United States v. Smith

104 F.4th 314

UNITED STATES of America, Appellee v. Gerald SMITH, Appellant

No. 22-3033

Consolidated with 22-3080

United States Court of Appeals, District of Columbia Circuit

Argued December 14, 2023

Decided June 14, 2024

Appeals from the United States District Court for the District of Columbia (No. 1:95-cr-00154-8)

Gregory Stuart Smith, appointed by the court, argued the cause and filed the briefs for appellant.

Michael E. McGovern, Assistant U.S. Attorney, argued the cause for appellee.

With him on the brief were Chrisellen R. Kolb and Elizabeth H. Danello, Assistant U.S. Attorneys.

Before: Millett and Pan, Circuit Judges, and Randolph, Senior Circuit Judge.

Millett, Circuit Judge:

Three decades ago, Gerald Smith was convicted of murder, kidnapping, and drug trafficking charges. Under the then-mandatory sentencing guidelines, he was sentenced to multiple life sentences on his federal-law convictions, life without parole on several murder convictions under District of Columbia law, and a further term of 65 years for various "crimes of violence," 18 U.S.C. § 924(c)(3), set to run consecutively to his life sentences.

In 2018, Congress passed the First Step Act, which allows courts to resentence defendants convicted for certain drug crimes that carry lighter sentences today than at the time of sentencing. Then, in 2019, the Supreme Court held unconstitutionally vague one aspect of the "crime-of-violence" definition set forth in 18 U.S.C. § 924(c)(3). See United States v. Davis, 588 U.S. 445, 470, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019). Smith asks for vacatur of his crime-of-violence convictions and for First Step Act resentencing for other convictions. The district court denied both forms of relief. We affirm in all relevant respects.¹

I

A

Federal law imposes enhanced punishment for the use of a firearm in connection with a federal "crime of violence or drug trafficking crime[.]" 18 U.S.C. § 924(c)(1)(A). Specifically, in addition to any sentence imposed for an underlying crime, Section 924(c) imposes an additional sentence, with minimums from 5 to 30 years if the underlying crime is a "crime of violence" or a drug-trafficking crime and involved a specified use of certain firearms. Id. § 924(c)(1)(A)-(C). Sentences under Section 924(c) may not run concurrently with any other sentence, including that of the underlying crime of violence or drug trafficking crime. Id. § 924(c)(1)(D)(ii). That means that a conviction under Section 924(c) requires "long prison sentences" on top of whatever other sentence a defendant already faces. Davis, 588 U.S. at 448, 139 S.Ct. 2319.

This case implicates Section 924(c)'s application to a "crime of violence," which is defined as:

an offense that is a felony and—

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, 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.

18 U.S.C. § 924(c)(3)(A)-(B). Clause (A) is commonly referred to as the "elements clause," while Clause B is known as the "residual clause."

The Supreme Court invalidated Section 924(c)'s residual clause as unconstitutionally vague in United States v. Davis, 588 U.S. 445, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019). As a result, Section 924(c)'s enhanced penalty now applies only if the relevant offense satisfies the elements clause's requirement that the crime include as an element the actual, attempted, or threatened use of physical force.

To determine whether a particular conviction satisfies the elements clause, courts "apply a 'categorical approach' " because the text of the elements clause focuses on the legal "elements" of the underlying crime, not an individual's conduct in committing it. United States v. Taylor, 596 U.S. 845, 850, 142 S.Ct. 2015, 213 L.Ed.2d 349 (2022); id. (The elements clause "precludes * * * an inquiry into how any particular defendant may commit the crime."). Consequently, in applying the elements clause, courts must determine "whether the federal felony at issue 'has as an element the use, attempted use, or threatened use of physical force.' " Id. (quoting 18 U.S.C. § 924(c)(3)(A)).

Several other provisions of federal law employ similarly or even identically worded elements clauses. See, e.g., 18 U.S.C. § 924(e)(2)(B)(i) (defining a "violent felony" under the Armed Career Criminal Act ("ACCA") as a felony offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another"); id. § 921(a)(33)(A)(ii) (defining "the term 'misdemeanor crime of domestic violence' " to include an offense that, among other things, "has, as an element, the use or attempted use of physical force"); see also UNITED STATES SENT'G GUIDELINES MANUAL § 4B1.2(a)(1) (defining "crime of violence" to mean any crime punishable by more than one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another"). Cases interpreting these other provisions provide helpful guideposts in our application of Section 924(c)(3)(A). See, e.g., United States v. Carr, 946 F.3d 598, 604 (D.C. Cir. 2020).

B

Concerned with sentencing disparities between powder and crack cocaine offenses, Congress passed the 2010 Fair Sentencing Act, which "raised the crack-cocaine threshold quantities for triggering certain penalty ranges" for various drug convictions. United States v. White, 984 F.3d 76, 80 (D.C. Cir. 2020); see Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372 (2010). Those changes did not apply retroactively. White, 984 F.3d at 80.

Congress subsequently authorized courts to grant retroactive relief through the First Step Act of 2018, which authorized sentencing courts to "impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act * * * were in effect at the time the covered offense was committed." First Step Act, Pub. L. 115-391, § 404(b), 132 Stat. 5194, 5222 (2018) (emphasis added), 21 U.S.C. § 841 note (Application of Fair Sentencing Act); see White, 984 F.3d at 80 (The First Step Act "allow[ed] persons to seek reduced sentences if they committed certain 'covered offense[s]' * * * prior to the enactment of the Fair Sentencing Act.").

The First Step Act defines the "covered offense[s]" to which it applies as any "violation of a Federal Criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010[,] * * * that was committed before" the Fair Sentencing Act's enactment. 21 U.S.C. § 841 note (Application of Fair Sentencing Act). The Act underscores, though, that "[n]othing in this section shall be construed to require a court to reduce any sentence pursuant to this section." Id.

C

In 1995, a grand jury indicted Smith on 21 separate charges under federal law and the District of Columbia code, including drug distribution, murder, and kidnapping. The charges arose from Smith's role as an "enforcer" for the Fern Street Crew. A jury convicted Smith on all charges.

The then-mandatory Sentencing Guidelines required that Smith be sentenced to life imprisonment on several of his federal charges, including drug conspiracy under 21 U.S.C. § 846, RICO conspiracy under 18 U.S.C. §§ 1962(d) and 1963(a), and continuing criminal enterprise ("CCE") murder and kidnapping under 21 U.S.C. § 848. Based on the CCE convictions, Smith also received three twenty-year sentences and one five-year sentence for "crimes of violence" under 18 U.S.C. § 924(c), which ran consecutive to (i.e., in addition to) his life sentences. Smith was separately sentenced to life without parole for his murder convictions under the District of Columbia Code.

On Smith's direct appeal, this court upheld all of Smith's convictions and his sentence, with the exception of one felony-murder conviction under the D.C. Code and one attempted robbery conviction. United States v. Sumler, 136 F.3d 188, 189 n.1 (D.C. Cir. 1998).

After the Supreme Court struck down Section 924(c)'s residual clause as unconstitutional, Smith filed a Section 2255 petition arguing that the four CCE convictions underlying his Section 924(c) convictions do not qualify as "crimes of violence" under Section 924(c)'s elements clause. United States v. Smith, 605 F. Supp. 3d 1, 15 (D.D.C. 2022). He argued that the elements of his underlying offenses did not categorically require the actual, attempted, or threatened use of force against another. Id. at 17-24.

The government agreed with Smith that his federal kidnapping conviction could be accomplished without force and therefore did not satisfy the elements clause, and so the associated Section 924(c) conviction should be vacated. Smith, 605 F. Supp. 3d at 17. But the government argued that Smith's crime-of-violence convictions for CCE murder each satisfied Section 924(c)'s elements clause. Id. at 18.

The district court agreed with the government, vacating Smith's kidnapping "crime of violence" conviction but denying Smith's motion as to the three CCE-murder convictions. Smith, 605 F. Supp. 3d at 24. The court also read the CCE murder statute to require intentional action. In doing so, the court rejected Smith's argument that a conviction for CCE murder could be based on a mens rea of mere recklessness, which Smith claimed would not satisfy Section 924(c). Id. at 20-23. The court likewise rejected Smith's arguments that a conviction for CCE murder could be accomplished without the use of force. Id. at 23-24. The district court subsequently granted Smith a certificate of appealability as to these rulings.

While Smith's Section 2255 petition was pending in district court, Smith also filed a motion for a sentence reduction under Section 404(b) of the First Step Act. He argued that several of his convictions were "covered offenses," and that resentencing on any of them could justify resentencing on several of his other...