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United States v. Porcher

United States District Court, D. South Carolina, Columbia Division

August 26, 2019

United States of America,
v.
Elliott Jermaine Porcher, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE

         Defendant filed a motion in this court pursuant to 28 U.S.C. § 2255, challenging his conviction for a violation of 18 U.S.C. § 924(c). ECF No. 541. The Government filed a response in opposition and a motion to dismiss or for summary judgment. ECF Nos. 573, 574. Defendant filed a response in opposition to summary judgment. ECF No. 577.[1]

         I. Background

         On February 16, 2011, Defendant was charged in an Indictment with the following counts: 1) conspiracy to commit Hobbs Act Robbery; 2) Hobbs Act Robbery on April 6, 2010; 3) possession with intent to distribute a quantity of marijuana on April 6, 2010; 4) knowingly using and carrying a firearm during and in relation to, and possessing a firearm in furtherance of, a drug trafficking crime and a crime of violence, and did cause said firearm to be discharged, on April 6, 2010; and 8) felon in possession. ECF No. 3.

         On May 10, 2011, Defendant pled guilty, pursuant to a Plea Agreement, to Counts 1 and 4 of the Indictment: conspiracy to commit Hobbs Act Robbery and a violation of § 924(c). ECF No. 252. The Plea Agreement noted Count 4, the § 924(c) count, charged “using or possessing of a firearm in connection or furtherance of a drug trafficking offense and causing discharge of said firearm.” Id. at ¶ 1. Judgment was entered on August 26, 2011. ECF No. 384. Defendant was sentenced to a total term of 235 months, consisting of 115 months as to Count 1 and 120 months as to Count 4, consecutive. Id. Defendant did not appeal. On November 5, 2014, an Amended Judgment was issued pursuant to Rule 35(b), reducing Defendant's sentence to 151 months: 31 months as to Count 1 and 120 months as to Count 4, consecutive. ECF No. 510.

         II. 18 U.S.C. § 924(c)

         Title 18 U.S.C. § 924(c) provides that a defendant shall be subject to a consecutive sentence if he or she, “during and in relation to any crime of violence or drug trafficking crime. . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm. . . .” 18 U.S.C. § 924(c)(1)(A).

         A “drug trafficking crime” for purposes of § 924(c) means “any felony punishable under the Controlled Substances Act (21 U.S.C. §§ 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. §§ 951 et seq.), or chapter 705 of title 46.” § 924(c)(2). The statute defines a “crime of violence” as: an offense that is a felony and -

(A) has 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.[2]

§ 924(c)(3).

         The Fourth Circuit has held conspiracy to commit Hobbs Act Robbery cannot qualify as a crime of violence under the force clause of §924(c)(3)(A). United States v. Simms, 914 F.3d 229, 233-34 (4th Cir. 2019). The Simms court also concluded the residual clause of §924(c)(3)(B) is unconstitutionally vague and therefore void. Id. at 236.

         On June 24, 2019, the Supreme Court also decided the residual clause of § 924(c)(3)(B) is void for vagueness. United States v. Davis, 139 S.Ct. 2319, 2336 (2019). In doing so, the Court rejected application of a case-specific approach for § 924(c) and applied the categorical approach.[3]Id. at 2327-2332.

         III. Discussion

         Defendant argues his § 924(c) conviction in Count 4 was predicated on the conspiracy to commit Hobbs Act Robbery conviction in Count 1, which cannot serve as an underlying offense as it is not a crime of violence as defined in § 924(c)(3)(A), the “force clause, ” and §924(c)(3)(B) is invalid. ECF No. 541. The Government has moved for summary judgment, arguing Defendant's claim is barred by his valid guilty plea and appeal waiver, is untimely, and fails on the merits as Defendant's § 924(c) charge was based on a drug trafficking crime as well as a crime of violence. ECF No. 573. Defendant responded, arguing his §924(c) cannot be based on the drug trafficking count in Count 3, because that count was dismissed. ECF No. 577. He also argues his appeal waiver should not be enforced, and the motion is timely. Id. at 2-4.

         The court finds Defendant's § 924(c) conviction remains valid because it was predicated on a drug trafficking crime. Therefore, even though conspiracy to commit Hobbs Act Robbery no longer qualifies as a crime of violence under the now invalidated residual clause or under the force clause of § 924(c), the § 924(c) conviction stands as also based on an underlying offense that constitutes a drug trafficking crime.

         a. Analysis

         Defendant was charged with knowingly using or carrying a firearm during and in relation to, and possessing a firearm in furtherance of, a drug trafficking crime and a crime of violence. ECF No. 3 at 3 (“That on or about April 6, 2010, in the District of South Carolina, the Defendants . . . as principals, aiders and abettors and as co-participants in jointly undertaken criminal activity, knowingly did use and carry a firearm during and in relation to, and did possess a firearm in furtherance of, a drug trafficking crime and a crime of violence, both of which are felonies prosecutable in a Court of the United States, and did cause said firearm to be discharged.”). His Plea Agreement states Count 4 rests on a drug trafficking crime, though he did not plead guilty to a drug trafficking crime.[4] ECF No. 252 at ¶ 1 (“The Defendant agrees to plead guilty to Counts 1 of the Indictment now pending . . . and Count 4 of the Indictment now pending, which charges using or possessing of a firearm in connection or furtherance of a drug trafficking offense and causing discharge of said firearm. . .”). At his change of plea hearing, the court explained the charge in Count 4 as follows:

Court: As far as Count Four, Count Four charges the firearms offense, and that charges that on or about April the 6th of 2010 here in South Carolina that you, as principals, aiders and abettors and co-participants in a jointly undertaken criminal activity knowingly did use and carry a firearm during and in relation to and did possess the firearm in furtherance of a drug trafficking crime and a crime of violence, both of which are felonies prosecutable in a Court of the United Sates, and that you did cause the firearm to be discharged.
And this particular crime requires in order to be proved that you or someone that you aided or abetted actually committed a drug trafficking crime, that you or someone you aided and abetted knowingly used or carried a firearm in furtherance of a crime of violence or drug trafficking crime, and that you or someone you aided or abetted discharged the firearm.
Mrs. Taylor, shouldn't that No. one under that be committed to a drug trafficking crime ...

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