Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 1 of 22 PageID# 87

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1 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 1 of 22 PageID# 87 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION UNITED STATES OF AMERICA ) ) v. ) Criminal No. 2:15cr110 ) JAMES D. WAITES ) DEFENDANT S REPLY TO GOVERNMENT S RESPONSE TO MOTION TO DISMISS The defendant, James D. Waites, through counsel and pursuant to Local Rule of Criminal Procedure 47(f), submits this Reply to the Response to Defendant s Motion to Dismiss. * * * In Johnson v. United States, the Supreme Court struck down ACCA s residual clause as unconstitutionally vague. 135 S. Ct. 2551, 2557 (2015). Under Johnson, 924(c) s materially indistinguishable residual clause must similarly be stricken as unconstitutional. Thus, the only remaining crime-of-violence definition in 924(c) is the narrower force clause. Despite the Government s confusion over the mens rea requirement, its extensive discussion of armed bank robbery, and its urgings to ignore binding Fourth Circuit precedent, the law is clear: under the categorical approach, Hobbs Act robbery does not qualify under the force clause. Because Hobbs Act robbery is not a crime of violence within the meaning of 924(c), Count 2 fails. I. HOBBS ACT ROBBERY DOES NOT QUALIFY AS A CRIME OF VIOLENCE BECAUSE IT CAN BE VIOLATED WITHOUT THE USE OR THREATENED USE OF VIOLENT PHYSICAL FORCE. Hobbs Act robbery does not categorically qualify as a crime of violence under 924(c) s force clause and the Government s arguments to the contrary are unpersuasive. First, the Government offers no explanation for how taking one s property by a threat to devalue stock is a crime of violence. The Government s silence on this point is deafening. Second, the 1

2 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 2 of 22 PageID# 88 Government confuses two mens rea requirements. The Government argues that 924(c)(3)(A) s crime-of-violence definition is met as long as the predicate offense generally requires a mens rea greater than recklessness. But 924(c)(3)(A) s mens rea requirement deals specifically with the mens rea associated with the threatened use of physical force. To qualify as a crime of violence, the requisite intent with respect to that element must be greater than negligence or recklessness. Here, Hobbs Act robbery can be committed even if the defendant put his victim in fear by accident. Third, the Government raises a non-existent disagreement over the meaning of physical force as a red-herring. Mr. Waites and the Government agree that the Supreme Court s 2010 Johnson decision supplies the definition of physical force. Fourth, the Government relies on dicta from outdated caselaw interpreting statutes not at issue here to support its logic-defying proposition that a defendant cannot cause fear of injury unless he has at least threatened to use violent physical force. According to the Government, causing or threatening to cause bodily injury is equivalent to using or threatening to use violent force. The Fourth Circuit s binding decision in United States v. Torres-Miguel explicitly rejected this argument and the logical fallacy underpinning the Government s position here. 701 F.3d 165 (4th Cir. 2012). The statutes, caselaw, and logic all lead to the same conclusion: Hobbs Act robbery which can be committed by a threat to cause economic injury or, indeed, by no threat at all does not have as a necessary element the threatened use of strong, violent physical force. A. A threat to devalue stock is not a threat to use violent physical force. The categorical approach requires courts to examine the least of the conduct proscribed by a criminal statute to determine whether that offense categorically satisfies the definition of a crime of violence, regardless of the actual conduct alleged against a defendant. Johnson v. 2

3 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 3 of 22 PageID# 89 United States, 559 U.S. 133, 137 (2010). That is why, in his motion to dismiss, Mr. Waites focused on the broad scope of conduct that can violate the Hobbs Act and observed that, Hobbs Act robbery can be accomplished by placing someone in fear of injury to his property. This [ ] does not require violent force within the meaning of Johnson. For example, a threat to poison one s tree or unleash his dog would qualify. It cannot be true that an offense necessarily contemplates at least the threatened use of strong, violent physical force when the offense can be committed by threatening to devalue your stock, 1 create a nuisance near your brother s home, take a bite of this-here stranger s apple, or shear your sister s sheep. (ECF No. 12, 8-9 (footnote 2 in original).) In response, the Government said nothing. Through its silence, the Government has apparently conceded that Hobbs Act robbery can be carried out by threats to devalue intangible property. 2 Accordingly, the statutory elements 1 Threats to inflict economic harm on an intangible asset (like shares of stock) constitute a threat to injure property under 1951 s robbery definition. The Fourth Circuit has sustained an extortion conviction under the Hobbs Act when a union boss threatened to slow down or stop construction projects unless his demands were met. See United States v. Iozzi, 420 F.2d 512, 514 (4th Cir. 1970). In noting that that Hobbs Act robbery, by its terms, encompasses violence against property, the Second Circuit held that [w]hile often the property involved is an existing physical asset, the concept is not limited to tangible things, but includes intangible assets such as rights to solicit customers and to conduct a lawful business. United States v. Arena, 180 F.3d 380, 392 (2d Cir. 1999), abrogated in part on other grounds by Scheidler v. Nat l Org. for Women, Inc., 537 U.S. 393, 403 n.8 (2003). Thus, Hobbs Act robbery can be committed via threats to devalue some intangible economic interest like a contract right or stock holding. 2 Although the Government ignores the Hobbs Act robbery definition s inclusion of threats against property, the Government cites Coke and Blackstone in arguing that common law robbery has always been seen as a heinous felony. (ECF No. 14, 16.) Generalized historical perceptions of whether common law robbery was thought to be violent or heinous do not further the inquiry here. Under the categorical approach, this Court must determine whether the elements of the predicate statutory offense meet another statute s crime-of-violence definition. But it is worth noting that the Government s rhetoric glosses over key differences between historic common law robbery and Hobbs Act robbery. For example, with respect to robbery by threat, the traditional view is that the threat must be of immediate harm, rather than of future harm. 3 W. LaFave, Substantive Criminal Law 20.3 (2d ed. 2003). Also, common law robbery historically required a present threat of immediate personal violence. W.H.D. Winder, Development of Blackmail, 5 Mod. L. Rev. 21, 25 (1941) (emphasis added) available at And, although constructive robbery was later extended under the common law to include threats to property, [t]here is no clear instance of the extortion of property by a threat of damage to property, 3

4 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 4 of 22 PageID# 90 of Hobbs Act robbery do not require that a defendant use or threaten use of strong, violent physical force against another person or his property. For this reason alone, Hobbs Act robbery fails to qualify as a crime of violence under 924(c)(3)(A). B. The Government confuses the mens rea of the underlying offense generally with Leocal s element-specific mens rea requirement: To qualify as a crime of violence, the underlying offense must require the intentional use or threatened use of force. Before identifying the error underlying the Government s mens rea argument, it is important to recognize that Mr. Waites s argument is simple and follows directly from the plain text of the two statutes at issue here: One can put another in fear of injury while taking his property in commerce (and thereby violate the Hobbs Act) without intentionally threatening the victim with the use of violent physical force. If the Court agrees with that proposition, then Hobbs Act robbery does not categorically qualify as a crime of violence. The Supreme Court in Leocal and the Fourth Circuit in Garcia have held that a predicate offense cannot categorically qualify as a crime of violence unless the force element requires an intentional mens rea. Garcia v. Gonzales, 455 F.3d 465, 468 (4th Cir. 2006); see also Leocal v. Ashcroft, 543 U.S. 1, 11 (2004). The Government tries to distinguish Leocal and Garcia by arguing that they dealt with offenses that had a mens rea of recklessness or negligence, but robbery is not such an offense. (ECF No. 14, 7.) The Government s logic is flawed. It confuses the mens rea for a predicate offense generally with the mens rea as applied to the use or threatened use of force required under the crime of violence definition. unaccompanied by circumstances of riot, being treated as robbery. Id. at 29. Even today, courts have held that generic robbery contemplates threats or violence directed at a person, rather than at property. See, e.g., United States v. Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008). Thus, the Government has not just failed to address the specific threat-against-property issue raised in Mr. Waites s motion, it has generally failed to appreciate key distinctions between common law robbery (to which the Government repeatedly refers) and Hobbs Act robbery (the statutory offense at issue here). 4

5 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 5 of 22 PageID# 91 In Leocal, the Government argued that the use of force [in the definition of a crime of violence] does not incorporate any mens rea component. Leocal, 543 U.S. at 9. The Supreme Court rejected that argument. The bedrock principle of Leocal is that to constitute a federal crime of violence an offense must involve the intentional use of force against the person or property of another. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006). In other words, the focus of Leocal is not on mens rea generally, but on mens rea as applied specifically to the force element of a statute. To qualify as a crime of violence under the force clause, the underlying offense must require proof of an intentional use [or threatened use] of force. United States v. Gomez-Leon, 545 F.3d 777, 787 (9th Cir. 2008) (internal quotation marks omitted) (emphasis in original). It is not enough, therefore, that the underlying offense requires some other intentional act; to qualify as a crime of violence, the intentionality must be connected to the use or threatened use of force. For example, in Covarrubias Teposte v. Holder, 632 F.3d 1049 (9th Cir. 2011), the Ninth Circuit held that California Penal Code 246, which prohibits intentionally discharging a firearm into an inhabited building is not a crime of violence under 18 U.S.C. 16 because it is a general intent crime which does not require a specific intent to harm: Given the elements of that statute set by California judicial decisions, we can gather with certainty only that Covarrubias intentionally discharged a gun with reckless disregard as to whether the bullet would hit an inhabited vehicle or dwelling. This creates a risk of injury to other people and damage to property. But it does not involve a substantial risk of using force with intent against persons or property. [T]his subjective awareness of possible injury is not the same as the intentional use of physical force against the person of another. Covarrubias Teposte, 632 F.3d at

6 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 6 of 22 PageID# 92 The inquiry here turns on whether notwithstanding any other mens rea requirement Hobbs Act robbery contain[s] an element that [requires] the intentional employment of physical force against a person or thing or the intentional threatened employment of the same. Garcia, 455 F.3d at 468. Hobbs Act robbery may be a general intent crime, but the use or threatened use of force can be negligent or otherwise unintended. The Government concedes this. But the Government tries to substitute the mens rea applicable to the underlying offense generally for the mens rea connected to the use or threatened use of force. This sleight of hand is unconvincing. The Florida DUI statute at issue in Leocal was a general intent crime. See Mollenberg v. State, 907 So. 2d 554, 556 (Fla. Dist. Ct. App. 2005) (holding that, under Florida law, DUI is a general intent crime ); see also Lamore v. State, 983 So. 2d 665, 669 (Fla. Dist. Ct. App. 2008) (same). But, as the Supreme Court said in Leocal, DUI statutes such as Florida s do not require any mental state with respect to the use of force against another person. 543 U.S. at 13. The use or threatened use of force under Hobbs Act robbery and Florida DUI can be unintentional. Because one can commit Hobbs Act robbery without intentionally using or intentionally threatening to use violent physical force, it fails to qualify categorically as a crime of violence. C. Mr. Waites and the Government agree: The Supreme Court s 2010 Johnson decision defines physical force under 924(c) s force clause. Mr. Waites, the Government, and many circuit courts agree that the term physical force in 924(c)(3)(A) has the meaning given to it by the Supreme Court s 2010 Johnson decision. (See ECF No. 14, 9.) 3 The Government says that Mr. Waites s definition conflicts with 3 Courts of Appeals have consistently held that 16 contemplates destructive, violent force not de minimis force. United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir. 2001); see also Flores-Lopez v. Holder, 685 F.3d 857, 864 (9th Cir. 2012) (requiring use of violent, physical force ); United States v. Serafin, 562 F.3d 1105, 1109 (10th Cir. 2009); Jobson v. Ashcroft, 326 F.3d 367, 373 (2d Cir. 2003); Bazan-Reyes v. I.N.S., 256 F.3d 600, 611 (7th Cir. 2001) ( [T]erm physical force in 18 U.S.C. 16(b) refers to actual violent force. ). Indeed, the 6

7 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 7 of 22 PageID# 93 Johnson s. (Id.) To avoid conflict where there is none, it is best to let Johnson speak for itself: [T]he phrase physical force means violent force that is, force capable of causing physical pain or injury to another person. See Flores v. Ashcroft, 350 F.3d 666, 672 (C.A ) (Easterbrook, J.). Even by itself, the word violent in 924(e)(2)(B) connotes a substantial degree of force. Webster s Second 2846 (defining violent as [m]oving, acting, or characterized, by physical force, esp. by extreme and sudden or by unjust or improper force; furious; severe; vehement... ); 19 Oxford English Dictionary 656 (2d ed. 1989) ( [c]haracterized by the exertion of great physical force or strength ); Black s 1706 ( [o]f, relating to, or characterized by strong physical force ). When the adjective violent is attached to the noun felony, its connotation of strong physical force is even clearer.... The Government argues that we cannot construe 18 U.S.C. 924(e)(2)(B)(i) to reach only offenses that have as an element the use of violent force, because there is no modifier in 924(e)(2)(B)(i) that specifies the degree of physical force required. As we have discussed, however, the term physical force itself normally connotes force strong enough to constitute power and all the more so when it is contained in a definition of violent felony. Johnson (2010), 559 U.S. at The Government asserts that applying Mr. Waites s definition of physical force i.e. Johnson s definition leads to the exclusion of first degree murder from the list of offenses that qualify categorically as crimes of violence. 4 But the Government s parade of horribles Supreme Court in Johnson cited lower court opinions defining physical force under 16 when defining physical force in ACCA. 559 U.S. at 140 (citing Flores, 350 F.3d at 672.) 4 The Government also contends that the Fourth Circuit s construction of D.C. s arson statute in Mbea v. Gonzales, 482 F.3d 276, 280 (4th Cir. 2007), to encompass any influence acting in the natural world, is contrary to the defendant s definition of a crime of violence based on Johnson. The Government is correct that the Supreme Court held that physical force means more than the definition of force drawn from physics. Johnson, 559 U.S. at 138. But that does not necessarily mean that the use of fire to destroy a building does not fall within Johnson s definition of violent physical force. The Government also argues that defendant s theories result in no federal criminal offenses falling within 924(c)(3)(A). (ECF No. 14, 15.) That is not so. Although undersigned counsel has not undertaken an exhaustive review of all federal criminal statutes, numerous offenses contain elements that constitute the use or threatened use of physical force. See, e.g., 18 U.S.C. 2332(c) (engaging in physical violence against U.S. citizens overseas); 18 U.S.C. 36 (drive-by-shooting); 18 U.S.C (interference with 7

8 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 8 of 22 PageID# 94 concerning the murder statute s status under 924(c)(3)(A) results from application of the categorical approach, not from the meaning of physical force. Johnson limits crimes of violence to those crimes that necessarily require the active employment of strong, violent, physical force. 559 U.S. at That a statute (such as the federal murder statute) encompasses conduct outside this definition speaks to the scope of the criminal statute, not to Johnson s physical force definition. For example, murder can be committed through omission failing to feed or provide medical care to an infant or an elderly person. See, e.g., Biddle v. Commonwealth, 141 S.E.2d 710, 714 (Va. 1965) ( The general rule, supported by numerous authorities in England and the United States, is that if death is the direct consequence of the malicious omission of the performance of a duty, such as of a mother to feed her child, this is a case of murder ); Cf. United States v. Calderon-Pena, 383 F.3d 254, 261 (5th Cir. 2004) (en banc) (child endangerment not crime of violence because [c]reating a risk of injury, even when done knowingly or intentionally, is clearly not the same as using or attempting to use physical force against the person of another ). Accordingly, a killing with malice does not in all cases require the active employment of violent physical force. Johnson s definition of physical force is less to blame for this result than the categorical approach, which requires that courts look to the most innocent proscribed conduct. Torres-Miguel, 701 F.3d at 167. It is possible perhaps even likely that a defendant who commits murder or Hobbs Act robbery has used or threatened use of violent physical force. But both statutes also proscribe indirect applications of force or omissions, which do not meet Johnson s definition. The Government insists that Mr. Waites s proposed definition of physical foreign commerce by violence); 18 U.S.C (forcibly breaking into post office). Needless to say, the Court need only decide here whether Hobbs Act robbery categorically qualifies as a crime of violence, not the number of offenses that fall within the force clause. 8

9 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 9 of 22 PageID# 95 force puts murder outside the scope of 924(c)(3)(A), but the Government s discontent arises more from the application of the categorical approach. And, despite other disagreements, both parties agree that the categorical approach applies here. D. The Government s reliance on Castleman and outdated crime-of-violence determinations under other robbery statutes is misplaced: The Court should follow binding Fourth Circuit precedent in Torres-Miguel. The Government urges the Court to ignore binding Fourth Circuit precedent. In Torres- Miguel, the Fourth Circuit held that the threat of physical injury, even serious bodily injury or death, does not necessarily require the use of violent physical force. The Government offers the Court three reasons why it should decide the pending motion to dismiss in a manner inconsistent with Torres-Miguel. First, the Government tries to narrow Torres-Miguel through a creative reading that excises the fundamental logic underpinning the Fourth Circuit s holding. Second, the Government argues that Torres-Miguel was abrogated by the Supreme Court s decision in Castleman v. United States, 134 S. Ct. 1405, 1413 (2014), even though Castleman applied different statutory elements to a different statutory definition and explicitly reserved the question Torres-Miguel answered. Third, the Government cites three cases from the early 1990s which found that various non-hobbs Act robbery offenses qualified as crimes of violence. The Government asks the Court to give weight to those cases rather than to Torres-Miguel. Each of these arguments lacks merit. The Court should apply Torres-Miguel and find that Hobbs Act robbery does not require proof that a defendant threatened to use violent physical force. First, the Government attempts to recharacterize Torres-Miguel by excising and replacing its fundamental holding. The Government argues that Torres-Miguel was all about mens rea. (ECF No. 14, 13.) But Torres-Miguel s holding is not based on the mens rea argument discussed above. The Fourth Circuit s opinion does not even cite Leocal or Garcia. See Torres-Miguel, 9

10 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 10 of 22 PageID# F.3d 165. Torres-Miguel s fundamental holding is that a crime may result in death or serious injury without involving use of physical force. 701 F.3d at 168. The outcome turned on the Fourth Circuit s conclusion that it is a logical fallacy [n]ot to recognize the distinction between a use of force and a result of injury. Id. at 169. Many Courts of Appeals have reached the same conclusion and the Fourth Circuit in Torres-Miguel relied on some of these decisions to reach its holding. 5 The Government s attempt to recharacterize this holding as dicta is unsound. Second, the Supreme Court s decision in Castleman does not disturb Torres-Miguel s logic or holding. In Castleman, the Supreme Court emphasized that it was applying a definition of physical force different from that applicable here and in Torres-Miguel. In Castleman, the Court decided not to apply ACCA s definition of physical force described in its 2010 Johnson decision to the statutory phrase at issue. 134 S. Ct. at Unlike the definition of physical force at issue here (and in Torres-Miguel and Johnson) the Castleman Court applied a physical force definition that encompassed even the slightest offensive touching. Id. The Government s quotation of Castleman must be understood in that (very different) context. More importantly, the Supreme Court in Castleman explicitly refused to evaluate the 5 See United States v. Zuniga-Soto, 527 F.3d 1110, 1126 n.3 (10th Cir. 2008) (statute that permits convictions based on the mere causation of physical injury without proof of the use, attempted use, or threatened use of physical force, [ ] does not qualify as a crime of violence ); United States v. Perez-Vargas, 414 F.3d 1282, 1285 (10th Cir. 2005) (crime of violence definition focuses on means by which an injury occurs (the use of physical force) whereas predicate offense focuses on the result of a defendant s conduct, i.e., bodily injury. ); Chrzanoski v. Ashcroft, 327 F.3d 188, 195 (2d Cir. 2003) ( [I]ntentional causation of injury does not necessarily involve the use of force. ); see also United States v. Johnson, 707 F.3d 655, 662 (6th Cir. 2013) (stalking statute which prohibits threats that place another in reasonable fear of death, serious physical injury, or sexual contact does not meet force clause); United States v. Martinez-Flores, 720 F.3d 293, 299 (5th Cir. 2013) (aggravated assault requiring defendant to cause significant bodily injury not categorically a crime of violence); United States v. Gomez- Hernandez, 680 F.3d 1171 (9th Cir. 2012) (same for aggravated assault requiring defendant to cause serious bodily injury and use deadly weapon with attempt to cause injury). 10

11 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 11 of 22 PageID# 97 validity of the logic rejected by Torres-Miguel. The Castleman Court wrote that [w]hether or not the causation of bodily injury necessarily entails violent force [is] a question we do not reach. Id. at That, of course, is the question any decision abrogating Torres-Miguel must answer. Because Castleman failed to reach the question Torres-Miguel answered, Torres- Miguel retains its vitality and remains binding precedent. Finally, the Government suggests that three decisions from the early 1990s, which analyzed different robbery statutes, preclude this Court from relying on Torres-Miguel. (ECF No. 14, ) The Government relies heavily on United States v. Wilson, which held in 1991 that the Maryland robbery offense has as an element the use or threatened use of force. (ECF No. 14 at 5 (citing Wilson, 951 F.2d 586, 588 (4th Cir. 1991)). But that opinion predates nearly every relevant case that has since 1991 clarified the contours of the ultimate crime-ofviolence inquiry: Wilson predated the Supreme Court s decisions in Leocal and Johnson as well as every succeeding Fourth Circuit decision, including Torres-Miguel. The landscape has changed since the early 1990s. Perhaps this is why the Government is now conceding before the Fourth Circuit that Maryland common law robbery does not categorically qualify under the force clause even though 24 years ago Wilson held that it did. See Br. of Appellee, at 73, United States v. Louis Martin, No (4th Cir. Sept. 14, 2015) ( In light of [Johnson] the government agrees that the defendant s earlier [Maryland] robbery conviction does not qualify as a violent felony for purposes of the Armed Career Criminal Act. ); see also Splitzinger v. Maryland, 340 Md. 114 (1995) (defining common law robbery in Maryland as essentially the taking of another s property by violence or putting a person in fear). Just as Wilson is unreliable precedent, so too are United States v. Presley, 52 F.3d 64 (4th Cir. 1995), and United States v. Adkins, 937 F.2d 947 (4th Cir. 1991). 11

12 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 12 of 22 PageID# 98 Like Wilson, both Presley and Adkins predated Leocal and Johnson. 6 Moreover, the Government relies on Presley for the proposition that [i]ntimidation is the threat of the use of force. (ECF No. 14, 5 (quoting Presley, 52 F.3d at 69.) But Presley analyzed a state statute and Presley s statement is inconsistent with state court interpretations of that statute. See, e.g., Bivins v. Commonwealth, 19 Va. App. 750, 743 (1995) ( Intimidation differs from threat in that it occurs without an express threat by the accused to do bodily harm. ). Furthermore, Hobbs Act robbery can be committed by means of threatened force, or violence, or fear of injury. 18 U.S.C. 1951(b)(1) (emphasis added). Unless the words fear of injury are superfluous (which would violate the most basic canon of construction), putting someone in fear of injury means something different than threatened force. Cf. People v. Barner, 383 Ill. App. 3d 356, 359 (2008) ( Because the statute talks about force or the threat of force in addition to intimidation, the term intimidation must mean something other than force or the threat of force. ). The Government s reliance on Adkins is misplaced in every respect. 937 F.2d at 950 n.2. The Government leans heavily on a single line of uncontested dicta from a footnote of a 24-yearold decision analyzing a different predicate offense that did not contemplate threats against property. Plus Adkins suffers from the same problems as Wilson, which the Government is conceding has been overruled. 7 6 For this reason alone, Torres-Miguel does not pose an irreconcilable conflict with these decisions. Cf. McMellon v. United States, 387 F.3d 329, 334 (4th Cir. 2004). 7 The out-of-circuit precedent on which the Government relies is of no persuasive value. Each case cited by the Government either predates the Supreme Court s 2010 Johnson decision, contains no analysis, or analyzes a different predicate offense. See Johnson v. United States, 779 F.3d 125, (2d Cir. 2015) (no analysis; predicate is armed bank robbery); United States v. Shuck, 481 F. App x 600, 603 (11th Cir. 2012) (predicate is armed bank robbery); United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000) (predates Johnson; no analysis; predicate is armed bank robbery); United States v. Farmer, 73 F.3d 836, 842 (8th Cir. 1996) (predates Johnson); United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993) (dicta; predates 12

13 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 13 of 22 PageID# 99 The only recent Fourth Circuit decision analyzing whether common law robbery categorically qualifies under the force clause is United States v. Carmichael, 408 F. App x 769, 770 (4th Cir. 2011). In Carmichael, the Fourth Circuit held, Under North Carolina law, common law robbery is defined as the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear. this offense does not necessarily have as an element the use, attempted use, or threatened use of physical force against the person of another. 408 F. App x at 770 (emphasis added). All aspects of Torres-Miguel remain logically sound and authoritatively binding. Torres- Miguel faithfully applied the categorical approach under a framework informed by Johnson, Leocal, and Garcia. In doing so, Torres-Miguel rejected a logical fallacy similar to that urged by the Government here. Torres-Miguel stands for the unremarkable proposition that an offense that results in physical injury does not necessarily involve the use or threatened use of force. 701 F.3d at 168. Here, Mr. Waites asserts a similar proposition: An offense that results in fear of injury, immediate or future, to [ ] person or property does not necessarily involve the threatened use of violent physical force. Applying Torres-Miguel s logic here yields the conclusion that Hobbs Act robbery does not qualify as a crime of violence. II. SECTION 924(c) s RESIDUAL CLAUSE IS UNCONSTITUTIONALLY VAGUE. The Government concedes that courts must use the same ordinary case analysis in Johnson; no analysis); United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991) (applying pre- Johnson definition of physical force, Judge Posner found that bank robbery contemplates violence in the broad sense ). Moreover, the Government makes much of Congress s 1984 amendment of 924(c). (ECF No. 14, 2.) But Congress s clarification that 924(c) encompasses predicate offenses that themselves include weapon enhancements says nothing about the definition of a crime of violence in the first instance. Nor does the 1984 amendment have any effect on Hobbs Act robbery, which itself contains no such weapon enhancement. 13

14 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 14 of 22 PageID# 100 determining whether a felony qualifies as a crime of violence under 924(c) s residual clause as under ACCA s residual clause. (ECF No. 14, 24). This ordinary case inquiry is the core source of the grave uncertainty and wide ranging inquiry that doomed ACCA s residual clause. Johnson, 135 S. Ct. at It is the first in a line of dominoes that inevitably topples the entire provision. The ordinary case inquiry brought down ACCA s residual clause. It also brings down 924(c)(3)(B). Today, the Ninth Circuit in Dimaya v. Lynch held that 16(b) which is exactly the same as 924(c)(3)(b) is void for vagueness in light of Johnson. No (9th Cir. Oct. 19, 2015) (for publication), ECF No The Ninth Circuit held that the statutory text at issue here suffers from the same indeterminacy as ACCA s residual clause. Dimaya, slip op. at 4. Specifically, courts considering both 16(b) and the [ACCA] residual clause must decide what a usual or ordinary violation of the statute entails and then determine how great a risk of injury that ordinary case presents. Id. at 11 (internal quotation marks omitted). The Ninth Circuit observed that, [n]otwithstanding the undeniable identity of the constitutional defects in the two statutory provisions, the government offer[s] several unpersuasive arguments in an attempt to save 16(b). Then the Ninth Circuit went on to list and reject several of the arguments the Government raises here. The existence of enumerated offenses in ACCA? Johnson [ ] made plain that the residual clause was void for vagueness in and of itself for the reasons stated in reaching its decision, and not because of the clause s relation to the four listed offenses. Id. at 17. The Government s argument that 924(c)(3)(B) is narrower than ACCA s residual clause? The Ninth Circuit doubted that 16(b) s reference to conduct in the course of committing the offense actually creates a distinction between the two clauses at issue. Id. But even if such a distinction did exist, it would not save [ 16(b) s] 14

15 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 15 of 22 PageID# 101 definition of a crime of violence from unconstitutionality. Id. at 18. Finally, the Ninth Circuit rejected the Government s argument that the residual clause here has not generated the same degree of confusion among courts that ACCA s residual clause generated. Id. at 19. As the first Court of Appeals to analyze the post-johnson constitutionality of the statutory text at issue here, the Ninth Circuit held: Id. at 21. Although the government can point to a couple of minor distinctions between the text of the residual clause and that of [ 16(b) s] definition of a crime of violence, none undermines the applicability of Johnson s fundamental holding to this case. As with ACCA, section 16(b) requires courts to 1) measure the risk by an indeterminate standard of a judicially imagined ordinary case, not by real world-facts or statutory elements and 2) determine by vague and uncertain standards when a risk is sufficiently substantial. Together, under Johnson, these uncertainties render the [ ] provision unconstitutionally vague. The only argument the Government raises here that the Ninth Circuit did not have the opportunity to reject is the Government s invitation to ignore Johnson. Here, the Government argues that despite Johnson s clear holding the ordinary case inquiry is not constitutionally problematic after all. As explained below, all of the Government s arguments fail. A. Johnson held that no constitutionally permissible means of imagining the ordinary case exists, 3553(a)(6) notwithstanding. Johnson held that courts cannot discern the ordinary case of the predicate offense with any certainty, let alone predictability. Nothing not Google, common sense, statistics, or experts can identify with sufficient precision what the ordinary case of the crime at issue entails. See Johnson, 135 S. Ct. at Most offenses involve a broad variety of factual scenarios, and a court simply is not equipped to discern where the ordinary case lies along this spectrum. Id. at

16 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 16 of 22 PageID# 102 Here, the Government argues that sentencing courts do something akin to the ordinary case inquiry whenever they consider the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. 3553(a)(6). First, this analogy is off-base. Sentencing judges need not divine the ordinary case to identify defendants who have been found guilty of similar conduct. Moreover, sentencing courts generally exercise broad discretion in arriving at a sentence that in the judge s view best advances various abstract policy goals set out by Congress in 3553(a). 8 But giving discretion to impose sentences that promote the goals of sentencing is different from employing an undefinable inquiry to decide guilt or innocence. The Government s analogy holds no water. But even if the Government s analogy had merit, the Government is asking the Court to find that Johnson was wrongly decided. In Johnson, the Supreme Court held that no constitutionally permissible means exists by which the ordinary case inquiry can be conducted. 135 S. Ct. at Here, the Government begs to differ, and argues that what the Supreme Court found constitutionally problematic in Johnson is not so bad after all. Even if the Government were right and it is not Johnson is binding. B. The list of enumerated offenses preceding ACCA s residual clause was not material to the Supreme Court s decision in Johnson if anything, the absence of such a list in 924(c)(3)(B) only exacerbates its vagueness. Contrary to what the Government argues, the Supreme Court s decision in Johnson did 8 This is not to say that sentencing judges exercise unbounded discretion or even that they exercise discretion in all aspects of sentencing. Calculating the guidelines, for example, demands precision and predictability to ensure due process. See, e.g., Gall v. United States, 552 U.S. 38, 51 (2007) (noting that failing to calculate (or improperly calculating) the Guidelines range is significant error that warrants reversal); see also United States v. Arroyo-Jaimes, 608 F. App x 843 (11th Cir. 2015) (holding that district court violated defendant s due process rights at sentencing by considering facts averred by government which defendant disputed and government never established). 16

17 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 17 of 22 PageID# 103 not hinge on the list of enumerated offenses that precedes ACCA s residual clause. The ordinary-case problem exists in any event. As the Court recognized, the list bears only on the determination of how much risk it takes for a crime to qualify as a violent felony. Johnson, 135 S. Ct But a lower court must determine the idealized ordinary case of the predicate offense before it can begin to evaluate the type and level of risk presented by that offense. Id. at Because courts cannot answer the threshold question with any certainty, logic compels that the ordinary-case analysis itself renders the residual clause unconstitutionally void. If a court cannot determine the ordinary case of the predicate offense, then a court cannot proceed with its risk analysis enumerated offenses or not. It is true that, in parrying Justice Alito s criticism that its decision would invalidate a multitude of similar laws, the Johnson Court initially noted that none of those statutes included ACCA s enumerated list. But the Court then made clear that the ordinary case problem was really the central distinguishing feature: More importantly, almost all of the cited laws require gauging the riskiness of conduct in which an individual engages on a particular occasion. The residual clause, however, requires application of the serious potential risk standard to an idealized ordinary case of the crime. Johnson, 135 S. Ct. at 2561 (emphasis added). In any event, the absence of enumerated offenses actually cuts against the Government s argument. The enumerated offenses in ACCA at least offer some benchmark for quantifying risk, even though that benchmark did not rescue ACCA. Section 924(c)(3)(B), on the other hand, provides no benchmarks. If anything, 924(c) s residual clause without enumerated offenses is more constitutionally problematic. C. Under 924(c)(3)(B), the ordinary-case analysis is not narrower than under ACCA s residual clause. The Government errs in asserting that 924(c)(3)(B) does not go beyond the elements 17

18 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 18 of 22 PageID# 104 of the offense, and thus is narrower than ACCA s residual clause. (ECF No. 14, 21.) As discussed above, a different provision 924(c) s force clause qualifies a predicate crime as a crime of violence based solely on its legal elements. The residual clause is based on the ordinary case inquiry, which necessarily goes beyond the strict legal elements of the offense. The Government also claims that 924(c)(3)(B) is temporally narrower than ACCA s residual clause because it looks to the risk of force only in the course of committing the offense. (ECF No. 14, 21.) As the Ninth Circuit held in Dimaya, it is doubtful that 924(c)(3)(B) calls for any narrower an inquiry than ACCA s residual clause. But, like the absence of enumerated offenses, this simply has no bearing on the threshold ordinary case inquiry that the Supreme Court determined is impossibly arbitrary. If a court cannot conjure the idealized typical scenario in which an offender embarks on the predicate crime, it cannot gauge the riskiness of the probable ensuing conduct. Likewise, the supposedly typical conduct the Court found sufficiently risky in ACCA cases involved conduct during the predicate crime, rather than at some time later. See, e.g., James, 550 U.S. at ( An armed would-be burglary may be spotted by a police officer, a private security guard, or a participant in a neighborhood watch program. Or a homeowner... may give chase ); Sykes, 131 S Ct. at 2274 (driver s knowingly fleeing law enforcement officer held a violent felony given risk that, during pursuit, driver might cause accident or commit another crime to avoid capture). In no case did the Supreme Court actually rely on post-offense conduct to find a predicate crime sufficiently risky under ACCA s residual clause. And it expressed doubt about whether this would be a statutorily permissible basis to qualify an offense as a crime of violence. See Chambers, 555 U.S. at 129. The Government relies on the Supreme Court s description of the ACCA inquiry as one 18

19 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 19 of 22 PageID# 105 that goes beyond evaluating the chances that the physical acts that make up the crime will injure someone, and the Court s citation of burglary as an example of a situation in which the risk of injury could arise after the breaking and entering had occurred. (ECF No. 14, 21 quoting Johnson, 131 S. Ct. at 2557.) But in assessing riskiness, 924(c)(3)(B) and its twin, 16(b) just like ACCA look not just at the initiation of the predicate crime (e.g., burglar s climbing through the window), but beyond that, through the entire course of the offense to its completion (e.g., while the burglar is in the house, until he flees). See Leocal, 543 U.S. at 10. Finally, the Government also cites the Supreme Court s limitation of crimes of violence under 16(b) to active, violent rather than negligent or accidental ones. (ECF No. 14, 23 citing Leocal, 543 U.S. at ) But this too is no different than ACCA. The Supreme Court, relying in part on Leocal, similarly held that crimes of violence under ACCA s residual clause were limited to purposeful, violent, and aggressive rather than negligent or accidental ones. Begay, 553 U.S. at 145. In sum, none of the distinctions identified by the Government establish a material difference between the unconstitutional residual clause in ACCA and the unconstitutional residual clauses in 16(b) and 924(c). D. The same level of confusion surrounds 924(c)(3)(B) as surrounded ACCA s residual clause. The Government argues that 924(c)(3)(B), unlike ACCA, is not shrouded in confusion. It is true that several memorable Supreme Court dissents before Johnson criticized ACCA s residual clause without naming 924(c)(3)(B) specifically. But that is neither here nor there. The Government glosses over the fact that cases addressing 924(c)(3)(B) and 16(b) regularly rely on ACCA cases, and vice-versa. Courts use the same body of precedent to interpret all three. Thus, confusion surrounding ACCA reflects difficulties with 924(c)(3)(B) and 16(b), even without the same explicit chorus of criticism. 19

20 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 20 of 22 PageID# 106 III. JOHNSON MAKES CLEAR THAT MR. WAITES MAY RAISE A FACIAL VAGUENESS CHALLENGE TO 924(C)(3)(B). The Government suggests that Mr. Waites s challenge cannot succeed unless he can show that 924(c)(3)(B) is vague as applied to the particular predicate offenses in his case. (ECF No. 14, 25.) Not so. Johnson held ACCA s residual clause void for vagueness on its face, without first holding it vague as applied. 135 S. Ct. at And in response to Justice Alito s dissenting criticism that the Court should instead have employed an as applied approach the Court explained that such a hopelessly indeterminate statute is unconstitutional even if there is some conduct that clearly falls within the provision s grasp. 135 S. Ct. at Having been charged under 924(c), Mr. Waites has standing to raise his facial constitutional challenge. CONCLUSION Hobbs Act robbery fails to qualify categorically as a crime of violence under 924(c) s force clause, and 924(c) s residual clause is unconstitutionally vague under Johnson. Thus, no legal basis exists for a 924(c) conviction. Mr. Waites respectfully requests that the Court grant his motion and dismiss Count 2 of the indictment. Respectfully submitted, JAMES D. WAITES By: /s/ Richard J. Colgan, Esquire VSB # Attorney for James D. Waites Office of the Federal Public Defender 150 Boush Street, Suite 403 Norfolk, Virginia (757) (757) (telefax) richard_colgan@fd.org 20

21 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 21 of 22 PageID# 107 Andrew W. Grindrod VSB # Assistant Federal Public Defender Attorney for James D. Waites Office of the Federal Public Defender 150 Boush Street, Suite 403 Norfolk, Virginia (757) (757) (telefax) andrew_grindrod@fd.org 21

22 Case 2:15-cr MSD-RJK Document 20 Filed 10/19/15 Page 22 of 22 PageID# 108 CERTIFICATE OF SERVICE I certify that on the 19th day of October, 2015, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following: John F. Butler U.S. Attorney's Office 101 W Main St Suite 8000 Norfolk, VA john.f.butler@usdoj.gov Richard D. Cooke Assistant United States Attorney 600 East Main Street, Suite 1800 Richmond, VA Richard.cook@usdoj.gov By: /s/ Andrew W. Grindrod VSB # Assistant Federal Public Defender Attorney for James D. Waites Office of the Federal Public Defender 150 Boush Street, Suite 403 Norfolk, Virginia (757) (757) (telefax) andrew_grindrod@fd.org 22