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vacating § 924(c) convictions where defendants were indicted for Hobbs Act robbery, but the court instructed the jury on Hobbs Act extortion, resulting in uncertainty as the crime of conviction and, by extension, whether it was a crime of violence
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NO: MO:11-CR-00276 (1,2)-DC, MO:19-CV-00245, MO:19-CV-00246
12-29-2020
UNITED STATES of America v. (1) Gralyn Leon WHITE, (2) Daviian Dwane Roberts
Brandi Young, U.S. Attorney's Office, Midland, TX, for United States of America. Jeffrey Parras, Law Offices of Jeff Parras, Midland, TX, for Adrian Rashad Pertile. Judy Madewell, Hina P. Chheda, Federal Public Defender's Office in San Antonio, TX, for Defendants.
Brandi Young, U.S. Attorney's Office, Midland, TX, for United States of America.
Jeffrey Parras, Law Offices of Jeff Parras, Midland, TX, for Adrian Rashad Pertile.
Judy Madewell, Hina P. Chheda, Federal Public Defender's Office in San Antonio, TX, for Defendants.
ORDER GRANTING § 2255 RELIEF AND VACATING § 924(c) SENTENCES
DAVID COUNTS, UNITED STATES DISTRICT JUDGE
Before the Court are White and Roberts's Motions to Vacate, Set Aside, or Correct Sentences filed under 28 U.S.C. § 2255 (" § 2255"), pursuant to United States v. Davis , ––– U.S. ––––, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019), the Government's Responses in Opposition, and White and Roberts's respective Replies to the Government's Responses. After ordering additional briefing on August 14, 2020, both sides filed timely and much-appreciated Briefs as well as Replies to those respective briefs with the Court.
According to the Fifth Circuit's direct appeal opinion, these are the facts of the case at hand:
On the pretense of wanting to buy drugs, Gralyn White and Daviian Roberts entered the house of a drug dealer, Monique Miller (the "Miller robbery"), and robbed her of drugs and money. A few days later, White and a few others surprised another individual, whom they also believed to deal drugs, at his house and robbed him of his money and possibly drugs (the "Lutsi robbery"). A jury convicted White and Roberts of the robbery of Miller, under the Hobbs Act, and of aiding and abetting the use of firearms in the commission of that offense. The jury convicted White (but not Roberts), under the Hobbs Act, of the Lutsi robbery and of aiding and abetting the use of firearms. The sentences included restitution for both robberies.
United States v. White , 552 F. App'x 317, 318 (5th Cir. 2014) (footnotes omitted).
On August 9, 2012, the Court sentenced White to a term of confinement for 84 concurrent months on Counts One and Three, to be served consecutively with 60 months on Counts Two and an additional consecutive 300 months on Count Four, for a total of 444 months confinement. On October 31, 2012, the Court sentenced Roberts to a term of confinement of 57 months on Count One, to be served consecutively with 84 months on Count Two, for a total of 141 months confinement.
This is the § 924(c) count.
This is the § 924(c) count.
This is the § 924(c) count.
The $2,800 restitution (jointly and severally) in this case was not tied to the § 924(c) counts for either Movant.
The Fifth Circuit permitted both White and Roberts to file § 2255 motions as a result of the decision in United States v. Davis , ––– U.S. ––––, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019), which held the "residual clause" of 18 U.S.C. § 924(c)(3)(B) to be unconstitutionally vague.
Although, after granting Movants the right to proceed under Davis in this Court, the Fifth Circuit questioned whether Davis may even be " ‘made retroactive ... by the Supreme Court’ through its previous ruling in Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 194 L.Ed.2d 387 (2016)" for purposes of a successive motion under 28 U.S.C. § 2255(h)(2). In re Hall , 979 F.3d 339, 342 & n. 1 (5th Cir. 2020) ("We acknowledge that, according to five of our sister circuits, Davis was "made retroactive ... by the Supreme Court" through its previous ruling in Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 194 L.Ed.2d 387 (2016). But we are not so sure."). The Fifth Circuit did hold, however, that Davis applied retroactively to cases on collateral review. United States v. Reece , 938 F.3d 630, 634–35 (5th Cir. 2019). Ultimately, the Fifth Circuit has not resolved this retroactivity for purposes of § 2255(h)(2) issue raised in Hall.
The United States alleged that violation of the Hobbs Act was the "crime of violence" underlying the charge against White and Roberts under 18 U.S.C. § 924(c). The Hobbs Act provides:
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
The Act separately defines "robbery" and "extortion":
(b) As used in this section–
(1) The term "robbery" means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
(2) The term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
18 U.S.C. § 1951(b). The Act is a divisible statute, meaning that robbery and extortion are, in effect, two different crimes under the Act. See, e.g., United States v. Gooch , 850 F.3d 285, 291–92 (6th Cir. 2017) ; United States v. Hill , 890 F.3d 51, 55 n.6 (2d Cir. 2018) ; see also Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248–49, 195 L.Ed.2d 604 (2016) ; Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).
Turning to the Shepard v. United States , 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) documents, Count One of the second Superseding Indictment alleged that Defendants White and Roberts "did knowingly and intentionally obstruct, delay and affect, and attempt to obstruct, delay and affect, interstate and foreign commerce, and the movement of articles and commodities in such commerce, by robbery, to wit: the defendants did take and obtain United States Currency and Controlled Substances, from the person and in the presence of M.M. against her will by means of actual and threatened force, violence and fear of injury to her person." [docket number 286]. Count Three of the second Superseding Indictment alleged that Defendants White and Roberts "did knowingly and intentionally obstruct, delay and affect, and attempt to obstruct, delay and affect, interstate and foreign commerce, and the movement of articles and commodities in such commerce, by robbery, to wit: the defendants did take and obtain United States Currency and attempt to take and obtain Controlled Substances, from the person and in the presence of K.L., J.L., and B.S. against their will by means of actual and threatened force, violence and fear of injury to their persons." [Id. ]. Counts Two and Four alleged that they "did brandish a firearm during and in relation to the crime[s] of violence alleged in Count[s One and Three] of this Indictment." [Id. ] (clarification added). The language of Counts One and Three allege robbery because they include the crucial element of a taking from the person or presence of another. The allegation in Counts One and Three shows the United States intended to prove robbery, not extortion.
At trial, however, the jury was instructed that the first element of Count One required the United States to prove:
Title 18, United States Code, Section 1951(a), makes it a crime for anyone to obstruct commerce by extortion. Extortion means the obtaining of or attempting to obtain property from another, with that person's consent, induced by wrongful use of actual or threatened force, violence, or fear.
For you to find Defendant GRALYN WHITE or DAVIIAN DWANE ROBERTS guilty of this crime alleged in COUNT ONE, you must be convinced that the government has proved each of the following beyond a reasonable doubt:
First: That on or about June 21, 2011, in the Western District of Texas, the defendant obtained or attempted to obtain property from another with that person's consent;
Second: That the defendant did so by wrongful use of actual or threatened force, violence, or fear; and
Third: That the defendant's conduct interfered with or affected interstate or foreign commerce.
[docket number 177 at 12].
The jury charge for Count Three was identical except for the date the offense took place: June 26, 2011, and the fact that it only charged GRALYN WHITE. [Id. ].
As for Counts Two and Four, Using/Carrying a Firearm During Commission of a Crime of Violence, 18 U.S.C. § 924(c)(1) :
For you to find defendant GRALYN LEON WHITE or DAVIIAN DWANE ROBERTS guilty of COUNT TWO, you must be convinced that the government has proven each of the following beyond a reasonable doubt:
First: That on or about June 21, 2011, in the Western District of Texas, the defendant committed the crime alleged in Count One. I instruct you that extortion by force, violence, or fear is a crime of violence; and
Second: That the defendant knowingly used or carried a firearm during and in relation to the defendant's alleged commission of the crime charged in Count One.
[Id. at 13–14].
The jury charge for Count Four was identical except for the date the offense took place: June 26, 2011, and the fact that it only charged GRALYN LEON WHITE. [Id. at 14].
Inducing a victim to part with property by wrongfully using threat of force or fear reflects the definition of extortion under the Hobbs Act: "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear." 18 U.S.C. § 1951(b)(2). A Hobbs Act robbery, by contrast, is "the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property." 18 U.S.C. § 1951(b)(1).
Extortion may be proved, like robbery, by "wrongful use of actual or threatened force [or] violence." But it may also be proved by the wrongful use of "fear." As was pointed out in United States v. Lettiere , No. CR 09-049-M-DWM, 2018 WL 3429927, at *4 (D. Mont. July 16, 2018), the word "fear" brings nonviolent blackmail and economic extortion within the scope of the Hobbs Act. See, e.g., United States v. Villalobos , 748 F.3d 953, 955, 956–57 (9th Cir. 2014) (finding Hobbs Act extortion where defendant threatened or offered to mislead authorities investigating an offense); Levitt v. Yelp! Inc. , 765 F.3d 1123, 1130–33 (9th Cir. 2014) (applying United States v. Sturm , 870 F.2d 769, 771–72 (1st Cir. 1989), and finding Hobbs Act extortion would be proved if defendant made wrongful threats of economic injury).
White and Roberts's jury was instructed it could convict them if it found they wrongfully used the threat of force or fear, not fear of injury. Fear without the follow-up, "of injury," suggests extortion, not robbery. The instruction used the phrase "with that person's consent," from the definition of extortion, and one court observed that "this element of consent is the razor's edge that distinguishes extortion from robbery." United States v. Zhou , 428 F.3d 361, 371 (2d Cir. 2005). The instruction also omitted the phrase "against their will," the other side of the razor's edge, distinguishing robbery from extortion. Rather than using the word "unlawful" from the definition of robbery, the instruction uses the word "wrongful," which is crucial in distinguishing legal from illegal inducements in extortion. See, e.g., Levitt v. Yelp! Inc. , 765 F.3d 1123, 1130 (9th Cir. 2014).
The jury instruction does not show how White and Roberts were convicted of robbery. It shows they were convicted of robbery or extortion, or even, arguably, just extortion. There is no reason to doubt that their conduct was robbery; it was the textbook robbery of various drug dealers. However, in categorical analysis, "[h]ow a given defendant actually perpetrated the crime makes no difference." Mathis , 136 S.Ct. at 2251. The point of the Shepard documents is to determine what elements were proved against the defendants. From the record, one cannot say the jury convicted White and Roberts of taking personal property "from the person or in the presence of" the victims, "against their will." Those elements were not submitted for the jury's deliberation. All that can be said is that the jury convicted White and Roberts of inducing the victims to part with property by wrongfully using the threat of force or fear.
The jury did not find all the elements of Hobbs Act robbery. Although Hobbs Act robbery is a crime of violence under § 924(c)(3)(A), extortion is not. Section 924(c)(3)(B) is unconstitutionally vague. As a result, White and Robert's convictions under § 924(c) cannot stand under Davis. This is because the Shepard documents establish that both White and Roberts's § 924(c) convictions were predicated on Hobbs Act extortion, not Hobbs Act robbery. After Davis , Hobbs Act extortion can qualify as a "crime of violence" only under the now unconstitutionally vague residual clause. As the jury was instructed as to Hobbs Act extortion and not Hobbs Act robbery, even though robbery was proven at trial, White and Roberts's § 924(c) convictions must be vacated. White and Roberts must now be resentenced.
Hobbs Act extortion is a separate crime with different elements. United States v. McCallister , No. 15-0171 (ABJ), 2016 WL3072237, at *8–9 (D.D.C. 2016) (distinguishing between cases dealing with Hobbs Act extortion and Hobbs Act robbery, and concluding that Hobbs Act robbery is categorically a crime of violence under the force clause of § 924(c) ).
The Court in the Eastern District of Virginia reached a similar result in United States v. McCall , No. 3:10-CR-170-HEH, 2019 WL 4675762, at *6–7 (E.D. Va. Sept. 25, 2019). In that case, the Court had instructed the jury that it could find § 924(c) guilt on either a conspiracy offense (that did not constitute a crime of violence) or an assault with a dangerous weapon offense (that did constitute a crime of violence). Because the jury instructions (the relevant Shepard document) authorized a § 924(c) verdict on conspiracy, the Court vacated the conviction post-Davis. Relatedly, the Court in the Western District of Virginia in United States v. Berry , 2020 WL 591569 (W.D. Va. Feb. 6, 2020), after the government conceded that "the jury instructions allowed for a [§ 924(c) ] conviction on either conspiracy or attempted Hobbs Act robbery, and the jury verdict was a general verdict which [did] not specify which was the basis for the conviction." Id. at *3. "Indeed, as the United States has conceded," the court explained, "there is no means of establishing whether the conviction was for attempt - which could qualify as a crime of violence - as opposed to conspiracy - which does not qualify as a crime of violence under Simms. " Id. (quotations omitted). Therefore, the Court vacated the § 924(c) conviction.
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The Court cannot overlook the fact that the Supreme Court has been steadfast in insisting upon clarity in the language of criminal statutes. "The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them." United States v. Santos , 553 U.S. 507, 514, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). "[T]he tie must go to the defendant." Id. ; see also Davis , 139 S.Ct. at 2333 (stating that the rule of lenity "teach[es] that ambiguities about the breadth of a criminal statute should be resolved in the defendant's favor"). Resolving this in White and Roberts's favor means vacating the infirm § 924(c) convictions in each of their respective cases and resentencing them.
It is so ORDERED .