United States District Court, D. Montana, Billings Division
AMENDED ORDER GRANTING § 2255 MOTION AND SETTING
L. Christensen, Chief Judge United States District Court.
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
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.
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
Third, commerce from one state to another was affected in
Possession of a Firearm In Furtherance of a Crime of Violence
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.
Agreement at 5-6.
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.
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
now seeks relief under the United States Supreme Court's
recent decision in Johnson v. United States, ___U.S.
___, 135 S.Ct. 2551 (2015).
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).
"Crime of Violence"
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.
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
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(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).
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.
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)).
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