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United States v. Herr

United States District Court, D. Massachusetts

October 17, 2016

CODY HERR, Defendant.


          Indira Talwani United States District Judge

         I. Introduction

         Before the court is Defendant Cody Herr's Motion to Dismiss [#50]. On February 11, 2016, a grand jury indicted Defendant on charges of Use of Interstate Commerce Facilities in the Commission of Murder-for-Hire, in violation of 18 U.S.C. § 1958(a), and Possession of a Firearm in Furtherance of a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A). See Indictment [#6].

         Defendant moves, pursuant to Fed. R. Crim. P. 12(b)(2), to dismiss Count Two of the indictment, Possession of a Firearm in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c). For the following reasons, Defendant's motion is GRANTED.

         II. Discussion

         The Defendant's core argument is that the Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551, 2563 (2015) (“Johnson II”), which held that the residual clause of 18 U.S.C. § 924(e) was unconstitutionally vague, applies equally to the residual clause of 18 U.S.C. § 924(c). See Kolender v. Lawson, 461 U.S. 352, 357 (1983) (noting that the “void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness” so as to give fair notice as to what activity is prohibited and to avoid arbitrary enforcement, in compliance with the Due Process Clause).

         a. The Supreme Court's Ruling in Johnson II

         In Johnson II, the Supreme Court weighed the constitutionality of the Armed Career Criminal Act's (“ACCA”) “residual clause, ” codified at 18 U.S.C. § 924(e)(2)(B)(ii). The ACCA enhanced punishment of felons who had been convicted of three or more prior “violent felon[ies], ” see 18 U.S.C. § 924(e)(1), defined as a “crime punishable by imprisonment for a term exceeding one year [that is] burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” See 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added); Johnson II, 135 S.Ct. at 2556. The italicized portion above is known as the residual clause.

         The Supreme Court struck the residual clause for unconstitutional vagueness. Johnson II at 2563. Specifically, the Court held that the analytical framework required by the residual clause “both denies fair notice to defendants and invites arbitrary enforcement by judges.” Id. at 2258. That framework consisted of two parts, the combination of which exceeded constitutional limitations. First, judges employed a “categorical approach, ” whereby they would begin analysis of a prior felony by looking not at its actual underlying conduct, but instead to the “ordinary” form that felony takes. Id. at 2557. Second, judges would then apply a “serious potential risk” standard to this abstraction. Id. Both of these steps were largely indeterminate: the categorical approach itself provided little guidance regarding how a judge might distill the “ordinary” version of a particular crime, and the “serious potential risk” standard amplified uncertainty by providing little guidance (other than a confusing list of examples) regarding whether a judge-made abstraction of a crime was sufficiently risky. Id. “By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id.

         In Welch v. U.S., 136 S.Ct. 1257 (2016), the Supreme Court re-emphasized the categorical approach's centrality to the Johnson II holding. It affirmed that Johnson II's holding “cast no doubt on the many laws that ‘require gauging riskiness of conduct in which an individual defendant engages on a particular occasion, '” but that the residual clause failed because it “required courts to assess the hypothetical risk posed by an abstract generic version of the offense.” Id. at 1262 (emphasis in original) (quoting Johnson II, 135 S.Ct. at 2561).

         b. Johnson II precludes application of 18 U.S.C. § 924(c)(3)(B)

         Defendant now argues that Johnson II applies equally to 18 U.S.C. § 924(c)(3)(B). Under that statute, any person “who, during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any crime, possess a firearm” violates the statute. 18 U.S.C. § 924(c)(1)(A). The statute then defines “crime of violence” as “an offense that is a felony and- (A) has as 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 property or person of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(A) and (B). (emphasis added). The First Circuit has not yet had occasion to address this question.

         In the present case, the court would find little difficulty determining that the actual conduct charged here involves substantial risk of physical force against a person under the second clause, as the government first argued. But both parties agree that to assess whether the Defendant used or carried a firearm “during and in relation to [a] crime of violence, ” the court must determine whether that crime, “by its nature, involve[d] a substantial risk that physical force against the person or property of another may be used in the course” of its being committed.[1] Thus, just as described by Johnson II, analysis here begins with the “categorical approach”: this court must ignore the Defendant's actual conduct, and instead abstract the “ordinary” murder-for-hire.[2] The court must then determine whether the ordinary form of the crime in turn “involves a substantial risk” of physical force. Both the ACCA and 18 U.S.C. § 924(c)(3)(B) thus direct judges to combine the indeterminacy inherent to the categorical approach with the indeterminacy inherent to standards such as “substantial risk, ” and thereby employ a doubly indeterminate analysis that the Supreme Court has specifically addressed and foreclosed. Thus the analytical framework the court must use to determine whether a crime is a crime of violence under 18 U.S.C. § 924(c)(3)(B)'s residual clause is the one Johnson II disallows.[3]

         And, despite the appeal of avoiding this constitutional analysis on the ground that murder-for-hire is a “straightforward case[] under the residual clause, ” the Supreme Court has explained that its holdings “squarely contradict the theory that a vague provision is constitutional merely because there is ...

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