United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING § 2255
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE
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).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.
PERTINENT PROCEDURAL HISTORY
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); 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.) At issue here are solely Counts Three and
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.)
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
Johnson and Progeny
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.
§ 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.
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).
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
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").
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.
Categorical and Modified Categorical Approach
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).
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).
The VICAR ...