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McDuffie v. United States

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

August 21, 2019

GARY D'ANGELO MCDUFFIE, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE.

         Before 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.

         I.

         On June 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.[1] Specifically, McDuffie was charged with 10 counts: conspiracy to commit robbery in violation of 18 U.S.C. § 371 (Count l);[2] 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].[3]

         On August 17, 1999, after a four-day trial, the jury convicted McDuffie of all ten counts.[4]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.[5] 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 of appeals.

         On June 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.[6] 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).[7] 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.[8]

         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)(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 "residual" clause.

         After 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 vacated.

         Well-established 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"[9] 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.

         A.

         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 cannot stand.

         In 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 ...


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