324 F. Supp. 3d 719
E.D. Va.2018Background
- Royer pleaded guilty (Jan. 2004) to aiding and abetting the use/discharge of a semi‑automatic pistol in relation to a crime of violence (Count 1, 18 U.S.C. § 924(c)) and to an explosives offense (Count 2); Statement of Facts described his facilitation of travel and training with Lashkar‑e‑Taiba members in Pakistan.
- He was sentenced in April 2004 to 240 months (consecutive 120 months on Count 1 plus concurrent terms) and later reduced to time served; released to supervised release in Dec. 2016.
- After authorization from the Fourth Circuit, Royer filed a successive § 2255 motion (2016) arguing that § 924(c)(3)(B)’s residual‑clause definition of “crime of violence” is unconstitutionally vague under Johnson and Dimaya.
- Government argued the motion was untimely, procedurally defaulted, that § 371 (conspiracy) qualifies under the force clause, and that § 924(c)(3)(B) can be saved by a conduct‑specific reading.
- Court concluded Royer’s § 2255 filing was timely under § 2255(f)(3), excused any procedural default (actual innocence and cause/prejudice), held the conspiracy predicate did not meet the force clause, and—applying constitutional avoidance—reinterpreted § 924(c)(3)(B) to a conduct‑specific test and found Royer’s predicate conduct did not satisfy it; Count 1 vacated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under 28 U.S.C. § 2255(f)(3) | Royer relied on Dimaya/Johnson; filed within one year of those decisions | Government: Dimaya/Johnson didn’t "recognize" a right applicable to § 924(c) so motion untimely | Motion timely: Dimaya recognized a right invalidating residual clauses with ordinary‑case + ill‑defined risk features; §2255(f)(3) satisfied |
| Procedural default / standing to raise vagueness | Royer: excused default via actual innocence and cause/prejudice given Johnson/Dimaya novelty | Government: Royer forfeited by not raising at trial/appeal; must show innocence of dismissed charges too | Default excused: Royer showed actual innocence of the narrow §924(c) conduct and sufficient cause and prejudice; Bousley inapplicable here |
| Force clause (§924(c)(3)(A)) applicability | Royer: §371 conspiracy does not have an element of use/attempted/threatened force | Government: conspiracy inherently "portends" use of force and thus qualifies as a threatened use | Held: §371 lacks an element requiring use/attempted/threatened force; it does not satisfy the force clause |
| Residual clause (§924(c)(3)(B)) — interpretation and vagueness | Royer: ordinary‑case categorical approach renders clause unconstitutionally vague (Dimaya) | Government: courts should adopt a conduct‑specific construction under constitutional avoidance so clause can stand | Held: Constitutional avoidance permits reading §924(c)(3)(B) conduct‑specifically for §924(c) cases; applying that test, Royer’s co‑defendants’ actual conduct did not present a substantial risk of force, so Count 1 vacated |
| Facial vagueness / mootness | Royer: may bring facial vagueness challenge; collateral consequences persist despite supervised release | Government: no standing if conduct is in the statute's "core"; moot because Royer is on supervised release | Held: Facial challenge allowed (Johnson/Dimaya precedent); Royer’s conduct was not in the core; case not moot due to collateral consequences |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause void for vagueness)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (§16(b) residual clause void for vagueness; explains ordinary‑case + ill‑defined risk problem)
- United States v. Brown, 868 F.3d 297 (4th Cir. 2017) (§2255(f)(3) requires a Supreme Court decision that "recognizes" a right in a definite way)
- United States v. Adams, 814 F.3d 178 (4th Cir. 2016) (actual‑innocence principle for collateral attack on predicate status)
- Nijhawan v. Holder, 557 U.S. 29 (2009) (statutory "offense" language can be read conduct‑specific)
- INS v. St. Cyr, 533 U.S. 289 (2001) (constitutional‑avoidance canon: interpret statute to avoid serious constitutional question when fairly possible)
- United States v. Fuertes, 805 F.3d 485 (4th Cir. 2015) (prior Fourth Circuit use of ordinary‑case approach to §924(c)(3)(B))
- Bousley v. United States, 523 U.S. 614 (1998) (actual‑innocence rule and scope when government dismissed other charges)
- Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson retroactive on collateral review)
- Descamps v. United States, 570 U.S. 254 (2013) (categorical approach and Sixth Amendment concerns)