United States District Court, D. South Carolina, Florence Division
Elliott B. Graham, PETITIONER
United States of America, RESPONDENT
L. WOOTEN SENIOR UNITED STATES DISTRICT JUDGE.
Elliott B. Graham pled guilty to charges of kidnapping, in
violation of 18 U.S.C. § 1201 (Count 10), and using a
firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c) (Count ll). After
granting the Government's motion for a downward
departure, the Court sentenced him to a total of 260 months
incarceration. ECF No. 195. In his § 2255 petition, he
says that his § 924(c) conviction and sentence should be
vacated because kidnapping is not a valid § 924(c)
predicate offense under the force clause or the residual
clause. See RCF No. 358.
is correct that kidnapping is not a § 924(c) predicate
offense. See United States v. Davis, 139 S.Ct. 2319,
2336 (2019) ("We agree with the court of appeals'
conclusion that § 924(c)(3)(B) is unconstitutionally
vague."); United States v. Walker, 934 F.3d
375, 379 (4th Cir. 2019) ("[K]idnapping clearly does not
categorically qualify as a crime of violence under the force
clause, § 924(c)(3)(A)."). But that is irrelevant
here because his § 924(c) conviction is related to a
carjacking, which the Fourth Circuit has held is a valid
§ 924(c) predicate under the force clause. United
States v. Evans, 848 F.3d 242, 244 (4th Cir. 2017)
("[T]he carjacking statute qualifies as a crime of
violence under Section 924(c), because the carjacking statute
'has as an element the use, attempted use, or threatened
use of physical force against the person or property of
another.' 18 U.S.C. § 924(c)(3)(A).").
facts of this case are straightforward. On April 6, 2005,
Petitioner and three co-defendants (Thomas Brown, Ithamar
Southern, and Romail Leach) were driving a Nissan Altima when
they approached the victim, who was standing in the yard of
his residence. One of the individuals in the Altima asked the
victim if he would sell them the rims off his Chevrolet
Impala, which was parked and idling nearby. The victim
refused, so Petitioner pointed a revolver at the victim and
told him to get into the Altima. When he did so, one of the
co-defendants got out of the Altima and into the victim's
Impala. Both vehicles left the scene, traveling from South
Carolina into North Carolina and then back into South
Carolina. While in the vehicle, the victim was hit with the
revolver and threatened with being taken into the woods and
burned with gasoline unless he told them the location of the
key to unlock the rims. After he told them the location, they
released him and told him to run into the woods. See PSR
¶¶ 21-23 (discussing the incident that formed the
basis of the charges in Count 9 (carjacking), Count 10
(kidnapping), and Count 11 (§ 924(c))). During
Petitioner's plea colloquy, he agreed to those facts as
summarized by the Government and he admitted that he was the
one with the revolver. See Plea Tr. 17:11-19:18.
§ 924(c) conviction does not require that the defendant
also be convicted of the underlying crime of violence or drug
trafficking crime. See, e.g., United States v. Randall,
111 F.3d 195, 208 (4th Cir. 1999) ("[T]he
government was not required to separately charge or convict
the defendants of the § 924(c) predicate
offense."). A defendant's admission during a plea
colloquy is enough. See United States v. King, 81
F.App'x 440, 441 (4th Cir. 2003); see also United
States v. Hill, 971 F.2d 1461, (10th Cir. 1992)
("[T]he defendant's commission of the underlying
offense is merely a matter of proof which may be met either
by the defendant's admission or through the presentation
of evidence sufficient to sustain the government's
burden."); United States v. Munoz-Fabela, 896
F.2d 908, 911 (5th Cir. 1990) ("[I]t is only the fact of
the offense, and not a conviction, that is needed to
establish the required predicate.").
Government is also not required to specify a particular
predicate offense in the § 924(c) charge in the
indictment. Randall, 111 F.3d at 208. However, if
the Government does so, then proof at trial of a different
predicate offense and corresponding jury instructions can
constitute an improper constructive amendment to the charge.
See Id . at 210.
the Government did not specify a particular predicate offense
in the § 924(c) charge at issue. Thus, the fact that
Petitioner ultimately pled guilty to the kidnapping and
§ 924(c) charges is not dispositive.
also instructive to look at the convictions of
Petitioner's co-defendants. Brown went to trial and was
convicted on all counts, including the three counts at issue
here. Southern and Leach both pled guilty to two §
924(c) charges, one of which is the charge at issue
here-Count 11. During Southern's and Leach's joint
plea colloquy, they made substantially the same admissions
that Petitioner did during his own colloquy regarding this
incident. The Court recently denied each of their § 2255
petitions, concluding that their convictions on Count 11 were
related to carjackings. See Brown v. United States,
No. 4:05-cr-00770TLW-l, 2019 WL 1714267, at *2 (D.S.C. Apr.
17, 2019), appeal docketed, No. 19-6826 (4th Cir.
June 11, 2019); Southern v. United States, No.
4:05-cr-00770-TLW-2, 2019 WL 1714271, at *2 (D.S.C. Apr. 17,
2019), appeal docketed, No. 19-6777 (4th Cir. May
31, 2019); Leach v. United States, No.
4:05-cr-00770-TLW-4, 2019 WL 1714270, at *2 (D.S.C. Apr. 17,
2019), appeal docketed, No. 19-6789 (4th Cir. June
is no basis to distinguish Petitioner's case from those
of his co-defendants. In fact, Petitioner is arguably more
culpable than the other three because he possessed the
revolver and pointed it at the victim before telling him to
get in the car. This case is distinguishable from Walker
because there, the indictment specified that kidnapping
was the § 924(c) predicate offense and the factual basis
for the defendant's guilty plea only involved a
kidnapping. See United States v. Walker, No.
L14-CV-00271-WO (M.D.N.C), ECF Nos. 1 (indictment), 13
(factual basis for guilty plea). Here, by contrast, the
Government did not specify in the indictment the §
924(c) predicate offense and the factual basis for
Petitioner's guilty plea involved both carjacking and
kidnapping. Notably, his plea colloquy reflects that he
possessed the firearm used to commit the carjacking and to
assault the victim whose car was taken. See Plea Tr.
carjacking qualifies as a crime of violence under §
924(c)(3)(A), Petitioner's petition for relief pursuant
to § 2255, ECF No. 358, is
DENIED. This action is hereby
Court has reviewed this petition in accordance with Rule 11
of the Rules Governing Section 2255 Proceedings. In order for
the Court to issue a certificate of appealability, Rule 11
requires that Petitioner satisfy the requirements of 28
U.S.C. § 2253(c)(2), which in turn requires that he
"has made a substantial showing of the denial of a
constitutional right." The Court concludes that he has
not made such a showing, and it is therefore not appropriate
to issue a certificate of appealability as to the issues
raised in this petition. Petitioner is advised that he may
seek a certificate from the Fourth Circuit Court of Appeals
under Rule 22 of the Federal Rules of Appellate Procedure.
IS SO ORDERED.