Simons v. United States

RICARDO SIMONS, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 1:16-cv-764 (LMB)

Crim. No. 1:14-cr-122-1 (LMB)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

June 30, 2020

MEMORANDUM OPINION

Before the Court is Ricardo Simons's ("Simons" or "movant") Motion to Vacate Conviction under 28 U.S.C. § 2255 ("Motion to Vacate"), in which he argues that his conviction under Count 1 for violating 18 U.S.C. § 924(c) must be vacated in light of recent Supreme Court precedent. For the reasons stated below, Simons's Motion to Vacate will be dismissed.¹

I.

On January 16, 2014, Virginia law enforcement authorities arrested Simons in connection with his activities as a member of the Nine Trey Gangsters ("NTG"), which is a criminal street gang and a subset of the United Blood Nation gang. [Dkt. No. 12]. Specifically, he was charged in Fairfax County General District Court with malicious wounding in violation of Va. Code § 18.2-51; use of a firearm in the commission of a felony in violation of Va. Code § 18.2-53.1; and criminal street gang participation in violation of Va. Code § 18.2-46.2. Id. ¶ 42. All of these violations were alleged to have occurred on May 3, 2013. Id. ¶ 42. On April 8, 2014, a writ of habeas corpus ad prosequendum was issued by this court, which commanded the state authoritiesto turn over defendant to the United States Marshals Service to appear before the court on criminal allegations.

On April 21, 2014, Simons was transferred to this court, waived indictment, and pleaded guilty to a two-count criminal information charging him with carrying, brandishing, and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) (Count 1); and conspiracy to commit robbery in violation of 18 U.S.C. § 1951 (Count 2). [Dkt. Nos. 3, 4, 7]. The criminal information described the predicate crime of violence for Count 1 as "assaulting J.W. with a dangerous weapon in aid of racketeering" on May 3, 2013, but did not reference a particular state or federal statute. [Dkt. No. 4] at 1. Two days after movant's guilty plea, his state court charges related to the events of May 3, 2013 were nolle prossed. [Dkt. No. 12] ¶ 42.

In the Statement of Facts accompanying the Plea Agreement, Simons admitted to the following facts:

On May 3, 2013, Ricardo Simons and the line-up's low-stain, an NTG term for the second-in-command, were in Dumfries, Virginia discussing J.W. J.W. was an NTG member that had offended the gang by switching to another set of the United Blood Nation. The low-stain decided something had to be done about J.W. and his lack of allegiance to NTG. The defendant and the low-stain drove in the defendant's car to meet J.W. near the Landmark Mall in Fairfax County, Virginia. The defendant and the higher-ranking NTG member were both armed with firearms and confronted J.W. in a parking garage. The defendant told J.W. to lay down on the ground. The low-stain directed the defendant to 'take care of it.' The defendant fired his gun in the direction of J.W. J.W. was struck in the neck and hospitalized. The defendant fired at J.W. to maintain or increase his position in the gang.

Id. ¶ 2.

On July 11, 2014, Simons was sentenced to a total of 150 months' incarceration, consisting of 30 months' incarceration as to Count 2 and 120 months' incarceration as to Count 1, to run consecutive to the sentence for Count 2, to be followed by five years of supervisedrelease. [Dkt. No. 18]. Movant did not appeal either his convictions or his sentence. On January 12, 2018, his sentence was reduced to a total of 90 months' imprisonment, consisting of 30 months as to Count 2 and 60 consecutive months as to Count 1.

On June 25, 2016, through counsel, Simons filed the instant Motion to Vacate, arguing that his § 924(c) conviction should be vacated in light of Johnson v. United States, 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 2557-63.² Movant argued that although the criminal information did not specify the statute on which his predicate offense for Count 1 was based, the relevant offense was likely malicious wounding under Va. Code. § 18.2-51, because Count 1 referenced the events of May 3, 2013, and Simons was charged in state court with violating Va. Code § 18.2-51 on that same date. Simons further argued that under Johnson, malicious wounding in violation of Va. Code § 18.2-51 no longer qualifies as a "crime of violence" under § 924(c).³ On August 23, 2016, the government filed amotion to dismiss the Motion to Vacate, arguing that the Motion to Vacate was time barred under 28 U.S.C. § 2255(f)(3) and reserving all other defenses and arguments, to which movant filed an opposition.⁴ On October 31, 2016, the proceedings were stayed to await further guidance from the Fourth Circuit and the Supreme Court.

On April 17, 2018, the Supreme Court held that the residual clause of 18 U.S.C. § 16's definition of "crime of violence"—which is nearly identical to § 924(c)(3)'s residual clause—is unconstitutionally vague. Sessions v. Dimaya, 138 S. Ct. 1204, 1210 (2018). In the wake of Sessions, the stay was lifted, and the parties filed supplemental briefing. In his 2018 brief, movant changed positions with respect to which offense was the predicate for Count 1. Specifically, movant argued that instead of Va. Code § 18.2.-51, the relevant predicate offense was movant's violation of 18 U.S.C. § 1959(a)(3), which prohibits "assault with a dangerous weapon" or "assault resulting in serious bodily injury," and which movant contends does not constitute a "crime of violence" under § 924(c). The government disagreed, arguing that movant's predicate offense "necessarily was a violation of Virginia Code § 18.2.-51" for the reason described in movant's Motion to Vacate. The government contended that this conclusion was further supported by Count 1's exclusion of any allegation that the predicate offense occurred within the special maritime and territorial jurisdiction of the United States. The government further argued that the issue of which statutory violation was the predicate offensefor Count 1 is of little practical import, because both violations constitute crimes of violence under § 924(c).

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). The parties were ordered to supplement their briefing on whether movant would be entitled to § 2255 relief and, if so, what form such relief should take. The parties filed additional briefing, and the Motion to Vacate is ripe for review.⁵

II.

Section 924(c) forbids the use, carrying, or brandishing of a firearm "during and in relation to any crime of violence." 18 U.S.C. § 924(c)(1)(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 movant's § 924(c) conviction. What remains is the question of whether the predicate offense underlying Count 1, assault with a dangerous weapon in aid ofracketeering, qualifies as a crime of violence under the force clause and can sustain movant's § 924(c) conviction in Count 1.

Well-established case law sets forth the methodology the Court must employ in answering this question. 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"⁶ 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.), cert. denied, 140 S. Ct. 304 (2019). Although a court employing the categorical approach may not consider the defendant's actual conduct, if "the criminal statute is 'divisible'—that is, if 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) (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.

Although the government argues that the predicate offense for Count 1 "necessarily was a violation of Virginia Code § 18.2-51," [Dkt. No. 42] at 17, there is no support for thatproposition in the criminal information, which does not reference that, or any other, state statute.⁷ Accordingly, the Court will instead consider the only predicate offense explicitly listed in Count 1: assault with a dangerous weapon in aid of racketeering, which appears to be in violation of 18 U.S.C. § 1959.⁸

18 U.S.C. § 1959 lists elements in the alternative, defining different offenses based on the predicate crime:

(a) Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or

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