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United States v. Jones

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

August 26, 2019

United States of America,
v.
Jacquan Olando Jones, 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. 300. The Government filed a motion to dismiss or for summary judgment. ECF No. 315. Defendant filed a response in opposition to summary judgment. ECF No. 341.[1]

         I. Background

         On February 19, 2013, Defendant was charged in a Superseding Indictment with the following counts: 1) conspiracy to commit Hobbs Act Robbery; 2) conspiracy to possess with intent to distribute cocaine; 3) attempt to possess with intent to distribute cocaine; 4) conspiracy to knowingly use and carry a firearm in relation to a drug trafficking crime “as set forth in Counts 2 and 3 of this Indictment, ” and in relation to a crime of violence “as set forth in Count 1 of this Indictment”; 5) knowing use and carrying of a firearm during and in relation to a drug trafficking crime “as set forth in Counts 2 and 3 of this Indictment, ” and in relation to a crime of violence “as set forth in Count 1 of this Indictment, ” 11) possession with intent to distribute and distribution of a quantity of marijuana; and 6, 10, 12, 13, 14, and 15) six counts of felon in possession of a firearm. ECF No. 123.

         On April 3, 2013, Defendant pled guilty, pursuant to a Plea Agreement, to Counts 1, 5, 10, and 11 of the Indictment: conspiracy to commit Hobbs Act Robbery (Count 1), a violation of § 924(c) (Count 5), felon in possession of a firearm (Count 10), and possession with intent to distribute marijuana (Count 11). ECF No. 143. The Plea Agreement noted Count 5, the § 924(c) count, charged “using/carrying firearm(s) during and in relation to, and possessing firearms in furtherance of a crime of violence and/or drug trafficking crime.” Id. at ¶ 1. Judgment was entered on July 11, 2013. ECF No. 180. Defendant was sentenced to a total term of 180 months, consisting of 120 months as to Counts 1 and 10, 60 months as to Count 11, concurrent, and 60 months as to Count 5, consecutive. Id. Defendant did not appeal. On October 22, 2015, an Amended Judgment was issued pursuant to Amendment 782, reducing Defendant's sentence to 147 months: 87 months as to Counts 1 and 10, 50 months as to Count 11, concurrent, and 60 months as to Count 5, consecutive. ECF No. 254.

         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 5 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. 300. 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. 315-1. Defendant responded, arguing his §924(c) conviction was based only on the Hobbs Act Robbery conspiracy, not a drug trafficking crime. ECF No. 341. He also argues his appeal waiver should not be enforced, and the motion is timely. Id. at 5-6.

         The court finds Defendant's § 924(c) conviction remains valid because it was also 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. 123 at 5 (“That on or about October 30, 2012, in the District of South Carolina, the Defendants . . . did knowingly use and carry firearms during and in relation to, and did possess firearms in furtherance of, a drug trafficking crime as set forth in Counts 2 and 3 of this Indictment, and did knowingly use and carry firearms during and in relation to, and did possess firearms in furtherance of, a crime of violence as set forth in Count 1 of this Indictment, which are felonies prosecutable in a Court of the United States . . .”). His Plea Agreement reflects both bases for §924(c), though he did not plead guilty to either Count 2 or 3. ECF No. 143 at ¶ 1 (“The Defendant agrees to plead guilty to Counts 1, 5, 10, and 11 of the Superseding Indictment now pending . . . Count 5 charges using/carrying firearm(s) during and in relation to, and possessing firearms in furtherance of a crime of violence and/or drug trafficking crime. . .”). At his change of plea hearing, the court explained the charge in Count 5 as follows:

Court: Count 5 is a gun charge. And it charges that on or about October the 30th of 2012, that you and others, those same people, did knowingly use and carry firearms during and in relation to and did possess firearms in furtherance of a drug trafficking crime as set forth in Counts Two and Three of the indictment and that you did knowingly use and carry firearms during and in relation to and possess the firearms in furtherance of a crime of violence as set forth in Count One, . . . So in order to prove that charge, they would have to be able to prove that you or others, or both, knowingly used or carried a firearm during and in relation to or possessed a firearm in furtherance of Count One, Count Two, or Count Three, or you aided and abetted someone who did that, and that the underlying crime, the drug trafficking crime or the crime of violence was prosecutable in a court of the United States. Do you understand what Count Five is about and what would have to be proved to show that?
Defendant: Yes, ma'am.

ECF No. 323 at 17-18.[4]

         The Government, through ATF Special Agent Lovin, summarized the evidence against Defendant, explaining the involvement of a confidential informant:

As the investigation continued, ATF learned that Mr. Jones had a predisposition to commit robberies prior to the September investigation. Because of that, Mr. Jones was presented with an opportunity to meet other individuals later to be determined that were ATF undercover agents to discuss a robbery of drug traffickers for approximately ten to twelve kilos of cocaine.
During these discussions which took place on three different occasions, Mr. Jones as well as Mr. Boyce were present on two of these occasions, and Mr. Davis and Mr. Howard were present on the third meeting. Each of these meetings discussed what the robbery was, how much cocaine would be in the location. There were discussions about who would do what as far as tying up or subduing or even shooting these potential drug traffickers to obtain this ten to twelve kilos of cocaine. As the investigation continued, on October 30th, or prior to October 30th, Mr. Jones reported to other ...

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