Lead Opinion
Opinion concurring in part and concurring in the judgment filed by Circuit Judge MILLETT.
Pablo Lovo, Joel Sorto and Yonas Eshe-tu were friends. On September 5, 2013, they met an undercover police officer at a Washington, D.C., storage facility in preparation for a robbery. But before departing for the robbery, the police arrested them. The three were tried by a jury and convicted of conspiracy. Lovo and Sorto were also convicted of using, carrying or possessing a firearm during a crime of violence. For the following reasons, we affirm the district court in all but one claim; that one .claim is remanded.
I. BACKGROUND
The Plotted Bobbery
At least twice in 2012 and 2013, defendant Lovo helped his friend, Jonathan Avila, obtain drugs to sell to “Santos.” Unbeknownst to Lovo, however, Avila was cooperating with law enforcement -and “Santos” was Miguel Rodriguezgil, an officer with the District of Columbia Metropolitan Police Department (MPD).
During summer 2013, Rodriguezgil began investigating Lovo for a different crime-conspiracy to rpb a liquor. , store.
A second meeting .followed on August 16. This time, Lovo met with Rodriguezgil and Janice Castillo, a special agent with the United States Bureau of Alcohol, Tobacco,, Firearms and Explosives (ATF). Castillo posed as a courier for a drug-trafficking organization. Disgruntled because the organization failed to pay her, Castillo proposed robbing its cocaine “stash house.” Lovo expressed interest and, again, emphasized his crew’s experience robbing brothels.
Rodriguezgil and Lovo made plans to meet a third time and did so on August 24 at another Washington, D.C,, restaurant. This time, Lovo was accompanied by his friend, defendant Sorto. Rodriguezgil told the two men that Castillo was,,meeting with another potential robbery crew in New York because she was worried about Lovo’s crew’s inexperience. Lovo protested and also volunteered to supply guns for the robbery,, including a “TEC-9” semiautomatic pistol. Sorto interjected that he would be armed with a machete. The three continued to discuss- the robbery’s target and logistics and concluded their meeting with the understanding that Rodriguezgil
Rodriguezgil and Lovo spoke by telephone several days later. Rodriguezgil proposed meeting so that he could show Lovo a vehicle suitable for the robbery. They met on September 2. Lovo arrived in a Kia; Rodriguezgil in an SUV. Lovo examined it, including a secret compartment Rodriguezgil suggested could hide the guns and the two parted ways. The next time they would see one another was the day set for the robbery.
On the evening of September 5, Rodri-guezgil and Lovo met at a storage unit in Northwest Washington, D.C., outfitted to resemble a cocaine-processing facility. Ro-driguezgil arrived in the same undercover vehicle as before; Lovo drove his Kia and was accompanied by Sorto, defendant Yo-nas Eshetu and two other men. Rodriguez-gil removed a gun from his person, stored it in his vehicle’s secret compartment and told Lovo to do the same. Lovo and Sorto then opened the Kia’s trunk but did not retrieve any weapons from it. Instead, they manipulated a bag in the trunk and left it there. Lovo explained to Rodriguez-gil that he intended to leave the guns in the Kia because they might use two vehicles in the robbery.
The men then entered the storage facility and Rodriguezgil closed its door behind them. Once inside, Raul Cruz, Jr., another conspirator, demanded to see whether Ro-driguezgil was concealing anything under his clothes. Rodriguezgil insisted they do the same and Cruz removed a large butcher knife and a shank from his person. Rodriguezgil again told them they were free to back out but they wanted to proceed. In Rodriguezgil’s estimation, Eshetu assumed something of a leadership role, assigning his confederates specific tasks for the robbery. The meeting ended when Rodriguezgil opened the storage unit gate from within and waiting police officers arrested the defendants.
The Prosecution, Conviction and Post-Trial Motion
After the arrest, MPD Officer Jason Best drove the Kia to an MPD facility. There, he searched the car’s interior but not its glove compartment or trunk. He recovered a bag and some black clothing. An MPD officer drove the car to an ATF facility where it was secured pending a second, more thorough search. After obtaining a warrant, an MPD officer searched the car on September 6 and recovered, among other items, a TEC-9 and other pistols, wire, ammunition, magazine clips, a facemask wrapper and two long machetes.
On September 12, a grand jury indicted Lovo, Sorto and Eshetu on one count of conspiring to interfere with interstate commerce by robbery, see 18 U.S.C. § 1951, and a second count of using, carrying or possessing a firearm during a crime of violence and aiding and abetting that offense, see 18 U.S.C. §§ 2, 924(c).
Trial began on May 14, 2014. Rodriguez-gil and Castillo testified for the government. During their testimony, the prosecution played excerpts—often in Spanish— from video and audio recordings of their conversations with the defendants. Each witness repeatedly described the excerpt’s
Lovo also testified, offering a starkly different version of events. He asserted that the August 13 meeting was to discuss potential granite work for “Santos” (Rodri-guezgil). But during that meeting, Rodri-guezgil supposedly said his girlfriend had a proposed drug transaction she wished to discuss with Lovo. The men therefore arranged a time for Lovo to meet her. Although Lovo concedes the girlfriend—in truth, Castillo—proposed a robbery during their August 16 meeting, he claims to have told Rodriguezgil he was uninterested. But Lovo testified Rodriguezgil nevertheless asked Lovo to sell him weapons and he agreed.
The jury returned its verdict on May 28, 2014. It found Lovo and Sorto guilty on both counts but Eshetu guilty only on the conspiracy charge. In March 2015—nearly ten months after the jury returned its verdicts—Lovo moved for a judgment of acquittal or a new trial, arguing, inter alia, entrapment, outrageous government conduct, selective prosecution and various arguments pertaining to 18 U.S.C. § 924(c), the firearm statute Sorto and Lovo were convicted of violating. The district court denied the motion, rejecting it as untimely and largely without merit.
II. ANALYSIS
Lovo, Sorto and Eshetu raise a number of challenges on appeal. In our view, only four merit discussion.
Motion To Suppress
The defendants challenge the district court’s denial of their motion to suppress evidence removed from the Kia on September 5. They argue that Best’s search— conducted, as it was, without a warrant— violated the Fourth Amendment. We consider the issue de novo, United States v. Holmes,
The Fourth Amendment provides that
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const, amend. IV. “Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, th[e] [Supreme Court] has inferred that a warrant must generally be secured.” Kentucky v. King,
We believe this exception covers Best’s search. As we have explained before, “all that is required for an automobile to be ‘readily mobile’ within the meaning of the automobile exception is that it is ‘used on the highways, or ... is readily capable of such use.’” United States v. Williams,
Probable cause also existed, to search the car. Probable cause, we have said, is “more than bare suspicion but ... less than beyond a reasonable doubt” or even “a preponderance of the evidénce.” United States v. Burnett,
Section 924(c) Conviction
Lovo and Sorto also maintain we must vacate their , convictions for using, carrying or possessing a firearm during a crime of violence. In their view, the portion of the statutory crime-of-violence definition that affects them—set forth in 18 U.S.G. § 924(c)(3)(B)—is , . unconstitutionally vague. We disagree. Before we address the merits, we must respond to the government’s contention that they have; waived the argument,
The government contends Lovo and' Sorto cannot attack section 924(c)(3)(B)’s constitutionality now because they failed to do so before trial. For this contention, they rely on Federal' Rule of Criminal Procedure 12, which, before December 2014, provided that certain enumerated motions were “waive[d]” if not raised before trial. Fed. R.- Crim. P. 12(b)(3), (e) (2013). But the government overlooks important language included in Rule 12: “[A]t any time while the case is pending, the court may hear a claim that the indictment .., fails ... to state an offense[,]” Id. 12(b)(3)(B). Challenging section 924(c)(3)(B)’s constitutionality undoubtedly qualifies, See, e.g., United States v. Seuss,
It is true that this carve-out was deleted in .December 2014. But we conclude that deletion—effected after their May 2014 trial—does not retroactively foreclose their challenge here. The United States Supreme Court announced that new Rule 12 applies to pending proceedings only “insofar as just and practicable[.]” Supreme
Turning to the merits, we conclude Lovo’s and Sorto’s section 924(c) challenge must fail. Their argument is rooted in the Fifth Amendment, which guarantees no person shall be “deprived of life, liberty, or property, without due process of law[.]” U.S. Const, amend. V. This provision “prohibits the Government from taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Beckles v. United States, 580 U.S. -,
Section 924(c) generally penalizes using, carrying or possessing a firearm “during and in relation to,” inter alia, a federally cognizable “crime of violence,” 18 U.S.C § 924(c)(1)(A). Its “residual , clause” defines a crime of violence .to include any 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.” Id. § 924(c)(3)(B).
Lovo’s and Sorto’s challenge analogizes to one of those statutes—the Armed Car-reer Criminal Act of 1984 (ACCA), See 18 U.S.C. § 924(e). The ACCA imposes a heightened minimum sentence on a felon who illegally possesses a firearm and has previously been convicted of three or more qualifying offenses, including a “violent felony.” Id. § 924(e)(1). The ACCA defines “violent felony” to include “any crime punishable by imprisonment for a term exceeding one year .., 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[.]” Id. § 924(e)(2)(B) (emphasis added). The italicized language is also known as the “residual clause.”
In Johnson v. United States, the United States Supreme Court struck down the ACCA residual clause as unconstitutionally
The second problematic feature was “uncertainty about how much risk it takes for a crime to qualify as a violent felony.” Id. at 2558. The uncertainty stemmed from the ACCA’s enumeration of four specific crimes immediately before the residual clause that were meant to “illustrate the kinds of crimes that fall within the statute’s scope,” Begay v. United States,
Lovo and Sorto contend section 924(c)(3)(B) contains the same defects. We conclude it stands on surer footing, however, for several reasons. First and most obviously, it contains no “confusing list” of enumerated crimes. Id. at 2561. The ACCA list made it harder to determine whether a crime described in the residual clause was a violent felony. See id. (“The phrase ‘shades of red,’ standing alone, does not generate confusion or unpredictability; but the phrase ‘fire-engine red, light pink, maroon, navy blue, or colors that otherwise involve shades of red’ assuredly does so.” (emphasis in original) (internal quotation marks omitted)). Reviewing courts had to “analogiz[e] the level of risk involved in a defendant’s conduct” to crimes that were themselves dissimilar. United States v. Taylor,
Second, section 924(c)(3)(B) calls for a different sort of risk assessment from that of the ACCA. Unlike the ACCA, which asks whether an offense presents a “potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii), section 924(c)(3)(B) requires a “substantial risk that physical force ... may be used in the course of committing the offense[,]” id. § 924(c)(3)(B) (emphasis added). “[Ijnjury” and “force” are very different things. Injury is often a crime’s consequence; force, its method of execution. Estimating the risk of physical injury can be difficult. See Johnson,
Third, section 924(c)(3)(B) contains a temporal limitation not included in the ACCA. Section 924(c)(3)(B) considers the
These differences may seem subtle but experience confirms their significance. The Supreme Court noted “repeated attempts and repeated failures to craft a principled and objective standard out of the [ACCA’s] residual clause.” Johnson,
We recognize that both residual clauses require a court to employ the categorical approach. Although we also recognize that “[t]he vagueness of the [ACCA] residual clause rest[ed] in large part on its operation under the categorical approach,” Welch v. United States, 578 U.S. —,
We must also determine whether section 924(c)(3)(B) classifies conspiracy to commit a Hobbs Act robbery as a “crime of violence.” We conclude it does. A Hobbs Act robbery conspiracy has three elements—(1) an agreement to commit Hobbs Act robbery between two or more persons, (2) the defendant’s knowledge of the conspiratorial goal and (3) the defendant’s voluntary participation in furthering the goal. In re Pinder,
Video and Audio Recordings Evidence
The defendants’ next challenge focuses on the video and audio recordings of their meetings with law enforcement. The recordings were often in Spanish and unaccompanied by English translations. Nevertheless, they were played for the jury and Rodriguezgil and Castillo testified as to their contents. The defendants contend this was improper because it-allowed Ro-driguezgil and Castillo to, in effect, summarize the meaning of otherwise unintelligible conversations.
The defendants did not object to the recordings’ admission at trial and, so, our review is limited to correcting plain error only. See Fed. R. Crim. P. 52(b). “Pursuant to plain error review, an appellant must demonstrate (1) that there was an error, (2) that the error was clear or obvious, (3) that it affected the appellant’s substantial rights, and (4) that it seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Gooch,
Here, we believe the district court erred but not plainly so. Generally speaking, the decision to admit tape recordings “falls within the sound discretion of the trial court.” United States v. White,
Ineffective Assistance of Counsel
The Sixth Amendment guarantees a criminal defendant the right to reasonably effective legal assistance. Roe v. Flores-Ortega,
Establishing ineffective assistance of counsel “is never an easy task.” Padilla v. Kentucky,
We follow that course here. Entrapment is a defense comprising “two related elements,” viz., “government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct.” Mathews v. United States,
So too with the defendants’ contention that counsel should have objected to the recordings’ admission. The record does not contain sufficient evidence for us to weigh counsel’s performance or any resulting prejudice. As our earlier discussion makes clear, we believe an objection to thé tapes’ admission could have been upheld. But that does not necessarily mean counsel was deficient in failing to object. Cf. United States v. Vyner,
For the foregoing reasons, we affirm the car-search, section 924(c) and tape-recordings claims and remand the ineffective-assistance-of-counsel claim.
So ordered.
Notes
. We draw these facts from the evidence adduced at trial. Lovo presented a different version of the facts which we discuss infra.
. 2013 is the year of1 all relevant actions unless otherwise noted. ■
. Cruz and a fifth defendant, Ariel Flores, were also indicted but both men pleaded guilty.
. The government also contends the defendants lacked standing to contest ■ Best’s search. As we have previously said, however, “Fourth Amendment ‘standing’ ,. . has nothing to do with jurisdiction[;]’’ it is “merely an aspect of the substantive merits of a Fourth Amendment claim[.]’’ Sheffield,
The defendants also challenged the officer’s search of the Kia’s trunk, which uncovered multiple weapons. We affirm, the district court's denial of the motion to suppress that search as well. At bottom, the defendants' argument reduces to ⅜, fact dispute about whether the search warrant was issued before or after the trunk’s search and we find no clear error in the district court’s finding that the' search of the trunk occurred after the warrant issued.
. The Rules Enabling Act grants the Supreme Court "the power to prescribe general rules of practice and procedure .,, for cases in the United States district courts.” 28 U.S.C, § 2072(a). The High Court is generally permitted to “fix the extent” to which amended rules apply to pending proceedings. Id. § 2074(a).
. Section 924(c) alternatively defines a crime of violence as a felony that "has as an element . the use, attempted use, or threatened use of physical force against the person or properly of another[.]’’ 18 U.S.C. § 924(c)(3)(A).
. Even if we did not use the categorical approach, we would nonetheless conclude that Lovo’s and Sorto’s offense—as they committed it—was a crime of violence. The men planned a robbery, which crime necessarily involves at least a threat of force. See 18 U.S.C. § 1951(b)(1). They met Rodriguezgil with a car full of weapons. And they repeatedly declared their desire to see the plot through. A "substantial risk” of "physical force against [another] person” plainly-.inhered in their conduct,.
. We do not think any alleged sound-quality problem with the recordings was serious enough to make their admission plain error.
. Although we have considered the defendants' remaining arguments, we find them without merit. Among other arguments, they contend that the district court should have entered a judgment of acquittal or ordered a new trial because the government’s "reverse sting” investigatory technique amounted to selective enforcement. See Appellants’ Br. 50-52 (citing United States v. Black,
Concurrence Opinion
concurring in part and concurring in the judgment:
I join all of the.court’s opinion except its analysis of the Defendants’ challenge to their convictions under 18 U.S.C. § 924(c). With respect to that issue, I would take a somewhat different path to rejecting the constitutional challenge and to concluding that a Hobbs Act conspiracy to commit robbery qualifies as a crime of violence under Section 924(c).
A
As the court’s opinion explains, this case arises in the wake of the Supreme Court’s holding in Johnson v. United States, — U.S. —,
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) * * * 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); see id. § 924(c)(1)(A) (limiting the provision to federal offenses). The Defendants were convicted under subsection (B), which is commonly referred to as the “residual clause,” and they argue that it suffers from the same vagueness problems that rendered ACCA’s residual clause unconstitutional.
In my view, the answer to this question is far closer than the court’s opinion indicates. The Achilles’ heel of ACCA was that statute’s use of the categorical approach. See Welch v. United States, — U.S. —,
We analyze Section 924(c)’s residual clause through that same troublesome categorical lens, United States v. Kennedy,
First, the Supreme Court has suggested as much. That matters to a lower federal court like us. In Leocal v. Ashcroft,
To be sure, the Supreme Court is currently considering a constitutional vagueness challenge to Section 16(b) in the wake of Johnson. See Dimaya v. Lynch,
Second, unlike ACCA’s residual clause, Section 924(c)’s residual clause does not contain a list of comparator crimes. Compare 18 U.S.C. § 924(e)(2)(B)(ii) (defining a violent felony as one 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”), with 18 U.S.C. § 924(c)(3)(B) (defining a crime of violence as one “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 in Johnson was explicit that the enumerated offenses in ACCA’s residual clause made things con
Indeed, in distinguishing ACCA’s residual clause from the “dozens of federal and státe criminal laws [that] use terms like ‘substantial risk,’ ‘grave risk,’ and ‘unreasonable risk,’” the Court explained that ‘■[a]lmost none of the cited law links a phrase such as ‘substantial risk’ to a confusing list of examples.” Id. at 2561 (emphasis added); Section 924(c) likewise is not plagued by such an unwieldy list of comparator offenses.
Third, the role that the recondite categorical analysis fulfills for Section 924(c) is far more limited than in AC'CA because Section 924(c) applies only to federal crimes. Compare 18 U.S.C. § 924(e)(1) (explaining that ACCA’s sentencing enhancement applies to “a person who violates section 922(g) of this title and has three convictions by any court referred to in section 922(g)(1)”) (emphasis added), and id. § 922(g)(1) (“It shall be unlawful for any person who has been convicted in any court”) (emphasis added), with id. § 924(c)(1)(A) (applying to crimes of violence “for which the person may be prosecuted in a court of the United States”) (emphasis added). See also United States v. Gonzales,
As a result, in determining whether there is a substantial risk that physical force will be used in the commission of a crime, federal courts need only to analyze the nature of that particular federal crime; they need not try and discern some sort of cross-jurisdictional, common character for an. offense that could be articulated fifty different ways by fifty different States, as ACCA required. See, e.g., Sykes v. United States,
Fourth, determining whether a criminal offense entails a substantial risk that physical force will be used is not an uncommon legal inquiry, and thus there is already jurisprudential scaffolding that gives structure to the Section 924(c) inquiry. See 18 U.S.C. § 3156(a)(4)(B) (defining a “crime of violence” for the purposes of release and detention statutes as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of
For those reasons, I conclude that Section 924(c)’s residual clause is not unconstitutionally vague under Johnson.
B
The court’s opinion also holds that Hobbs Act conspiracy to commit robbery qualifies as a crime of violence within the meaning of Section 924(c). Again I agree, but for somewhat different reasons.
Under this court’s precedent, by which this panel is bound, in a Hobbs Act conspiracy, we may look to the object of the conspiracy—either robbery or extortion— to determine if the conspiracy itself is a crime of violence. See Kennedy,
The object of the conspiracy here was robbery, and the Hobbs Act defines its robbery offense as the taking of property from another “by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property[.]” 18 U.S.C. § 1951(b)(1). As such, Hobbs Act robbery itself would seem to be a crime of violence under Section 924(c)’s elements clause, 18 U.S.C. § 924(c)(3)(A), without any need to resort to the residual clause. See Kennedy,
Given this circuit’s precedent, I join the court’s judgment that conspiracy to commit Hobbs Act robbery is a crime of violence under Section 924(c).
. That provision provides that "[t]he term ‘crime of violence' means * * * (b) any other offense that is a felony and 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. § 16(b).
. Every criminal statute with which the Supreme Court wrestled in its "attempts] to discern [the] meaning" of ACCA’s residual clause was a state criminal statute. See Johnson,