nos. 16-4633 et al.,
slip op. at 37 (4th Cir. July 31, 2019), conspiracy to commit
Hobbs Act robbery does not so qualify because an agreement to
commit the offense "does not invariably require the
actual, attempted, or threatened use of physical force,"
United States v. Simms, 914 F.3d 229, 233-34 (4th
Cir. 2019). See also United States v. White, 571
F.3d 365, 369 (4th Cir. 2009) (holding that criminal
conspiracy under North Carolina law, which requires the
government to prove that the defendant and another entered
into an agreement to commit an offense and intended that the
agreement be carried out, is not a "violent felony"
for purposes of the similarly worded force clause in 18
U.S.C. § 924(e)(2)(B)(i)). The same analysis holds true
for conspiracy to commit federal bank robbery or post office
robbery. Because a defendant may be convicted of § 371
conspiracy even if the government does not prove any actual,
attempted, or threatened use of force, § 371 does not
qualify as a crime of violence under § 924(c)(3)'s
force clause, and McDuffie's conviction under Count 3
light of this clear precedent, the government agrees that
Count 3 should be vacated after Davis.
"Although in most cases the government would seek
resentencing when a count of conviction is vacated, the
government does not believe that resentencing is warranted
here" in light of the substantial terms of imprisonment
to which McDuffie will remain subject. Gov't's Suppl.
Mem. on Davis v. United States [Dkt. No. 199] 10.
McDuffie did not state a different view in his reply to the
government's supplemental memorandum. The Court agrees
that given the particular circumstances of McDuffie's
sentence, a full de novo resentencing would be a
poor use of resources. Accordingly, absent any objection from
movant, the Court will simply vacate Count 3, amend the