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United States v. McCall

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

September 24, 2019

UNITED STATES OF AMERICA,
v.
HARRY RHYNE McCALL, Defendant.

          MEMORANDUM OPINION (GRANTING § 2255 MOTION)

          HENRY E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE

         Harry Rhyne McCall, a federal inmate proceeding with counsel filed this successive 28 U.S.C. § 2255 Motion ("§ 2255 Motion, " ECF No. 1166) arguing that his firearm conviction is invalid under Johnson v. United States, 135 S.Ct. 2551 (2015).[1]The Government initially filed a Motion to Dismiss the § 2255 Motion contending that it is barred by the relevant statute of limitations. (ECF No. 1170.) Thereafter, the Court ordered further briefing. In its most recent Supplemental Memorandum, the Government contends that McCall's claim lacks merit. (ECF No. 1191.) For the reasons discussed below, the § 2255 Motion will be granted.

         I. PERTINENT PROCEDURAL HISTORY

         As relevant here, a jury found McCall guilty of: one count of conspiracy to violate R.I.C.O., in violation of 18 U.S.C. § 1962(d) (Count One);[2] conspiracy to commit violence in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(6) (Count Two); violence in aid of racketeering, and aiding and abetting ("VICAR"), in violation of 18 U.S.C. § 1959(a)(3) and 2 (Count Three); and, possession of firearms in furtherance of a crime of violence, and aiding and abetting, in violation of 18 U.S.C. § 924(c) and 2, to wit, violence in the aid of racketeering as charged in Count Three (Count Four). (ECF No. 711, at 5-6; see ECF No. 385, at l-44.)[3] At issue here are solely Counts Three and Four.

         On April 9, 2011, the Court sentenced McCall to 97 months each on Counts One and Three to be served concurrently, 36 months on Count Two to be served concurrently, and 60 months on Count Four to be served consecutively. (J. 2, ECF No. 826.) By Memorandum Opinion and Order entered on August 29, 2014, the Court denied McCall's first 28 U.S.C. § 2255 motion. (ECF Nos. 1091, 1092.)

         On June 17, 2016, the Fourth Circuit granted McCall permission to file a successive § 2255 motion. (ECF No. 1165.) Thereafter, on June 30, 2016, McCall filed his § 2255 Motion.

         II. ANALYSIS

         A. Johnson and Progeny

         In Johnson, the Supreme Court held "that imposing an increased sentence under the residual clause of the Armed Career Criminal Act [("ACCA")] violates the Constitution's guarantee of due process." 135 S.Ct. at 2563. The Johnson Court concluded that the way the residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), defined "violent felony" was unconstitutionally vague because the clause encompassed "conduct that presents a serious potential risk of physical injury to another, " which defied clear definition. Id. at 2557-58 (citation omitted). Subsequently, in Welch v. United States, 136 S.Ct. 1257, 1268 (2016), the Supreme Court held that "Johnson announced a substantive rule [of law] that has retroactive effect in cases on collateral review." Id. at 1268.

         In his § 2255 Motion, McCall asserts that after Johnson, committing violence in aid of racketeering can no longer qualify as crime of violence under 18 U.S.C. § 924(c)(3), and thus, his conviction for Count Four must be vacated. Although McCall was not sentenced pursuant to ACCA, he asserts that the residual clause of § 924(c) is materially indistinguishable from the ACCA residual clause (18 U.S.C. § 924(e)(2)(B)(ii)) that the Supreme Court in Johnson struck down as unconstitutionally vague.

         Title 18 U.S.C. section 924(c)(1)(A) provides for consecutive periods of imprisonment when a defendant uses or carries a firearm in furtherance of a crime of violence. The baseline additional period of imprisonment is five years. 18 U.S.C. § 924(c)(1)(A)(i). If the defendant brandishes the firearm, the additional period of imprisonment increases to at least seven years. Id. § 924(c)(1)(A)(ii). And, if the defendant discharges the firearm, the additional period of imprisonment increases to at least ten years. Id. § 924(c)(1)(A)(iii).

         At the time of McCalPs convictions, the United States could demonstrate that an underlying offense constituted a crime of violence if it established that the offense is a felony and satisfies one of two requirements. Namely, the statute defined a crime of violence as any felony:

(A) [that] has as an element the use, attempted use, or threatened use of physical force against the person or property of another [(the "Force Clause")], or
(B) 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 [(the "Residual Clause")].

Id. § 924(c)(3). The Supreme Court recently invalidated the Residual Clause. United States v. Davis, 139 S.Ct. 2319, 2336 (2019) (holding that "§ 924(c)(3)(B) is unconstitutionally vague").

         McCall contends that the VICAR offense in Count Three no longer qualifies as a predicate violent felony because the Residual Clause has been invalidated and the VICAR offense fails to satisfy the Force Clause. The Government disagrees, and argues that McCall's:

conviction was predicated on a conviction for a violent crime in aid of racketeering (VICAR), in violation of 18 U.S.C. § 1959(a). More specifically, Count Four of the superseding indictment expressly incorporated Count Three as the predicate crime of violence. Count Three, in turn, charged [McCall] with assault with a dangerous weapon in aid of racketeering, and aiding and abetting the same, in violation of 18 U.S.C. § 1959(a)(3) and 2, as well as Va. Code §§ 18.2-22, 18.2-51, and 18.2-282. Because Count Three is a valid predicate crime of violence under 18 U.S.C. § 924(c)(3)(A) sufficient to support Count Four, the defendant is not entitled to relief.

(Supp'l Mem. 5.) The Court is constrained to disagree. As discussed below, although Count Three charged a substantive, federal VICAR offense, that conduct was based upon a conspiracy to commit certain Virginia state offenses.

         B. Categorical and Modified Categorical Approach

         To determine whether a crime requires the use, attempted use, or threatened use of violence force, courts generally apply the categorical approach. See Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). This approach involves two steps. First, the Court must "distill a 'generic definition' of the predicate offense." United States v. Norman, - F.3d -, No. 18-4214, 2019 WL 3819314, at *3 (4th Cir. Aug. 15, 2019) (citation omitted). Second, the Court must "determine whether the conviction at issue constitutes a conviction of that generic offense." Id. (citation omitted). Under this approach, the court must "analyze only the elements of the offense in question, rather than the specific means by which the defendant committed the crime." United States v. Evans, 848 F.3d 242, 246 (4th Cir) (citation omitted), cert, denied, 137 S.Ct. 2253 (2017). In other words, "[a] court assesses whether a crime qualifies as a violent felony in terms of how the law defines the offense and not in terms of how an individual might have committed it on a particular occasion." Johnson, 135 S.Ct. at 2557 (internal quotation marks omitted) (citation omitted). "When 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 under the force clause." United States v. Simms, 914 F.3d 229, 233 (4th Cir. 2019).

         The categorical approach applies where the predicate statute is indivisible, or where the statute "does not set out elements of the offense in the alternative, but which may nevertheless broadly criminalize qualitatively different categories of conduct." United States v. Royal, 731 F.3d 333, 340 (8th Cir. 2013). In a "narrow range of cases, involving statutes that are comprised of multiple, alternative versions of the crime, we apply the modified categorical approach." United States v. Mathis, 932 F.3d 242, 264 (4th Cir. 2019) (citations omitted) (internal quotation marks omitted). For these divisible statutes, the Court "review[s] certain underlying documents, including the indictment, to determine what crime, with what elements, formed the basis of a defendant's conviction." Id. (citations omitted) (internal quotation marks omitted).

         C. The VICAR ...


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