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Duncan v. United States

United States District Court, D. Idaho

November 15, 2019



          Honorable Edward J. Lodge, United States District Judge.


         On March 22, 2019, the Court entered an order denying all but one of the claims in Petitioner Joseph Edward Duncan, III's Motion for Collateral Relief seeking to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (CV Dkt. 43.)[1] The Court took under advisement Claim Nine challenging the constitutionality of the statute charged in Count Seven pending anticipated rulings from the Ninth Circuit and Supreme Court. After those rulings were entered, the parties filed additional briefing on the legal issue under advisement. (CV Dkt. 44-48.) The Court has considered the record in this case, the recent case law, and the parties' briefing and finds as follows as to Claim Nine of Petitioner's § 2255 Motion challenging the constitutionality of Count Seven.[2]


         Count Seven charged Duncan with Using a Firearm During and in Relation to a Crime of Violence Resulting in Death in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), (c)(1)(B)(i), (j)(1). Specifically, Count Seven states:

On or about May 16, 2005 and between July 2, 2005, in the District of Idaho, the defendant, JOSEPH EDWARD DUNCAN, III, did knowingly carry and use a firearm, to wit: a Browning Arms 12-gauge short-barreled shotgun, serial no. 751PR0681 . . . during and in relation to a crime of violence for which he may be prosecuted in a court of the United States, that is the crimes alleged in Counts One and Two of this Indictment which are realleged and incorporated by reference herein, in violation of Title 18, United States Code, Section 924(c)(1), and in the course of this violation caused the death of a person through the use of a firearm, which killing is a murder as defined in Title 18, United States Code, Section 1111, in that the defendant, with malice aforethought, did unlawfully kill D.G. by shooting him with the firearm willfully, deliberately, maliciously and with premeditation; all in violation of Title 18, United States Code, Section 924(c)(1)(A)(ii), (c)(1)(B) and (j)(1).

(CR Dkt. 1 at 4-5.) To be guilty of the charge requires that Duncan used a firearm during and in relation to a “crime of violence.” 18 U.S.C. § 924 (c)(1)(A)(ii). Subsection 924(c)(3) defines a “crime of violence” to mean an offense that is a felony and -

(A) has as 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.

         The term “crime of violence” and, the similar term “violent felony, ” are used in several statutes to denominate certain sentencing-enhancing predicate offenses. Those terms have been the subject of several recent appellate decisions finding the so-called “residual clause” of those statutes to be void for vagueness. See generally Plagued By Vagueness: The Effect of Johnson v. United States and the Constitutionality of 18 U.S.C. § 924(c)(3)(B), 54 No. 4 Crim. Law Bulletin ART 3 (Summer 2018); see also Johnson v. United States, 135 S.Ct. 2551 (2015) (invalidating the residual clause of the Armed Career Criminal Act, 28 U.S.C. § 922(e)(2)(B)(ii) for vagueness); Sessions v. Dimaya, 138 S.Ct. 1204 (2018) (finding the definition of “crime of violence” in the Immigration and Nationality Act, 18 U.S.C. § 16(b), void for vagueness).

         Most recently and applicable here, the Supreme Court applied the principles of Johnson and Dimaya to conclude that the residual clause in § 924(c)(3)(B) is also unconstitutionally vague. United States v. Davis, 139 S.Ct. 2319, 2336 (2019). Thus, Duncan's conviction and sentence on Count Seven in this case can stand only if there is a “crime of violence” under the elements clause in section 924(c)(3)(A).

         To determine whether a specific conviction is a “crime of violence, ” the Court employs the “categorical approach” laid out in Taylor v. United States, 495 U.S. 575 (1990) and Descamps v. United States, 570 U.S. 254 (2013). See United States v. Begay, 934 F.3d 1033, 1038 (9th Cir. 2019). Under the categorical approach, the court does not look to the facts underlying the conviction, but, instead, compares “the elements of the statute forming the basis of the defendant's conviction with the elements of a ‘crime of violence.'” Id. (quoting Descamps, 570 U.S. at 257); see also United States v. Sahagun-Gallegos, 782 F.3d 1094, 1098 (9th Cir. 2015) (A court applying the categorical approach must “determine whether the [offense] is categorically a ‘crime of violence' by comparing the elements of the [offense] with the generic federal definition”-here, the definition of “crime of violence” set forth in section 924(c)(3).).

         “The defendant's crime cannot be a categorical ‘crime of violence' if the conduct proscribed by the statute of conviction is broader than the conduct encompassed by the statutory definition of a ‘crime of violence.'” Begay, 934 F.3d at 1038. To find an offense overbroad, there must be a “realistic probability, not a theoretical possibility, ” that the statute would be applied to conduct not encompassed by the generic federal definition. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); accord United States v. McGuire, 706 F.3d 1333, 1337 (11th Cir. 2013) (applying the “realistic probability” standard to a crime of violence determination under section 924(c)(3)). “Crimes of violence, ” as defined in § 924(c), requires purposeful conduct, i.e., an intentional use of force. Begay, 934 F.3d at 1039.

         1. Kidnapping is Not a ...

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