United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Edward J. Lodge, United States District Judge.
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.) 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.
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,
(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.
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).
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).
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).).
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.
Kidnapping is Not a ...