UNITED STATES of America, v. Donald Earl TAYLOR, also known as Michael Dickens, Defendant.
Criminal No. 03-10 (CKK) Civil Action No. 16-1241 (CKK)
United States District Court, District of Columbia.
Signed 08/09/2017
272 F. Supp. 3d 127
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
As the D.C. Circuit put it, “[an] agency is not obligated, nor is it able, to disclose a record it does not have.” DeBrew v. Atwood, 792 F.3d 118, 123 (D.C. Cir. 2015). The TSA conducted a diligent search for responsive records and found none. That is all that the law requires.
CONCLUSION
The Court will, accordingly, grant the Department‘s motion for summary judgment, Dkt. 11.
A separate order will issue.
Tony W. Miles, Federal Public Defender for D.C., Washington, DC, for Defendant.
MEMORANDUM OPINION
(August 9, 2017)
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
Presently before the Court are Defendant Donald Earl Taylor‘s [23] Motion Under
I. BACKGROUND
On December 10, 2002, Mr. Taylor was arrested and dеtained after a criminal complaint was filed against him. On January 9, 2003, an indictment was filed charging Mr. Taylor with one count of unlawful possession of a firearm and ammunition by a person convicted of a crime punishable by imprisonment for one year or more pursuant to
This matter proceeded to sentencing on July 22, 2003. At that time, a person convicted of a
The Court sentenced Mr. Taylor to a term of imprisonment of 15 years (180 months) followed by a term of supervised release of 3 years (36 months). In imposing this sentence, the Court found that Mr. Taylor was subject to a 15-year mandatory minimum in light of his prior convictions. Judg. in Cr. Case, Stmt. of Reasons at 1 (“Armed Career Offender, 15 yrs. mandatory minimum“); Sent‘g Hrg. Tr. (July 22, 2003), at 15:7-10, ECF No. [26-1] (“[T]he court doesn‘t have any choice about the 15 mandatory minimum sentence.“). Specifically, the Court recognized that Mr. Taylor had: a 1994 conviction for assault with intent to rape in Prince George‘s County, Maryland, PSR ¶ 29; a 1999 conviction for assault with a dangerous weapon in the District of Columbia, PSR ¶ 31; and a 2001 conviction for distribution of cocaine in the District of Columbia, PSR ¶ 32. See Sent‘g Hrg. Tr. (Jul. 22, 2003), at 4:9-13. As reflected in the Presentence Investigation Report, Mr. Taylor was subject to a mandatory minimum term of imprisonment of 15 years pursuant to the ACCA,
On June 26, 2015, the Supreme Court of the United States (“Supreme Court“) in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), held that the residual clause of the ACCA,
With respect specifically to Mr. Taylor‘s arguments regarding the applicability of certain provisions of the U.S.S.G., the Court notes that the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit“) extended the reasoning of Johnson to the U.S.S.G., finding that the similarly worded residual clause of U.S.S.G. § 4B1.2(b) also is unconstitutional under the void-for-vagueness doctrine. United States v. Sheffield, 832 F.3d 296, 312-13 (D.C. Cir. 2016). However, after briefing was complete on the instant motion, the Supreme Court in Beckles v. United States, ___ U.S. ___, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017), held that the residual clause of U.S.S.G. § 4B1.2(a)(2) is not void for vagueness because the U.S.S.G. are not subject to a vagueness challenges under the due process clause. Id. at 890. The Supreme Cоurt noted that its holding did not render the U.S.S.G. immune from constitutional scrutiny, including scrutiny under the due process clause. Id. at 895-96. Rather, the majority opinion of the Supreme Court held specifically that the void-for-vagueness doctrine was inapplicable to the advisory U.S.S.G. Id. at 896. The Supreme Court explained: “Unlike the ACCA, ... the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court‘s discretion in choosing an appropriate sentence within the statutory range.” Id. at 892. The Supreme Court also noted that the U.S.S.G. were initially binding but were subsequently rendered advisory by the Court through its decision in United States v. Booker, 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Id. at 893-94. As noted above, Mr. Taylor was sentenced prior to Booker.
Given that Beckles was decided after the instant motion was briefed, neither party has discussed the import, if any, of the Supreme Court‘s decision in Beckles to Mr. Taylor‘s conviction and sentence imposed prior to Booker. See id. at 903 n.4 (Sotomayor, J., concurring) (“The Court‘s adherence to the formalistic distinction between mandatory and advisory rules at least leaves open the question whether defendants sentenced to terms of imprisonment before our decision in ... Booker may mount vagueness attacks on their sentences.“).
The Court has determined that it need not reach this issue of the applicability of the U.S.S.G. at this juncture. Rather, the Court‘s analysis shall focus on whether Mr. Taylor‘s prior offenses constitute violent felonies under the ACCA. For the reasons described below, the Court finds that Mr. Taylor was improperly sentenced to a mandatory minimum sentence under the ACCA and, accordingly, must be resentenced. As such, the Court shall allow the parties to make any arguments regarding the applicability of the U.S.S.G. in the memoranda in aid of sentencing prior to resentencing.
II. LEGAL STANDARD
Under
III. DISCUSSION
A. Procedural Requirements
The Government first argues that Mr. Taylor‘s claims are not properly before this Court for several reasons. Generally, a criminal defendant may bring a § 2255 within one year of the date upon which his or her judgment of conviction becomes final or within one year of certain other events which essentially reset the cloсk on the one-year period. See generally
1. This Court‘s Reliance on the Residual Clause at Sentencing
First, the Government asserts that Mr. Taylor has not demonstrated that this Court actually relied on the residual clause of the ACCA with respect to Mr. Taylor‘s prior convictions. While it is true that the record in this case does not conclusively show that the Court relied on the residual clause of the ACCA rather than the elements clause at the time of sentenc-
As District Judge Paul L. Friedman recognized, to hold otherwise would create an “absurd result.” United States v. Booker, No. CR 04-0049 (PLF), 240 F.Supp.3d 164, 168-70, 2017 WL 829094, at *4 (D.D.C. Mar. 2, 2017). At the time of Mr. Taylor‘s sentencing, a court was not required to specify which clause it was relying on to find that the particular offenses qualified as violent felonies under the ACCA and U.S.S.G. Id. at 167-68. Nor is it likely that a sentencing judge would have seen the need to make such a specification several years (in this case, nearly 12 years) before the Supreme Court declared the residual clause unconstitutional. Further, prior convictions that did not meet the requirements of the elements clause often satisfied the residual clause. Id. As such, to impose the restriction advanced by the Government, certain criminal defendants would be barred from raising an otherwise cognizable claim under Johnson (2015) because the sentencing judge did not specify which clause she was relying on at a time when that was not required and it could not have been foreseen that such a specification was necessary. As such, the Court accepts that Mr. Taylor must show only that this Court may have relied on the residual clause in order to proceed.
As a practical matter, it is clear from the record that the Court imposed the 15-year term of imprisonment as a mandatory minimum in light of the prior convictions. As discussed further below, the Court considered two of Mr. Taylor‘s prior offenses as “violent felonies” under the ACCA. The Court did not specify in reaching this determination whether it was relying on the elements clause or the unconstitutional residual clause. As such, the Court has determined this is a sufficient showing in order for Mr. Taylor‘s claims under Johnson (2015) to proceed.
2. Timeliness of Mr. Taylor‘s Claims
The Government next argues that Mr. Taylor‘s claims are untimely because the claims actually are based on the Supreme Court‘s decision in Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (“Johnson (2010)“), not Johnson (2015), and, as such, should have been raised within one year of the former decision. In Johnson (2010), the Supreme Court held that the term “physical force” as included in the elements clause of the ACCA means “violent force—that is, force capable of causing physical pain or injury to another person.” Johnson (2010), 559 U.S. at 140. As discussed above, in Johnson (2015), the Supreme Court found the residual clause of the ACCA unconstitutionаl.
Here, the Government is correct that Mr. Taylor relies in part on the Supreme Court‘s decision in Johnson (2010) in his arguments that his Maryland assault with intent to rape and D.C. assault with a dangerous weapon convictions do not qualify as “violent felonies” under the elements clause of the ACCA or “crimes of violence” under the U.S.S.G. in light of the definition
3. Procedural Default
The Government argues that Mr. Taylor‘s claims are barred by the procedural default rule which “generally precludes consideration of an argument made on collateral rеview that was not made on direct appeal, unless the defendant shows cause and prejudice.” United States v. Hughes, 514 F.3d 15, 17 (D.C. Cir. 2008). “The procedural default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law‘s important interest in the finality of judgments.” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).
Here, it is undisputed that Mr. Taylor did not previously raise his claims. However, Mr. Taylor asserts that he has demonstrated cause and prejudice sufficient to overcome the procedural default rule. Further, Mr. Taylor notes he is not requesting that the Court vacate his conviction, but rather that the Court simply correct his sentence. The Government asserts that Mr. Taylor has procedurally defaulted his claims because: (1) he agreed as part of the plea that he would likely be considered an Armed Career Criminal and agreed at sentencing that the prior convictions were “violent felonies“; and (2) he failed to argue before this Court or on appeal that the residual clause was unconstitutionally vague or that his prior convictions would not satisfy the rеquirements of the elements clause. While the Government raises each of these arguments, it only fleshes out its argument that Mr. Taylor should have raised his Johnson (2010) claims regarding the definition of a violent felony under the elements clause either before this Court or on direct appeal because these claims were not so novel at the time of sentencing that their legal basis was not reasonably available. Indeed, the Government‘s position is that Mr. Taylor has not demonstrated “cause” for failing to raise those arguments before this time. See Govt.‘s Opp‘n at 11-13. The Court finds that Mr. Taylor has not procedurally defaulted his claims for the reasons described herein.
As an initial matter, the Court emphasizes that Mr. Taylor‘s failure to raise his claims related to the elements clause of the ACCA can only be considered in the context of the timing of Mr. Taylor‘s plea and sentencing, which was when the residual clause was available as an alternative basis to find that a particular conviction qualified under the ACCA. The Court rejects the Government‘s position that the Court must consider whether Mr. Taylor made an argument that his priоr convictions did not qualify under the elements clause when the residual clause had not yet been declared unconstitutional. As such, the issue before the Court is whether Mr. Taylor can demonstrate cause and prejudice for failing to argue that his two prior convictions were not “violent felonies” un-
Turning first to the issue of cause, the Supreme Court explained that “futility cannot constitute cause if it means simply that a claim was ‘unacceptable to that particular court at that particular time.‘” Bousley, 523 U.S. at 623 (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)). However, “a claim that ‘is so novel that its legal basis is not reasonably available to counsel’ may constitute cause for a procedural default.” Id. at 622 (quoting Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984)). First, as the D.C. Circuit noted, “it is fair to say that no one—the government, the judge, or ... [the defendant]—could reasonably have anticipated Johnson [(2015)].” Redrick, 841 F.3d at 480. Indeed, on two separate occasions following Mr. Taylor‘s sentencing, the Supreme Court upheld the constitutionality of the ACCA‘s residual clause before ultimately finding it void for vagueness in Johnson (2015). See generally Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011); James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). Moreover, the Supreme Court has unequivocally announced that the rule in Johnson (2015) is applicable retroactively on collateral review. The Court agrees with other district courts in this jurisdiction that until the Supreme Court‘s decision in Johnson (2015), there was no reasonable basis to challenge the constitutionality of the residual clause and this is sufficient to establish cause. See Booker, 240 F.Supp.3d at 170-71 (Friedman, J.); United States v. Brown, No. CR 09-358 (EGS), 249 F.Supp.3d 287, 292-93, 2017 WL 1383640, at *4 (D.D.C. Apr. 12, 2017) (Sullivan, J.); Wilson, 249 F.Supp.3d at 310-12 (Huvelle, J.).
Turning next to the issue of prejudice, a defendant must show that “there is a reasonable probability that, but for [the errors], the result of the proceeding would have been different.” United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003) (quoting United States v. Dale, 140 F.3d 1054, 1056 n.3 (D.C. Cir. 1998)). Here, Mr. Taylor asserts that he was improperly subjected to a 15-year mandatory minimum sentence under the ACCA that, in light of the Supreme Court‘s holding in Johnson (2015), is not applicable to him. Certainly, if Mr. Taylor‘s claims have merit, he has sufficiently demonstrated that he was prejudiced by being improperly sentenced to a mandatory minimum term of imprisonment. The Court finds this is sufficient to establish prejudice for the purposes of thе procedural default rule. However, whether Mr. Taylor was actually prejudiced requires a review of the merits of his claims.
B. Merits of Mr. Taylor‘s § 2255
Here, Mr. Taylor argues that he no longer qualifies for an enhanced sentence under the ACCA in light of the Supreme Court‘s holding in Johnson (2015). The record in this case does not clarify which clause of the ACCA this Court relied on in applying the 15-year mandatory minimum. As previously mentioned, the Court considered three of Mr. Taylor‘s prior convictions: a D.C. conviction for distribution of cocaine; a Maryland conviction for assault with intent to rape (“AWIR“); and a D.C. conviction for assault with a dangerous weapon (“ADW“). Mr. Taylor concedes that his conviction in D.C. for distribution of cocaine qualifies as a “serious drug offense.” Def.‘s Supp. Mot. at 5. As such, in light of the Supreme Court‘s ruling that the residual clause is unconstitutionally
The elements clause, codified at
In determining whether a particular offense fits within this definition, this Court must either apply the “categorical approach” or the “modified categorical approach.” The modified categorical approach is reserved for those rare instances where the statutory offense is divisible, and under that approach, the Court would be permitted to review certain documents to determine whether a particular offense included an element of violence. Sheffield, 832 F.3d at 314 (citing Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2283-84, 186 L.Ed.2d 438 (2013)). A statute is divisible when it “comprises multiple, alternative versions of the crime.” Descamps, 133 S.Ct. at 2284-85. See also Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243, 2251, 195 L.Ed.2d 604 (2016) (clarifying that a statute is divisible if it defines alternative “elements,” but not if it merely defines alternative “means” of committing the offense).
The parties in this case agree that the D.C. assault with a dangerous weapon statute is not divisible. Mr. Taylor further contends that the Maryland assault with intent to rape statute is not divisible, but the Government asserts in its Surreply that, “[if] the Court finds that an assault with intent to rape can encompass an assault with intent to commit a statutory rape that does not involve force,” it is arguable that the assault with intent to rape statute is divisible and the modified categorical approach can be used to permit review of the indictment and criminal jury instructions.3 See Govt.‘s Surreрly at 4-7 (emphasis added). Because the Court does not find that an assault with intent to rape encompasses a statutory rape that does not involve force, the Court need not reach the Government‘s alternative argument. Accordingly, in this case, the Court employs the categorical approach to analyze both statutes.
[I]n asking whether a prior crime qualifies as a violent felony, we look at the state or federal statute under which a defendant has been convicted and ask simply whether the elements of the prior crime meet the Act‘s definitions of a violent felony. If a prior conviction is based on a statute that sweeps more broadly than this federal definition—let us say, a conviction could be based on a minor battery—such a conviction cannot qualify as a violent felony under the force [or elements] clause.
Redrick, 841 F.3d at 482. In sum, the Court must employ a twо-step process. First, the Court must determine the elements of the state law offenses at issue. Second, the Court must determine whether the force required to commit the state law offense is equivalent to the force required by
Maryland AWIR conviction
In order to establish the Maryland AWIR offense pursuant to
The parties’ arguments center around two main issues: (1) the amount of force required to commit the crime of rape in Maryland which is relevant to the Court‘s inquiry; and (2) the amount of force required to commit the crime of AWIR in Maryland which is the determinative issue before the Court. The Court shall address each argument in turn. The Government argues that “where an assault is committed with the specific intent and purpose to rape, the resulting crime necessarily requires the use, attempted use, or threatened use of physical force.” Govt.‘s Opp‘n at 14. Specifically, the Government argues that the requisite level of force is necessary to be convicted of Maryland AWIR because the crime of rape in Maryland qualifies as a violent felony and, as such, an assault with the attempt to commit a violent felony must satisfy the elements clause. Mr. Taylor contests the Government‘s argument that the crime of rape necessarily requires the requisite use of force required under the elements clause of the ACCA.
At the time of Mr. Taylor‘s conviction, Maryland enacted statutes to criminalize first and second degree rape. First degree rape criminalizes the act of vaginal intercourse with another by force or the threat of force and without the consent, coupled with other aggravating circumstances, such as the use or display of a weapon. Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 462. Neither party disputes that first degree rape would qualify as a violent felony under the ACCA. Second degree rape does not include the aggravating circumstances required for first degree rape. Rather, second degree rape requires a person to engage in vaginal intercourse with another person:
(1) By force or threat of force against the will and without the consent of the other person; or
(2) Who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless; or
(3) Who is under 14 years of age and the person performing the act is at least four years older than the victim.
Garnett v. State, 332 Md. 571, 632 A.2d 797, 798 (1993) (quoting Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 463).
As Mr. Taylor points out, Maryland AWIR covers an assault with the intent to commit not just first degree rape, but also second degree rape. See Walker v. State, 53 Md.App. 171, 452 A.2d 1234, 1245 (1982) (“The intended rape for the statutory assault need only be a generalized rape in the second degree with none of the special violence that makes for rape in the first degree.“). Mr. Taylor contends that second degree rape in Maryland can be committed with the use of no force because it includes statutory rape, “a strict liability offense that does not require the State to prove mens rea.” Garnett v. State, 332 Md. 571, 632 A.2d 797, 804 (1993). While Mr. Taylor is correct that statutory rape, a type of second degree rape, does not require the use, attempted use, or threatened use of physical force capable of causing physical pain or injury to another person, the offense of AWIR requires proof that the criminal defendant had “a purpose to carry into effect this intention with force and against the consent of the female.” As such, the statute contemplates that the intended rape must be forcible and non-consensual.
Given that the elements of the AWIR preclude Mr. Taylor‘s argument that a defendant may have the intent to commit a
The Court is then left to determine whether an assault (a crime that does not qualify as a violent felony under the elements clause) with the intent to commit a forcible rape (a crime that does qualify as a violent felony under the elements clause) has violent force (the use, attempted use, or threatened use of physical force capable of causing physical pain or injury to another person) as an element. See United States v. Chacon, 533 F.3d 250, 255 (4th Cir. 2008), cert. denied 555 U.S. 1140, 129 S.Ct. 1000, 173 L.Ed.2d 298 (2009) (finding that a violation of the first subpart of the Maryland second degree rape statute plainly constitutes a crime of violence because it has an element of the use or threat of force). Here, a criminal defendant convicted of Maryland AWIR would have been convicted, at a minimum, based on the attempted use of violent force capable of causing physical pain or injury to another person necessary to commit a forcible rape. As such, the Court finds that Maryland AWIR satisfies the elements clause of the ACCA.
While the Supreme Court left open the issue of whether a court may consider not just the relevant state statute‘s text, but alsо the judicial ruling interpreting it, the Court notes that Maryland caselaw supports this Court‘s holding.5 Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2291, 186 L.Ed.2d 438 (2013); Redrick, 841 F.3d at 482 n.5 (D.C. Cir. 2016). The Court of Appeals of Maryland explained that “[t]o constitute the crime of an assault with intent to rape, the indictment must charge force, and the proof must establish, beyond a reasonable doubt, that the attempt was committed with force, to justify a conviction.” Weinecke v. State, 188 Md. 172, 52 A.2d 73, 75 (1947) (emphasis added) (distinguishing the crime of assault with intent to rape from assault with intent to have carnal knowledge of a woman child under the age of fourteen years which does not require proof that the attempt was made with force); see Christensen v. State, 33 Md.App. 635, 365 A.2d 562, 565 (Md. Ct. Spec. App. 1976) (distinguishing between assault with intent to rape and attempted rape which does not require an assault). Further, the Court of Special Appeals of Maryland explained, “[A]ssault with intent to rape would seem to qualify as a specific form of the more general crime of attempted rape.” Walker v. State, 53 Md.App. 171, 452 A.2d 1234, 1245 (Md. Ct. Spec. App. 1982). Indeed, the court reasoned,
Although it is easy to imagine an attempted rape not involving an assault, ... it is difficult to imagine an assault with intent to rapе that would not, ipso facto, constitute an attempted rape. The intent element already being present, the act of assault would certainly qualify, under attempt law, as the “act in furtherance of that intent going beyond mere preparation.”
Id. (internal citation removed) (quoting Gray v. State, 43 Md.App. 238, 403 A.2d 853, 855, 857 n.7 (Md. Ct. Spec. App. 1979)).
The parties have not pointed to, nor has the Court been able to locate, caselaw that appears to clarify the level of force necessary to satisfy this requirement of the AWIR statute, nor do the elements of the offense appear to require any force above that required to commit an assault. However, caselaw demonstrates two important points: (1) Maryland AWIR requires an attempt committed with force; and (2) Maryland AWIR appears to constitute an attempted rape coupled with an assault and the specific intent to commit a rape. As such, the Maryland offense of AWIR at a minimum requires an attempt committed with force to commit a forcible rape, an offense which requires the requisite level of violent force. The Court finds that the Maryland offense of AWIR necessarily includes at a minimum an element of the attempted use (although it may also include the use or threatened use) of violent force—that is, force capable of causing physical pain or injury to another person—because it requires the specific intent to carry out a rape through the use of force or threatened use of force and an attempt coupled with some level of force to achieve that end.
a. D.C. ADW conviction
The offense of D.C. ADW, codified at
(1) “an attempt, with force or violence, to injure another, or a menacing threat, which may or may not be accompanied by a specific intent to injure;” (2) “the apparent present ability to injure the victim;” (3) a general “intent to commit the acts which constitute the assault;” and (4) “the use of a dangerous weapon in committing the assault.”6
Spencer v. United States, 991 A.2d 1185, 1192 (D.C. 2010) (quoting Williamson v. United States, 445 A.2d 975, 978-79 (D.C. 1982)): This first three elements constitute a simple assault in D.C. and the fourth element is unique to the crime of ADW. Id. Mr. Taylor advances two arguments as to why D.C. ADW does not satisfy the elements clause of the ACCA: (1) D.C. ADW can be violated without the use of violent physical force; and (2) D.C. ADW can be violated with a recklеss mens rea. The Court shall address each in turn.
With respect to the requisite use of force, the Government concedes that D.C. simple assault does not require the use of violent force contemplated by the ACCA because it may be carried out through the mere use of a menacing threat. As such, the Court focuses its analysis on the additional requirement of “the use of a dangerous weapon in committing the assault.” While “[n]ot every crime becomes a crime of violence when committed with a deadly weapon,” United States v. Rede-Mendez, 680 F.3d 552, 558 (6th Cir. 2012), the Court is required to look at the elements of this particular offense. Mr. Taylor relies primarily on the definition of a dangerous weapon in D.C., which Mr.
The D.C. Court of Appeals recognized that any object “may constitute a dangerous weapon under an aggravated assault statute when used in a manner likely to cause great bodily harm, and that an object‘s dangerousness is ordinarily a question for the jury.” In re D.T., 977 A.2d 346, 350 (D.C. 2009). Mr. Taylor then argues that some objects that would be considered “dangerous weapons” under the statute, like “poison, a tranquilizer, a barrier, and hazardous chеmicals,” do not require the use of violent, physical force. Def.‘s Supp. Mot. at 27. To bolster this position, Mr. Taylor points to two cases in which lye was considered a dangerous weapon for the purposes of a conviction under the D.C. ADW statute, see Tatum v. United States, 110 F.2d 555, 556 (D.C. Cir. 1940); Sloan v. United States, 527 A.2d 1277, 1280 (D.C. 1987), and one in which a spray bottle of gasoline was considered a dangerous weapon, Savage-El v. United States, 902 A.2d 120, 214-25 (D.C. 2006).
The Government asserts that Mr. Taylor‘s arguments regarding the requisite use of force for the offense of D.C. ADW offense are foreclosed by the D.C. Circuit‘s recent opinion in United States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016). In Redrick, the D.C. Circuit held that the Maryland offense of armed robbery qualifies as a violent felony under the elements clause. Id. at 485. Similar to the crime at issue here, the D.C. Circuit found in Redrick that robbery in Maryland is not a violent felony. Id. at 482. However, the D.C. Circuit found that the Maryland offense of armed robbery required the “use of a dangerous or deadly weapon.” Id. at 484. Relying on this point, the D.C. Circuit distinguished the Maryland crime from the Massachusetts crime of armed robbery which the United States Court of Appeals for the Ninth Circuit previously held did not constitute a violent felony under the elements clause. Id. (citing United States v. Parnell, 818 F.3d 974 (9th Cir. 2016)). The D.C. Circuit in Redrick noted that the Massachusetts statute, unlike the Maryland offense, did not rеquire the “use” of a dangerous or deadly weapon in that the victim did not even need to be aware of the presence of the weapon.7 Id. The D.C. Circuit found the Maryland offense distinguishable because of the requirement of the “use” of the weapon. Id.
The D.C. Circuit also focused on the type of weapon that would constitute a dangerous or deadly weapon for the purposes of the crime of Maryland armed robbery. The Maryland offense indeed has a more extensive definition than that provided for D.C. ADW. Specifically, a “deadly or dangerous weapon” for the crime of Maryland armed robbery is defined as an instrument:
(1) designed as ‘anything used or designed to be used in destroying, defeating, or injuring an enemy, or as an instrument of offensive or defensive combat‘; (2) under the circumstances of the case, immediately useable to inflict serious or deadly harm (e.g., unloaded gun or starter‘s pistol useable as a bludgeon); or (3) actually used in a way likely to inflict that sort of harm (e.g., microphone cord used as a garrote).
The D.C. Circuit‘s opinion in Redrick is instructive in this Court‘s analysis for a number of reasons. First, both Maryland robbery and D.C. assault (without the use of a weapon) are not violent felonies under the elements clause of the ACCA because they do not require the requisite use of physical force. Second, both Maryland robbery and D.C. assault are necessarily crimes against a person. See id. Third, both Maryland armed robbery and D.C. ADW have an element requiring the use of a dangerous weapon (the Maryland offense also allows for use of a “deadly” weapon). Finally, while the Maryland offense of armed robbery has a lengthier definition of what constitutes a “deadly or dangerous weapon,” the last provision of the definition is similar to definition used for the D.C. ADW offense. Indeed, the Maryland definition includes an instrument “actually used in a wаy likely to inflict that sort of harm [serious or deadly] (e.g., microphone cord used as a garrote),” and the D.C. definition is an object “used in a manner likely to cause great bodily harm.”
Mr. Taylor makes two arguments as to why the D.C. Circuit‘s decision in Redrick is distinguishable. First, Mr. Taylor asserts that the D.C. definition of a dangerous weapon sweeps more broadly than that of the Maryland definition. The Court rejects this argument based on the third clause of the Maryland definition which the Court finds substantially similar to the D.C. definition as described above. Second, Mr. Taylor asserts that that there is a realistic probability that D.C. ADW, unlike Maryland armed robbery, would be accomplished through the use of materials requiring less than violent physical force. Indeed, as previously discussed, Mr. Taylor relies on the cases in which D.C. ADW convictions were supported through the use of lye and gasoline. The Court agrees with Mr. Taylor that unlike the Maryland offense of armed robbery, it is far more likely that an assault with a dangerous weapon would be accomplished through the use of an object like a poison that could be administered without the use of violent physical force as required under the ACCA.8 C.f. Brоwn, No. CR 09-358 (EGS), 249 F.Supp.3d 287, 296-97, 2017 WL 1383640, at *7 (D.D.C. Apr. 12, 2017) (finding that the North Carolina offense of assault with a deadly weapon with intent to kill was not a violent felony under the ACCA‘s elements clause because at least one case reflected a conviction based on a secret poisoning). As such, the Court agrees that a person could be convicted of D.C. ADW without using the requisite violent, physical force necessary to qualify as a violent felony under the ACCA.
Turning next to the issue of the requisite mens rea, the parties agree that reckless conduct is sufficient to support a conviction for D.C. ADW. Vines v. United States, 70 A.3d 1170, 1180 (D.C. 2013), as amended (Sept. 19, 2013) (“[A] conviction
Three Supreme Court cases addressing similarly worded provisions of two different statutes are of particular importance in reaching a decision on this issue. In 2004, the Supreme Court addressed whether a conviction in Florida for driving under the influence of alcohol and causing serious bodily injury classified as a “crime of violence” under
In 2014, the Supreme Court addressed the meaning of the phrase “the use ... of physical force,” as referenced in
In 2016, the Supreme Court again discussed
Two district court judges in this jurisdiction have sided with Mr. Taylor‘s argument that a statute requiring only the reckless application of force does not meet the requirements of the ACCA‘s elements clause. Indeed, District Judge Jаmes E. Boasberg recently accepted this argument at a sentencing hearing and held that D.C. ADW does not constitute a violent felony under the elements clause of the ACCA because it covers reckless conduct.10 United States v. Haight, Case No. 1:15-cr-00088 (D.D.C.), Sent‘g Hrg. Tr. (Dec. 1, 2016), at 3-8, ECF No. [106]. Further, District Judge Emmet G. Sullivan recently addressed the North Carolina crime of assault with a deadly weapon with intent to kill and reached a similar conclusion. Brown, No. CR 09-358 (EGS), 249 F.Supp.3d 287, 296-99, 2017 WL 1383640, at *7-*9. Judge Sullivan noted that the majority of courts to reach this issue have found a conviction that only requires a mens rea of recklessness does not satisfy the elements clause of the ACCA. See id. at 296-97 (citing Bennett v. United States, Nos. 94-11, 16-251, 2016 WL 3676145, at *3 (D. Me. July 6, 2016) (collecting cases)). While the state statute at issue in that case is distinguishable in that it merely required culpable or criminal negligence, rather than recklessness, Judge Sullivan‘s analysis remains persuasive. Id. at 298-99.
Specifically, as noted by Judge Sullivan, the Supreme Court previously defined “force” as used in the ACCA and in
The Court agrees that a state statute that requires the mere reckless application of force, such as D.C. ADW, does not meet the requirements of the elements clause of the ACCA. The Court notes that in reaching this conclusion, it reaches a contrary holding to some other courts addressing this issue. See, e.g., United States v. Howell, 838 F.3d 489, 501-02 (5th Cir. 2016), cert. denied ___ U.S. ___, 137 S.Ct. 1108, 197 L.Ed.2d 212 (2017) (holding that the mental state of recklessness is sufficient for an offense to qualify as a crime of violence under U.S.S.G. § 4B1.2(a)(1)); United States v. Fogg, 836 F.3d 951, 956 (8th Cir. 2016), cert. denied ___ U.S. ___, 137 S.Ct. 2117, 198 L.Ed.2d 203 (2017) (finding that reckless conduct constitutes the use of force under the ACCA). For the reasons described, the Court has determined that Mr. Taylor has only two, not three, qualifying convictions and, as such, is entitled to be resentenced because he was improperly subjected to a 15-year mandatory minimum sentence pursuant to
IV. CONCLUSION
For the foregoing reasons, the Court finds that Mr. Taylor is entitled to have his sentence corrected. Specifically, the Court finds that Mr. Taylor‘s prior conviction for
An appropriate Order accompanies this Memorandum Opinion.
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE