Nicholson v. United States

78 F.4th 870

Marvin NICHOLSON (21-1768); Bryan Sorrell (21-1779), Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.

No. 21-1768

No. 21-1779

United States Court of Appeals, Sixth Circuit

Argued: July 20, 2023

Decided and Filed: August 16, 2023

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. Nos. 2:13-cr-20764; 2:19-cv-10600 (Nicholson); 2:19-cv-10420 (Sorrell), Paul D. Borman, District Judge.

ARGUED: Michael J, West, HOGAN LOVELLS US LLP, Washington, D.C., for Appellant in 21-1768. Jeremy Gordon, JEREMY GORDON, PLLC, Mansfield, Texas, for Appellant in 21-1779. Mark Chasteen, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Michael J, West, HOGAN LOVELLS US LLP, Washington, D.C., for Appellant in 21-1768. Jeremy Gordon, JEREMY GORDON, PLLC, Mansfield, Texas, for Appellant in 21-1779. Mark Chasteen, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

Before: GILMAN, LARSEN, and NALBANDIAN, Circuit Judges.

OPINION

NALBANDIAN, Circuit Judge.

An indictment charged motorcycle-gang members Marvin Nicholson and Bryan Sorrell with one count of conspiracy and one count of aiding-and-abetting assault under the Violent Crimes in Aid of Racketeering ("VICAR") statute. At trial, the district court instructed the jury that either of those two offenses could serve as a predicate offense for another count involving the use or carrying of a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c). The jury convicted both Nicholson and Sorrell on those three counts, among others. And we affirmed. Now, under 28 U.S.C. § 2255, they appeal the district court's refusal to vacate their § 924(c) convictions. Because the § 924(c) convictions rested on a valid predicate offense, and because the jury-instruction error on an invalid predicate offense was harmless, we affirm.

I.

As "national enforcer," Marvin Nicholson oversaw gang members like Bryan Sorrell in the Phantom Motorcycle Club ("PMC")—an outlaw motorcycle gang and multi-state racketeering enterprise. United States v. Nicholson, 716 F. App'x 400, 404, 408 (6th Cir. 2017). To grow PMC's reputation as the "toughest" or "baddest" outlaw motorcycle club out there, Nicholson, Sorrell, and the rest of the gang targeted rival clubs in a series of confrontations, forcefully stripping them of their leather biker vests (known as "rags")—"the ultimate sign of disrespect." Id. at 404. And these assaults involved violence and the use of firearms.

When a dispute left a PMC leader feeling disrespected, Nicholson and other leaders got a team together and outlined a plan to locate rival gang members and "take [their] rags by force." Id. at 409. And it didn't take long for the team to gather firearms and drive to a rival clubhouse. A stakeout spanning several hours almost proved unsuccessful. That is, up until Nicholson, Sorrell, and some others spotted a rival gang member, Leon McGee, heading to his vehicle with his girlfriend.

Sorrell and another PMC member approached McGee and attempted to take his rags. When McGee and his girlfriend attempted to get into their vehicle and leave, the PMC members pulled McGee out of his vehicle. And a fight ensued. Sorrell punched McGee. McGee stabbed Sorrell. So Sorrell shot McGee. And he fired multiple times, even striking McGee's face.¹ Nicholson was also "present at the scene of the shooting." Id. at 409.

Weeks later, two PMC members fell victim to a drive-by shooting by a rival gang, and one PMC member died of his wounds. PMC's president wanted revenge. So he held a meeting with Nicholson, Sorrell, and others to plan the murder of three rival gang members as part of a larger scheme to "attack and kill a large number of" other rival members who would later attend the murdered members' funerals. Id. at 409-10. With that as the gameplan, "Nicholson dispensed orders to PMC members to carry out the first murder, and Nicholson and other PMC members began preparations." Id. at 410.

But the plans fell through. Law enforcement executed search warrants on Nicholson's residence and took him into custody. And later, an indictment charged Nicholson and Sorrell with several counts—some arising under VICAR.

Of relevance were Counts Five, Six, and Seven. Count Five charged Nicholson and Sorrell with VICAR aiding-and-abetting assault with a dangerous weapon, in violation of 18 U.S.C. § 1959(a)(3) and 18 U.S.C. § 2. Next, Count Six charged them with VICAR conspiracy—that is, a conspiracy to assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(6). The indictment and jury instructions each specified that Count Five and Count Six related to the same incident—the assault of rival gang member Leon McGee "[o]n or about September 8-9." (R. 201, Indictment, p. 23-24; R. 467, Jury Instructions, PageID 5796, p. 67-68, 71.)

Count Seven charged them with using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). The court instructed that each defendant could be found guilty of this count if, among other things, the jury found that Nicholson and Sorrell had "committed either" a VICAR aiding-and-abetting assault with a dangerous weapon "as charged in Count Five" or a VICAR conspiracy "as charged in Count Six." (R. 467, Jury Instructions, PageID 5796, p. 76.) The court did not instruct the jury to unanimously decide which predicate it relied on—whether that be Count Five, Count Six, or both.

In any event, the jury convicted Nicholson and Sorrell on Counts Five, Six, and Seven, among others. For Count Seven, the district court sentenced them each to 120 months of imprisonment, to be served consecutively to their sentences on the other counts. And in total, the court sentenced Nicholson to 480 months and Sorrell to 252 months of imprisonment.

They both appealed. And this Court affirmed their convictions and sentences. Nicholson, 716 F. App'x at 423. Later, Nicholson and Sorrell moved to vacate their convictions under 28 U.S.C. § 2255. A magistrate judge issued a report and recommendation to deny all claims. And in adopting the recommendation, the district court denied their motions to vacate and declined to grant a certificate of appealability on any of their claims. So Nicholson and Sorrell appealed. This Court granted Nicholson's and Sorrell's separate requests for certificates of appealability, as well as Nicholson's request to expand his certificate of appealability. And we consolidated their appeals.

II.

Under 28 U.S.C. § 2255, a federal prisoner "may move the court which imposed [his] sentence to vacate, set aside or correct the sentence" based on, among a few other things, a claim that the sentence was "imposed in violation of the . . . laws of the United States . . . or [wa]s otherwise subject to collateral attack." 28 U.S.C. § 2255(a). When a district court denies such a motion (as the court did here), we review legal issues de novo and uphold the court's "factual findings . . . unless they are clearly erroneous." Jefferson v. United States, 730 F.3d 537, 544 (6th Cir. 2013) (citation omitted).

III.

Nicholson and Sorrell ("Petitioners") raise two issues on appeal. First, they argue that the district court erred in concluding that Count Seven rested on a valid crime-of-violence predicate under 18 U.S.C. § 924(c). Second, even if the court didn't err, Petitioners argue that we must vacate Count Seven because the jury could have relied on an invalid predicate in reaching its general verdict for that conviction. We'll address each in turn.

A.

Petitioners first argue that we should reverse and vacate their conviction on Count Seven because it was not predicated on a valid crime of violence. The district court instructed the jury that it could convict Petitioners on Count Seven if it found either (1) a VICAR conspiracy or (2) a VICAR aiding-and-abetting assault with a dangerous weapon—both of which the jury separately found Petitioners guilty of in Counts Five and Six. So our first inquiry turns on whether either offense constitutes a "crime of violence," as required by Count Seven.

18 U.S.C. § 924(c) penalizes "any person who, during and in relation to any crime of violence or drug trafficking crime," uses or carries a firearm. 18 U.S.C. § 924(c)(1)(A) (emphasis added). We used to have two subparts under § 924(c)—the "residual clause" and the "elements clause"—that defined the phrase "crime of violence." That is, up until the Supreme Court struck § 924(c)'s "residual clause" as unconstitutionally vague. United States v. Davis, — U.S. —, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019).

So now, we look only to the provision's "elements clause" to define a "crime of violence." And that clause defines the phrase as an "offense that is a felony and . . . has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). With that in mind, now "a predicate offense qualifies as a crime of violence only if use of force is an element of the offense." United States v. Woods, 14 F.4th 544, 552 (6th Cir. 2021), cert. denied, — U.S. —, 142 S. Ct. 910, 211 L.Ed.2d 612 (2022).

Additionally, courts must evaluate whether an offense fits the "elements clause" using the "categorical approach"—meaning that we look to a predicate crime's elements in the abstract, not to "how any particular defendant may commit the crime." United States v. Taylor, — U.S. —, 142 S. Ct. 2015, 2020, 213 L.Ed.2d 349 (2022). We must ask whether the predicate offense in "every" case will have "as an element the use, attempted use, or threatened use of physical force against the person or property of another." Wallace v. United States, 43 F.4th 595, 601 (6th Cir. 2022) (quoting 18 U.S.C. § 924(c)(3)(A)). And the categorical approach requires that the answer to that question be yes. See id.

Using this framework, we must determine whether a...