Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. United States

United States Court of Appeals, Eleventh Circuit

November 12, 2019

MICHAEL BROWN, Petitioner - Appellant,
v.
UNITED STATES OF AMERICA, Respondent - Appellee.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket Nos. 0:16-cv-61156-JIC, 0:14-cr-60174-JIC-1

          Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

          PER CURIAM.

         Michael Brown appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate his conviction under 18 U.S.C. § 924(c)(1)(A) and the corresponding sentence. The government opposed Brown's motion in the district court. The government also objected to the magistrate judge's Report and Recommendation recommending that Brown's motion be granted. Now, however, because of intervening events, the government moves jointly with Brown for summary reversal of the district court's order. For the reasons below, we grant that motion and remand for resentencing.

         I.

         A. Brown's Underlying Conviction

         In July 2014, a federal grand jury indicted Brown for (1) conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 1); (2) conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(b)(1)(A) (Count 2); (3) attempted possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) (Count 3); (4) conspiracy to use a firearm during and in furtherance of a crime of violence and drug-trafficking crime, in violation of 18 U.S.C. § 924(o) (Count 4); and (5) carrying and possessing "a firearm during and in relation to a crime of violence and a drug trafficking crime," in violation of 18 U.S.C. §§ 2, 924(c)(1)(A) (Count 5). The indictment specifies Counts 1 through 3 as predicate offenses for Count 5.

         Therefore, as indicted, Count 5, brought under § 924(c)(1)(A), invokes 18 U.S.C. § 924(c)(2), defining "drug trafficking crime," and § 924(c)(3), defining "crime of violence." Section 924(c)(3), in turn, which lies at the heart of this appeal, defines "crime of violence" as either an offense that has as an element, at a minimum, the attempted or threatened use of physical force, or an offense that by its nature involves a substantial risk that physical force will be used. 18 U.S.C. § 924(c)(3). We commonly refer to these clauses as the "elements clause" and the "residual clause," respectively. See, e.g., In re Hammoud, 931 F.3d 1032, 1040 (11th Cir. 2019).

         Returning to Brown's case, after he was indicted, Brown struck a deal with the government. Under its terms, Brown "agree[d] to plead guilty to Counts 1 and 5 of the indictment." As to Count 5 specifically, the parties' plea agreement states that "Count 5 charges [that] the defendant did . . . knowingly use and carry a firearm . . . during and in relation to a crime of violence, that is, a violation of" § 1951(a), "as set forth in Count 1[.]" Gone from this version of the § 924(c) charge to which Brown actually agreed to plead guilty is any mention of the "drug[-]trafficking[-]crime" language from the indictment. And further, in exchange for Brown's agreement to plead guilty to the plea agreement's reformulated version of Count 5, the government agreed to dismiss Counts 2 and 3, the substantive drug-trafficking-related charges, and Count 4.[1]

         Consistent with the terms of the plea agreement, during the plea colloquy, the district court asked Brown whether he understood that Count 5 charged him with using "a firearm during the commission of a crime of violence." Notably, just like the plea agreement, the court did not mention in its statement of the charge to which Brown was agreeing to plead guilty Brown's alleged use of a firearm during the commission of a drug-trafficking crime. Brown stated that he understood the charge to which he was pleading guilty. The government then recited the elements of Count 5, stating that for Brown to be found guilty, he must have (1) "committed the crime of violence charged in Count 1" and (2) "knowingly used, carried and possessed" a firearm "in furtherance of the [C]ount 1 crime of violence." (emphasis added). Brown agreed the government correctly stated the elements, and he pled guilty. The district court accepted Brown's plea and adjudged him guilty of conspiracy to commit Hobbs Act robbery and "of Count 5, use of a firearm during a commission of a crime of violence."

         The court later sentenced Brown to a total of 90 months' imprisonment. That sentence consisted of 30 months' imprisonment for Count 1, and a consecutive 60 months' imprisonment for Count 5.

         The parties agree that Brown has completed the 30-month sentence imposed for Count 1. Nevertheless, Brown remains in prison serving his 60-month sentence for Count 5. Therefore, if Brown and the government are correct in their view that Brown's § 924(c) conviction can no longer stand, Brown might be eligible for immediate release.

         B. Brown's § 2255 Motion, Davis, and This Appeal

         On May 31, 2016, Brown filed a pro se 28 U.S.C. § 2255 motion to vacate his conviction and sentence, claiming that conspiracy to commit Hobbs Act robbery-the crime that underlaid his Count 5 § 924(c) conviction-failed to qualify as a crime of violence under § 924(c)(3), in light of Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Court struck down the residual clause of the Armed Career Criminal Act's ("ACCA") definition of "violent felony" as unconstitutionally vague. 135 S.Ct. at 2556-58, 2563. Since the ACCA's residual clause and § 924(c)(3)'s residual clause are very similar, Brown's motion argued, § 924(c)(3)'s residual clause, like the ACCA's residual clause, is likewise void for vagueness.

         A magistrate judge recommended granting Brown's motion. But based on our then-recently decided Ovalles v. United States, 861 F.3d 1257 (11th Cir. 2017), [2] the district judge denied the motion. In short, Ovalles held that Johnson did not apply to or invalidate § 924(c)(3)'s residual clause. See 861 F.3d at 1263-67. So the district court rejected Brown's motion because Johnson's ruling did not extend to ยง 924(c)(3)'s residual clause, and it concluded that conspiracy is a crime of violence under the residual clause when ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.