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United States v. Birdinground

United States District Court, D. Montana, Billings Division

June 28, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
QUINTON BIRDINGROUND, JR., Defendant/Movant.

          ORDER GRANTING § 2255 MOTION AND SETTING RE-SENTENCING

          Susan P. Watters, United States District Court.

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

         I. Background

         On February 21, 2003, Birdinground was indicted on one count of second-degree murder, a violation of 18 U.S.C. § 1111(a) (Count 1); one count of assault resulting in serious bodily injury, a violation of 18 U.S.C. § 113(a)(6) (Count 2); and one count of using or carrying and discharging a firearm during and in relation to "Assault and Murder," a violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count 3). Indictment (Doc. 10) at 2.

         After a four-day jury trial, Birdinground was convicted on all three counts. Verdict (Doc. 57) at 1, 3. On March 11, 2004, he was sentenced to serve 168 months on Count 1, 120 months on Count 2, and a consecutive ten-year term on Count 3, for a total term of 288 months. Minutes (Doc. 64); Judgment (Doc. 65) at 1-2. Birdinground appealed. His conviction was affirmed on December 8, 2004, and became final on March 8, 2005. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).

         Birdinground 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 uses a firearm as a weapon in the course of committing a crime is using or at least threatening to use violence. Birdinground used a firearm as a weapon in committing a crime. But that does not necessarily mean he is guilty of using or carrying a firearm or possessing one in furtherance of a "crime of violence" within the meaning of 18 U.S.C. § 924(c).

         A. "Crime of Violence"

         Congress penalizes those who use a firearm to commit federal drug trafficking crimes and federal crimes of violence. Pursuant to 18 USC §924(c)(1)(A), a person who does the following will be penalized:

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[.]

         Drug trafficking is not at issue here. The question is whether Birdinground used or carried a firearm or possessed one in furtherance of a "crime of violence." Congress defines the term as follows:

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, because tax fraud does not meet Congress's definition of a crime of violence.

         B. Categorical Approach

         Birdinground committed second-degree murder. The question is whether voluntary manslaughter meets Congress's definition of a "crime of violence."

         Here, the key characteristic of Congress's definition of a "crime of violence" is that it applies to categories of crimes, not to the circumstances in which an individual defendant uses or carries or possesses a firearm. Necessarily so, using a firearm as a weapon to commit a crime would make any crime a violent one. But if that was what Congress intended, the phrase "crime of violence" would be superfluous.

         Congress uses the identical phrase, "crime of violence," elsewhere in Title 18, see § 16. It uses a similar phrase, "violent felony," elsewhere in § 924, at subsection 924(e)(2)(B). As to both § 924(e)(2)(B) and § 16, courts use a "categorical approach" to decide whether a given crime fits Congress' definition. This approach looks "only to the statutory definitions" of the crime, "not to the particular facts underlying" an individual defendant's commission of the crime. Taylor v. United States, 495 U.S. 575, 600 (1990); see also United States v. Sherbondy, 865 F.2d 996, 1009-10 (9th Cir. 1988) (holding that district court may look only "to the statutes establishing the crimes," not "the individual defendant's specific conduct in committing the ... offense."), cited in Taylor, 495 U.S. at 600.

         Both § 924(e)(2)(B) and § 16 have a different function than § 924(c). They are used to characterize an individual defendant's prior convictions in order to determine whether his or her criminal record justifies new consequences, such as a higher penalty for a new offense or removal from the United States. Prior convictions may be incurred in at least 51 different jurisdictions and may have widely varying elements and contexts, so they may or may not warrant new consequences. For instance, a person convicted of "extortion" in a jurisdiction where the State must prove the defendant used a firearm as a weapon is not really comparable to a person convicted of "extortion" in a jurisdiction where the State need only prove the defendant contacted other people and threatened to publicly humiliate them unless they paid at least $1, 000.

         Section 924(c) does not concern prior convictions. The drug trafficking crime or crime of violence supporting a § 924(c) charge must be one "for which the person may be prosecuted in a court of the United States." 18 U.S.C. § 924(c)(1)(A). So the predicate crime will always be a federal crime, not one that will be defined in different jurisdictions. Further, the United States usually prosecutes the predicate crime at the same time as the § 924(c) charge, as it did in this case. As a result, there is an opportunity under § 924(c) to try the facts, with all the due process protections of a criminal trial. That opportunity does not exist under § 924(e)(2)(B) or § 16. A court could, under § 924(c), look to facts to decide whether a particular crime was a "crime of violence" in view of the way the defendant committed it. Cf. United States v. Robinson, 844 F.3d 137, 144 (3d Cir. 2016) (reasoning that the question is not whether a crime is a crime of violence but whether that crime, if committed while brandishing a firearm, is a crime of violence); see also Answer (Doc. 89) at 20-21. Maybe using a firearm as a weapon to compel someone to assist tax fraud should qualify as using a firearm during and in relation to a crime of violence under § 924(c)(1)(A).

         But whether it should or not is not an open question. The Ninth Circuit has long required courts use the categorical approach to interpret § 924(c)(3) just as they interpret § 924(e)(2)(B) and § 16. See United States v. Benalty, 843 F.3d 350, 352 (9th Cir. 2016); United States v. Amparo, 68 F.3d 1222, 1224-26 (9th Cir. 1995). Section 924(c) only penalizes those who use a firearm to commit some crimes. For the penalty to apply, the predicate crime to a § 924(c) conviction must always be a "crime of violence," regardless of how a particular defendant might commit the crime, and regardless of whether a firearm is used or carried or possessed in furtherance of it. "A crime cannot categorically be a 'crime of violence' if the statute of conviction punishes any conduct not encompassed by the statutory definition of a 'crime of violence."" Benally, 843 F.3d at 352.

         The next question is whether second-degree murder, as defined in federal law, is a "crime of violence," either because it "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," or because, "by its nature, [it] 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). To answer this question, the Court must use the categorical approach.

         C. The Residual Clause, § 924(c)(3)(B)

         Second-degree murder always "involves a substantial risk that physical force against the person ... of another may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3)(B). Causing someone's death even without an intent to kill, and even while trying not to harm or kill, may be second-degree murder. But even when murder is not done intentionally, it always involves strong forces, either in a gross physical sense, as when a drunk driver strikes a pedestrian, or in a minute chemical sense, as in a poisoning. And even if "use" has a specific meaning (more on that below), the residual clause only requires a substantial risk that force may be used, not that it must be used or attempted or threatened every time.

         This is where Birdinground's reliance on Johnson comes in. Johnson concerned a phrase in § 924(e)(2)(B) (the "Armed Career Criminal Act," or "ACCA"), defining a "violent felony" as a felony 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.'''' 18 U.S.C. § 924(e)(2)(B)(ii). Johnson held the italicized portion, commonly called the residual clause, unconstitutionally vague.

         18 U.S.C. § 16(b) is a similar though not identical clause to § 924(c)(3)(B). Section 16(b) defines a "crime of violence" as a felony "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.'"'' On April 17, 2018, the United States Supreme Court affirmed the Ninth Circuit Court of Appeals in holding that the residual clause of § 16(b) is unconstitutionally vague under the rule of Johnson. See Sessions v. Dimaya, No. 15-1498, slip op. at 24-25 (U.S. Apr. 17, 2018).

         Even after Dimaya, § 924(c)(3)(B) might not necessarily be unconstitutionally vague, but it is in the Ninth Circuit. Amparo and Benally hold that § 924(c)(3)(B) is applied by using categorical analysis, and that method lies at the heart of Johnson and Dimaya. As the Supreme Court succinctly explained in Welch v. United States, __ U.S. __, 136 S.Ct. 1257 (2016), Johnson held that § 924(e)(2)(B)(ii) "failed not because it adopted a 'serious potential risk' standard but because applying that standard under the categorical approach required courts to assess the hypothetical risk posed by an abstract generic version of the offense." Id. at 1262 (emphasis added). Acknowledging that some crimes might be "clearly risky," the Court nevertheless held the clause unconstitutionally vague and unenforceable in any case. See Johnson, 135 S.Ct. at 2560-61.

         Likewise, in Dimaya, the Supreme Court said:

[Section] 16(b) has the same two features that conspired to make ACCA's residual clause unconstitutionally vague. It too requires a court to picture the kind of conduct that the crime involves in the ordinary case, and to judge whether that abstraction presents some not-well-specified-yet-sufficiently-large degree of risk. The result is that § 16(b) produces, just as ACCA's residual clause did, more unpredictability and arbitrariness than the Due Process Clause tolerates.

Dimaya, No. 15-1498, slip op. at 11 (U.S. Apr. 17, 2018) (internal quotation marks, brackets, and citations omitted).

         This Court is not able to imagine how § 924(c)(3)(B), which is textually identical to § 16(b) and also applied by using categorical analysis, could be salvaged. At least in the Ninth Circuit at this time, it is unconstitutionally vague.

         D. The Elements Clause, § 924(c)(3)(A)

         1. ...


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