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United States v. Meza

United States District Court, D. Montana, Billings Division

May 2, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
RICHARD LYNDON MEZA, Defendant/Movant.

          AMENDED ORDER GRANTING § 2255 MOTION AND SETTING RE-SENTENCING

          Dana L. Christensen, Chief Judge United States District Court.

         This matter comes before the Court on Defendant/Movant Meza's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Meza is a federal prisoner proceeding with counsel.

         I. Procedural Background

         On December 22, 2011, Meza was indicted on three counts of a six-count indictment: one count of conspiring to violate the Hobbs Act, a violation of 18 U.S.C. § 1951 (Count 1); one count of possessing a firearm in furtherance of a crime of violence, viz., the conspiracy alleged in Count 1, a violation of 18 U.S.C. § 924(c)(1)(A) (Count 2); and one count of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1) (Count 6). See Indictment (Doc. 19) at 2-3, 6; Plea Agreement (Doc. 52) at 4-6 ¶ 4.

         The parties reached a plea agreement. Meza agreed to plead guilty to all three counts, Counts 1, 2, and 6. As relevant here, the plea agreement recited the following elements:

Conspiracy to Commit Robbery Affecting Commerce - Count I
First, there was an agreement between two or more persons to commit at least one crime as charged in the indictment; and
Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it.
Third, commerce from one state to another was affected in some way.
Possession of a Firearm In Furtherance of a Crime of Violence -Count II
First, the defendant committed the crime of conspiracy to commit robbery affecting commerce, a crime of violence, as charged in Count I of the indictment;
Second, the defendant knowingly possessed a firearm; and
Third, the defendant possessed the firearm in furtherance of the crime of conspiracy to commit robbery affecting commerce.

         Plea Agreement at 5-6.

         In exchange for Meza's guilty plea to all three counts, the United States agreed to dismiss additional charges pending against Meza in United States v. Roll, No. CR 11-132-BLG (D. Mont, filed Dec. 22, 2011). See Plea Agreement at 3-4 ¶ 3 para. 2. Meza pled guilty. See Minutes (Doc. 62).

         On July 12, 2012, Meza was sentenced to serve 43 months on Counts 1 and 6, concurrently, and 60 months on Count 2, consecutive to Counts 1 and 6, for a total term of 103 months in prison. Minutes (Doc. 80); Am. Judgment (Doc. 93) at 2. Meza did not appeal.

         Meza now seeks relief under the United States Supreme Court's recent decision in Johnson v. United States, ___U.S. ___, 135 S.Ct. 2551 (2015).

         II. Merits

         Everyone would agree that a person who plans to use a firearm to commit a robbery is planning to use or at least threaten violence. Meza's plan for committing a robbery included using a firearm. But that does not necessarily mean he possessed a firearm in furtherance of a "crime of violence" within the meaning ofl8U.S.C. § 924(c).

         A. "Crime of Violence"

         Congress does not penalize everyone who uses a firearm to commit a crime. It does not even penalize everyone who uses a firearm as a weapon in committing a crime. It penalizes:

any person who, 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). Congress penalizes those who use a firearm to commit certain kinds of crimes, federal drug trafficking crimes and federal crimes of violence.

         Drug trafficking is not at issue here. The question is whether Meza possessed a firearm in furtherance of a "crime of violence." Congress defines the term:

For purposes of this subsection [§ 924(c)] the term "crime of violence" means 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 person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3).

         A person who trades a firearm for advice on how to commit tax fraud arguably uses the firearm during and in relation to tax fraud, or at least possesses the firearm in furtherance of tax fraud. Cf. Watson v. United States, 552 U.S. 74, 76 (2007); Smith v. United States, 508 U.S. 223, 241 (1993). But § 924(c) could not apply to that person, because tax fraud is not a "crime of violence"-that is, it does not have force as an element, and it does not "by its nature" involve a substantial risk that force will be used.

         A person who uses a firearm to extort advice on how to commit tax fraud is at least threatening to use violence, and might even use violence, during and in relation to the crime of tax fraud. It would be reasonable to authorize punishment for using a firearm in that manner. Congress once did so. See Omnibus Crime Control Act of 1970, Pub. L. No. 91-644, tit. II, § 13, 84 Stat. 1889, 1890 (Jan. 2, 1971) (authorizing additional one- to ten-year penalty for using a firearm to commit or unlawfully carrying a firearm during commission of "any felony" prosecutable in court of the United States); Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, § 1005(a), 98 Stat. 1837, 2138-39 (Oct. 12, 1984) (replacing former § 924(c) with provision imposing five-year sentence for using or carrying a firearm during and in relation to a crime of violence); see also Firearms Owners' Protection Act, Pub. L. No. 99-308, § 104(a)(2)(F), 100 Stat. 449 (May 19, 1986) (enacting definition of "crime of violence" currently found in § 924(c)(3)).

         But Congress does not do so now. Since 1984, Congress has limited the instances in which a person can be punished for using or carrying a firearm in criminal activity. Section 924(c) could not apply to a person who uses a firearm to extort tax fraud advice, ...


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