Defends 924(c) dismiss motion…

Ryan Payne’s public defenders filed a lengthy objection to Magistrate Judge Peggy A. Leen’s Report and Recommendation (ECF No. 1218). Her report suggests that the Court should allow counts 3, 6, 9, and 15 stand on the superseding indictment for trial. These “stacked” or “enhancement” counts of 18 USC § 924(c), also known as “use and carry of a firearm in relation to a crime of violence”, carry near draconian statutory minimum sentence guidelines that would effectively incarcerate each defendant for life. Recent court decisions led to the scenario where Payne files objection regarding Leen’s recommendation.

In addition to the absurd potential sentence, § 924(c) charges continue to fall off of indictments due to recent Supreme Court and 9th Circuit rulings. Leen’s recommendation relies heavily on a dissenting opinion on a relevant case in the 9th Circuit rather than on the majority opinion, which is binding precedent for a nearly identically worded and applied statute.

Predicate offenses…

Charges under § 924(c) “enhance” another charge, known as the “predicate offense”. In this case, defendants face enhanced § 924(c) counts on the following predicate offenses:

• Count 2 – 18 USC § 372 – Conspiracy to Impede
• Count 5 – 18 USC § 111(a)(1) and (2) – Assault
• Count 8 – 18 USC § 115(a)(1)(B) and (2) – Threatening
• Count 14 – 18 USC § 1951 and 2 – Extortion

Since these four charges receive § 924(c) enhancement, the Court must evaluate whether or not they constitute a “crime of violence”.

The “residual clause”…

Much of the argument revolves around § 924(c)’s residual clause. It reads:

(c)(3)(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 Supreme Court and 9th Circuit both regard similar statutes as “void for vagueness”. As such, they are unconstitutionally vague with regard to the Due Process clause of the 5th Amendment. Courts apply residual clauses that define a “crime of violence” or “violent felony” so inconsistently that no defendant can reasonably construe what behavior might result in the enhancement.

The “force clause”…

If the residual clause is unconstitutionally vague, the Court may only use the “force clause” to determine if a predicate offense qualifies as a crime of violence. The force clause in § 924(c) reads:

(c)(3): For purposes of this subsection 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.

The force clause is important because it looks to the definition of the statute to which it is applied. When this happens, the conduct of the defendant is immaterial. This means that a crime is either a “crime of violence” or it is not.  This provides a solid basis for why Payne files objection regarding Leen’s recommendation

Is the statute “divisible”?

Determination of vagueness on the residual clause means that the force clause is the only factor for determining if the predicate offense is a crime of violence under § 924(c). At this point, the court has to determine is a statute is divisible.

A divisible statute contains multiple elements of a crime. This simply means that there exists more than one crime in the statute. When this happens, the court looks to the indictment to see which element of the crime the defendant is alleged to have committed. These elements receive evaluation based on § 924(c)’s force clause.

If a statute is not divisible, then there is only one element to the crime. However, there may be multiple means to commit the crime, which simply indicates more than one way to commit the same crime. The whole of a single-element crime receives evaluation against § 924(c)’s force clause.

Payne files objection regarding Leen’s recommendation…

Payne’s counsel insists that:

• § 924(c)’s residual clause is void for vagueness
• additionally, that the charged predicate offenses are not divisible
• and finally, that none of the predicate offenses categorically match § 924(c)’s definition of a crime of violence

Leen’s recommendation deviates from current District Court trajectory in the 9th Circuit. There are multiple, recent rulings to drop 924(c) charges. All of them find § 924(c)’s residual clause void. Leen relies on a rigid interpretation of a recent 9th Circuit ruling, something other District Courts chose not to do.

Leen also finds that statutes subject to § 924(c)’s force clause are divisible. This is contrary to other findings in the 9th Circuit. Leen uses divisibility as an argument for applying 924(c)’s force clause.

Finally, Leen notes that the recent 9th Circuit decision is subject to “certiorari”. This means that the decision will be clarified by a higher court. In this case, the Supreme Court will have to resolve the Circuit Court split on the issue. In the meantime, the decision remains binding precedent in the 9th Circuit.

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