UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action Nos. 98-71-1, -6 (BAH)

BERNARD JOHNSON, et al. Judge Beryl A. Howell

Defendants.

MEMORANDUM OPINION

Petitioners Thomas Fields and Bernard Johnson are co-defendants convicted in 1999 on

dozens of charges—40 for Fields and 16 for Johnson—arising from violent kidnapping, rape,

attempted murder, conspiracy to participate in a Racketeer Influenced Corrupt Organization

(“RICO”), and various drug- and gun-related misdeeds stretching across years of their

involvement in the same gang throughout the 1990s. After their convictions at a three-month

jury trial, Fields was sentenced to imprisonment for life plus 105 years, and Johnson to 49 years

and four months. They both now seek to vacate their sentences via motions, under

.

In one set of motions, Fields and Johnson each challenge their convictions for using and

carrying a firearm during a “crime of violence,” under

(c). Both defendants

challenge their two § 924(c) convictions, in Counts 37 and 38, for use of a firearm in connection

with two separate instances of violence, namely, kidnapping, in violation of

,

and Maryland assault with intent to murder in aid of racketeering, in violation of

(a)(3), (a)(5). Johnson Supp. Mot. to Vacate (“Johnson Supp. Mot.”) at 1, ECF No. 481;

Fields Supp. Mot. to Vacate Based on Johnson and Davis (“Fields Supp. Johnson/Davis Mot.”)

at 1, 5, ECF No. 482. In addition, Fields also challenges his four other § 924(c) convictions, in 1 Counts 34, 40, 43, and 44, which are predicated on four separate instances of D.C. assault with

intent to kill while armed in aid of racketeering, in violation of

(a)(3), (a)(5).

In a second § 2255 motion, Fields seeks vacatur of his two life sentences without parole,

imposed for his convictions for RICO conspiracy to commit armed kidnapping, in violation of

(d) (Count 3), and kidnapping, in violation of

(a) (Count 12).

Fields Supp. Mot. to Vacate Based on Graham and Miller (“Fields Supp. Graham/Miller Mot.”)

at 1, 5, ECF No. 483.

Defendants are correct that one of their predicate offenses—namely, kidnapping, in

violation of

(a)—no longer qualifies as a “crime of violence” to support their

§ 924(c) convictions under the intervening Supreme Court decisions in Johnson v. United States,

(2015), and United States v. Davis,

(2019), and so their convictions

and sentences on Count 37 must be vacated. Their remaining challenges fail: all the other

§ 924(c) convictions at issue are predicated on offenses that still qualify as crimes of violence,

and Fields’s life sentences, imposed for crimes he committed at age 22, remain valid despite the

Supreme Court’s intervening decisions regarding the treatment of juvenile defendants.

I. BACKGROUND

Summarized below is factual background regarding petitioners’ offense conduct pertinent

to resolution of their instant collateral challenges, drawn largely from defendants’ original

sentencing and resentencing in 1999 and 2001, respectively, followed by an overview of the

procedural history.

2 A. Factual Background

Beginning in the 1980s, Thomas Fields, then a teenager known to his associates as

“Woozie,” joined a group known as the “L Street Crew,” selling crack cocaine under the

leadership of Fields’s cousin, Donnell Burroughs, in Southwest D.C. Fields Presentence

Investigation Report (“Fields PSR”) ¶ 43. 1 After Burroughs was shot and killed in 1990, Fields

took over the leadership role himself, supplying his associates with crack cocaine and other

drugs to sell throughout Southwest D.C. Id. ¶¶ 43–49. At that point, Fields’s cousin and,

ultimately, his co-defendant, Bernard Johnson, known as “Tadpole,” joined the gang. Id. ¶ 44.

Meanwhile, tensions grew between the L Street Crew and a rival drug gang, later known as the

“K Street Crew,” run by Vincent “Vito” Hill. Id. ¶¶ 50–55. Fields believed the K Street Crew

was behind Burroughs’s murder, leading to several shootings and other acts of retaliatory

violence that reached a fever pitch in the mid-1990s, as set out below. Id.

1. Shooting of Vito Hill

In July of 1996, following the murder at Fields’s suggestion of one of Hill’s close

associates, the L Street Crew conferred on how to avoid retaliation from Hill’s gang. Id. ¶¶ 56–

58. Fields instructed that killing Hill should be their next move, as a peremptory strike to leave

the rival gang incapacitated and without a leader. Id. ¶ 58. Plans for Fields and his associates to

kill Hill themselves were quickly abandoned, as the group reasoned that Hill would not allow

them, as known enemies, to get close enough to him to carry out the execution. Id. ¶ 59. Fields

ultimately decided to pay Eric Gordon, an acquaintance of one of the L Street Crew members

1 At sentencing, Judge Thomas Jackson, who presided over defendants’ jury trial, adopted the findings of fact contained in the Fields PSR ¶¶ 43–142, as properly “summariz[ing] the trial testimony and other evidence” presented at trial. See Fields Findings of Fact and Conclusions of Law ¶ 2, EFC No. 244.

3 and someone whom Hill did not already know, to commit the murder on his instructions. Id.

¶¶ 60, 62.

After L Street Crew members pointed out his target, Gordon approached Hill under the

pretense of wanting to buy marijuana, then pulled out a pistol and shot him in the chest at close

range. Id. ¶ 61. The gun jammed after the first shot—leaving Hill wounded but alive—and

Gordon was forced to flee before he could finish the job. Id. Gordon met up with Fields, who

begrudgingly paid him for the attempted murder, and Gordon then became a regular member of

the L Street Crew. Id. ¶ 62.

2. Kidnapping, Gang-rape, and Shooting of K.D.

A month later, on August 25, 1996, in apparent retaliation for Hill’s shooting, Gordon

and Fields’s young brother were shot repeatedly as they stood outside Fields’s house. Id. ¶ 63.

Fields informed the L Street crew members that K Street Crew member William “Draper”

Sweeney was to blame, and that Gordon’s girlfriend, K.D., must have given Draper their

location. Id. ¶¶ 63–64.

The next day, August 26, 1996, Fields and his crew exacted revenge. Fields had his gang

members lure K.D. to his house on the pretense that Fields would take her to the hospital to visit

the wounded Gordon. Id. ¶ 65. Upon her arrival, K.D. was forced at gunpoint into an upstairs

bedroom, where Fields, Johnson, and several other members of the gang were waiting for her,

several armed with additional guns. Id. Over the next several hours, Fields, Johnson, and the

others repeatedly raped, beat, and threatened to kill K.D. Id. ¶¶ 65–66. Fields called up other

gang members to laugh about the ongoing gang-rape and to invite them to join in; various other

men came to the house throughout the day at his invitation. Id. ¶ 66. Eventually, Fields directed

that K.D. be placed in the shower so the men could get rid of some of the evidence, and Johnson

4 forced her at gunpoint to clean herself after each series of rapes; Fields also instructed the others

to handcuff her as the brutalization continued. Id. ¶ 67. As the day wore on, the men came to a

consensus that they would have to kill K.D. Id. ¶ 68. Fields directed Johnson to carry out the

murder. Id.

Under cover of night, Johnson and two other crew members forced K.D. into a car and

drove her to a deserted road in Maryland. Id. K.D. begged for her life, at which point Johnson

forced her out of the car and told her to walk home. Id. After she had taken a few steps,

however, she turned around to see Johnson preparing to shoot her. Id. He shot her twice in the

head. Id. Left for dead, K.D. managed to survive her wounds and was eventually found alive by

law enforcement, severely injured and still handcuffed. Id.

3. Shootings of Anthony Chandler, Melonie Speight, and Sam Carson

The cycle of retaliatory violence between the two gangs continued in the following

months. On October 23, 1996, Fields’s crew member Joey Simmons was shot to death, in what

Fields believed was revenge for Simmons’s murder of a K Street Crew member the preceding

summer. Id. ¶¶ 56, 69. Fields and his associates identified Sam Carson as Simmons’s likely

shooter and set out to look for Carson the following day. Id. ¶¶ 69–70.

After some time spent driving around searching for Carson, they spotted another K Street

Crew member, Anthony Chandler. Id. ¶¶ 70–71. Although Chandler was not the original target,

Fields decided to seize the opportunity to settle another score, since Fields also harbored a

grudge against Chandler for the latter’s perceived involvement in the kidnapping of an L Street

Crew member six years earlier. Id. As Fields pulled the car up to Chandler, he shouted at the

other passengers to “Get him!”, while also firing directly at Chandler himself. Id. ¶ 71. In the

5 crossfire, one of Fields’s passengers was shot, and Fields was forced to abandon the attack on

Chandler to drive the injured passenger to the hospital, while Chandler escaped unscathed. Id.

Several months later, however, Fields and his crew caught up with Chandler again, when

they recognized his van driving past them on January 13, 1997. Id. ¶¶ 72–73. Fields pursued,

telling his associate to get ready to attack once they caught him. Id. ¶ 73. Once they pulled

alongside Chandler’s van, Fields yelled at his associate to “[h]urry up and shoot,” and the

associate fired several rounds into the van. Id. Chandler was wounded, and his pregnant fiancée,

Melanie Speight, who was sitting in the passenger seat, was shot through the neck. Id.

Two weeks later, Fields successfully caught up with Carson, as well. He approached a

new customer, Dominique “Damo” Gibson, the half-brother of one of his trusted associates, with

the offer of a cash payment for killing Carson. Id. ¶ 75. Damo accepted, and under the pretense

of buying some marijuana from Carson, shot him multiple times, badly wounding him. Id. ¶ 77.

Fields paid Gibson $1,500 for executing this attack on Carson. Id.

***

Fields’s and Johnson’s involvement with the L Street Crew continued over the course of

the following year, until their eventual arrest along with other gang members, in March 1998.

B. Defendants’ Convictions and Sentencings

In March 1998, a federal Grand Jury returned a 70-count indictment charging Fields,

Johnson, and nine other individuals with engaging in a Continuing Criminal Enterprise, RICO

conspiracy, and numerous drug trafficking and firearm offenses. See Indictment, ECF No. 3;

United States v. Fields (Fields I),

(D.C. Cir. 2001), on reh’g, (Fields II)

(D.C. Cir. 2001). In May 1999, Fields and Johnson alone were charged in a

superseding 64-count indictment, with 44 counts lodged against Fields alone while the remaining

6 20 counts charged both Fields and Johnson. See Retyped Superseding Indictment, ECF No.

229. 2 The superseding indictment charged defendants with, as relevant here, RICO conspiracy

(Count 3); the kidnapping, gang-rape, and assault with intent to murder in aid of racketeering

activity of K.D. (Counts 12–18); the assaults with intent to kill in aid of racketeering activity of

Hill (Count 7), Chandler (Count 23), Speight (Count 29), and Carson (Count 31); and firearms

offenses in connection with the kidnapping and assaults (Counts 34, 37–38, 40, 43–44). Id. 3

2 Out of the original eleven defendants, plus two additional defendants named in a superseding indictment, see Superseding Indictment, ECF No. 106, only Fields and Johnson would proceed to trial. Based on available records, Fields and Johnson’s co-defendants resolved their charges with guilty pleas and served out varying terms of incarceration. See, e.g., Eric Gordon Plea Agreement, ECF No. 95; Gordon Judgment, ECF No. 133 (sentencing Gordon to 276 months incarceration); Travel Riley Plea Agreement, EFC No. 135; Riley Judgment, ECF No. 132 (sentencing Riley to 60 months incarceration); Clinton Taylor Judgment, ECF No. 440 (reflecting Taylor’s guilty plea and sentence, in documents now unavailable); Norman Yusef Simmons Plea Agreement, ECF No. 208; Report and Recommendation at 1, ECF No. 404 (noting that N.Y. Simmons was sentenced to time served on April 10, 2002, after having pleaded guilty four years earlier); Troy Manny Simmons Plea Agreement, ECF No. 207 (reflecting T. M. Simmons’s guilty plea, though information regarding his ultimate sentence is unavailable); Memorandum Opinion (Feb. 27, 2006) at 1, ECF No. 426 (noting that Ronald Horns was sentenced to a 135-month term of imprisonment following a guilty plea); Probation Pet. at 1, ECF No. 436 (noting that William Bumbrey was sentenced to 60 months incarceration); see generally Docket (reflecting that the remaining four co-defendants— Roland Fluellyn, Robert Haygood, Raymond Mayrant, and Ronald Sowells—did not go to trial); Fields PSR at 8–9 (noting that all of Fields’ and Johnson’s co-defendants either had been sentenced or were pending sentencing as of September 8, 1999). 3 Specifically, the superseding indictment charged, first, both Fields and Johnson with conspiracy to distribute and possess with intent to distribute controlled substances, in violation of

, and conspiracy to participate in a Racketeer Influenced Corrupt Organization, in violation of

(d) (Counts 1 and 3), and Fields with engagement in a continuing criminal enterprise, in violation of 18 U.S.C. 848(a) and (b) (Count 2), based on the men’s extensive involvement with the L Street Crew throughout the 1990s. A series of charges related to the targeted attacks Fields and his gang carried out against members of the K Street Crew followed. Fields was charged with two counts of assault with a dangerous weapon, in violation of

, 105, for his attacks on two individuals not involving a firearm (Counts 4–5); one count of kidnapping while armed, in violation of

, 3202, for his role in kidnapping and threatening to murder a K Street Crew member at gun- and knife-point in September 1996 (Count 19); and nine counts of assault with intent to kill while armed, in violation of

, 105, 3202, for other attacks involving firearms (Counts 6, 8–9, 20, 22, 24, 26, 28, 30). The nine latter attacks—the shooting of Hill on July 10, 1996, of Chandler on October 24, 1996 and January 13, 1997, of Speight on January 13, 1997, of Carson on January 30, 1997, and of several other individuals throughout 1996 and 1997—gave rise to nine additional charges for Violent Crime in Aid of Racketeering Activity (VICAR), in violation of

(a)(3), (a)(5) (Counts 7, 10–11, 21, 23, 25, 27, 29, 31). Both Fields and Johnson were charged with assault with intent to kill while armed, in violation of

, 105, 3202, and an accompanying VICAR offense, in violation of

(a)(3), (a)(5), for their attempted murder of an unknown individual in January 1997 (Counts 32–33). Both defendants were charged for their role in the kidnapping, gang-rape, and attempted murder of K.D. on August 26, 1996, including: kidnapping, in violation of

(a)(1), (a)(2) (Count 12), five counts of first degree sexual assault while armed, in violation of

, 105, 3202 (Counts 13–17), and a VICAR charge based on the assault with intent to murder of K.D., in violation of

(a)(3), (a)(5) (Count 18).

7 In 1999, following a three-month trial, a jury found Fields guilty of forty counts

(acquitting him on eighteen counts while deadlocking on five others; the final count was

dismissed on the government’s motion) and found Johnson guilty of sixteen counts (acquitting

him on four). See Verdict Form, ECF No. 455. They were each sentenced to terms greater than

life. See Fields Judgment, ECF No. 246; Johnson Judgement, ECF No. 247.

Both Johnson and Fields timely appealed their convictions and sentences, challenging

venue, sufficiency of the evidence, admission of evidence, joinder of defendants, failure to sever

certain counts, their sentence enhancements, and the calculation of their sentences. See Fields I,

. The D.C. Circuit rejected most challenges as “meritless,” but vacated the

sentences and remanded for resentencing with the instructions that (1) the sentences on the drug

charges must be based only on the quantities of the relevant drugs that had been proven beyond a

reasonable doubt at trial and (2) Application Note 5 to § 2A4.1 of the U.S. Sentencing

Guidelines, which had been relied upon to enhance the sentences on the charges related to the

kidnapping and attempted murder of K.D., was at odds with the controlling Guideline itself and

should not be used. Id. at 395–399.

The foregoing incidents of violence served as predicates for two sets of firearm offenses. First, both men were charged with a series of violations of

(c), for the use of a firearm in connection with many of the federal offenses. Johnson was charged in three counts, for his use of a firearm in connection with K.D.’s kidnapping, K.D.’s VICAR assault with intent to murder, and the VICAR assault with intent to kill of the unknown individual in January of 1997 (Counts 37, 38, and 45). Fields was charged in those same three counts, in addition to nine others: the VICAR assaults with intent to kill of Hill, Chandler, Speight, Carson (Counts 34, 40, 43, and 44), and the remaining VICAR charges (35–36, 39, 41–42). Both defendants were charged under D.C. law,

(b), 105, for possession of a firearm during the commission of many of the foregoing D.C. Code offenses, including: six counts, predicated on their five counts of first degree sexual assault while armed of K.D. and on their count for assault with intent to kill while armed of the unknown individual in January 1997 (Counts 49–53, 61). Fields was additionally charged with ten further counts, predicated on his nine D.C. assault to kill while armed offenses and on his D.C. kidnapping while armed offense (Counts 46–48, 54–60). Finally, Fields was charged with three counts of money laundering, in violation of

(Counts 62–64).

8 Following these instructions, the district court on remand sentenced Fields to a minimum

imprisonment of life, plus 105 years, and Johnson to 49 years and 4 months. Johnson Judgment,

ECF No 368; Fields Judgment, ECF No. 369. Defendants once again timely appealed, and the

D.C. Circuit affirmed the new sentences. United States v. Fields (Fields III),

(D.C. Cir. 2003). Defendants’ subsequent petitions for rehearing and rehearing en banc were

denied, see D.C. Cir. Order, United States v. Fields, No. 01-3141 (D.C. Cir. June 5, 2003); D.C.

Cir. Order En Banc, United States v. Fields, No. 01-3141 (D.C. Cir. June 5, 2003), as was their

petition for a writ of certiorari, see Fields v. United States,

(2003).

C. Fields’s Other Collateral Challenges

Until his instant motion, Johnson has not pursued collateral challenges to his convictions.

By contrast, the instant motions represent only two out of Fields’s many attempts to bring

collateral challenges to his convictions on a variety of bases in the decades since his

imprisonment began. To contextualize the challenges currently pending, the procedural history

of Fields’s other attempts is briefly summarized.

In October 2004, Fields filed his first motion, under

, requesting relief

on the grounds that “(1) his sentence [was] unconstitutional because it exceed[ed] the statutory

maximum for the offense of conviction; (2) newly discovered evidence entitle[d] him to a new

trial; and (3) the prosecutor suborn[ed] perjury and failed to disclose exculpatory evidence.”

United States v. Fields (Fields IV), No. 98-cr-0071 (TFH),

, at *1 (D.D.C. Jan.

18, 2006); Fields’s First Mot. to Vacate (Oct. 15, 2004), ECF No. 398. That motion was denied,

upon findings that “[t]here is no merit to [Field’s] Brady claim[;]” “[t]he short portion of

testimony provided by defendant is not exculpatory[;]” and “the disclosure of [the alleged

exculpatory] information . . . was not material and would not have affected the outcome of the

9 trial.” Fields IV,

, at *3. Fields appealed, Not. of Appeal, ECF No. 424, but

the D.C. Circuit held that appeal in abeyance until the district court determined whether a

certificate of appealability should issue in the first instance, D.C. Cir. Order (March 2, 2006),

ECF No. 428. The district court subsequently denied that certificate, Order (March 8, 2006),

ECF No. 429, and the D.C. Circuit then dismissed the appeal, see D.C. Cir. Order, In re Fields,

No. 06-3039 (D.C. Cir. Sept. 11, 2007).

Around the same time, Fields mounted a renewed attempt to challenge his sentence by

alleging newly discovered evidence, this time in the form of a pro se motion for relief under Fed.

R. Civ. P. 60(b)(2). Fields’s Mot. for Relief (Docketed Aug. 3, 2007), ECF No. 435. This

motion was “more appropriately characterized as a Motion For A New Trial Based On Newly

Discovered Evidence under Federal Rule of Criminal Procedure 33,” as Fields was a criminal

defendant, and the motion was therefore denied as untimely. Order (Aug. 3, 2007), ECF No.

434.

Five years later, Fields pursued a second § 2255 motion by seeking the D.C. Circuit’s

authorization to file such a second or successive motion, again based on a claim of newly

discovered evidence. See Fields’s Petition, In re Fields, No. 12-3041 (D.C. Cir. June 15, 2012).

The D.C. Circuit denied that petition, reasoning that all the documents upon which Fields

attempted to rely were over a year old and Fields had not demonstrated the purported evidence

contained therein could only have been discovered through due diligence at that belated date.

See D.C. Cir. Order, In re Fields, No. 12-3041 (D.C. Cir. Sept. 14, 2012).

In February 2019, Fields filed a second pro se motion for relief, under Federal Rule of

Civil Procedure 60(b)(2), this time challenging the outcome of his first § 2255 proceedings in

Fields IV. Fields’s Mot. for Relief (Feb. 25, 2019), ECF No. 465. Finding that the motion was

10 “in substance” a successive motion under

, the district court determined that

jurisdiction was lacking absent prior approval from the D.C. Circuit, and therefore transferred the

case to the Circuit, pursuant to

. United States v. Fields (Fields V),

(D.D.C. 2019). Fields apparently did not pursue these claims further before the

Circuit.

A year later, however, Fields returned to the D.C. Circuit with another petition to file a

second or successive § 2255 motion (his third such request; his second led to the instant motions

and is therefore covered, infra, in Part I.D.). He based that petition, again, on claims of newly

discovered evidence, plus an additional claim of ineffective assistance of trial counsel. See

Fields’s Petition, In re Fields, No. 20-3052 (D.C. Cir. Aug. 19, 2020). The D.C. Circuit once

again rejected his petition, noting that none of the evidence had been demonstrated to be only

recently discoverable through due diligence—indeed, most of the affidavits presented were

among those previously rejected in his first petition—and that Fields fell short of establishing a

reasonable possibility that his counsel’s alleged errors altered the result of his proceeding. See

D.C. Cir. Order at 1, In re Fields, No. 20-3052 (D.C. Cir. Feb. 5, 2021). Since then, Fields has

pursued no further collateral challenges in this Circuit. 4

D. The Instant Motions

The three pending motions trace their origins to 2015, when the Supreme Court held in

Johnson v. United States that the “residual clause” in the definition of a “violent felony,” as used

in the Armed Career Criminal Act of 1984 (“ACCA”),

(e)(2)(B), is

unconstitutionally vague. 576 U.S. at 593–94, 597. Nearly a year later, in Welch v. United

4 The government reports that Fields filed at least one additional pro se petition in another court; specifically, in 2012, he sought relief pursuant to

in the Middle District of Pennsylvania, which court dismissed his petition for lack of jurisdiction. See Gov’t’s Fields Opp’n at 18.

11 States, the Supreme Court concluded that Johnson had announced a substantive rule that applied

retroactively on collateral review.

(2016). That ruling provided potential new

grounds for relief for Fields and Johnson, because their § 924(c) convictions involved the same

definition of “violent felony” at issue in Johnson in the context of ACCA. Recognizing that

many defendants who had been sentenced in this Court were in a similar position and that “time

[wa]s of the essence” for them to file Johnson-based claims before the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”)’s one-year limitations period for collateral

challenges expired on June 26, 2016, the undersigned, in her capacity as Chief Judge of the

Court, issued a Standing Order, on June 2, 2016, to govern all defendants seeking possible

sentence reductions under the newly announced rules. See Standing Order of the U.S. District

Court for the District of Columbia (June 2, 2016) (“June 2, 2016 SO”) at 1. That Standing Order

authorized the Office of the Federal Public Defender, which was appointed to represent

qualifying defendants, to file an “abridged motion” seeking relief under Johnson by June 26,

2016, and then to supplement that motion “fully briefing the issues presented” by October 26,

2016. Id. at 1–2. The latter deadline was subsequently modified several times in anticipation of

further relevant decisions from the Supreme Court, ultimately deferring the supplemental

briefing until after the Supreme Court issued its ruling in United States v. Davis several years

later. See Standing Order of the U.S. District Court for the District of Columbia (Sept. 9, 2016);

Standing Order of the U.S. District Court for the District of Columbia (Oct. 14, 2016); Standing

Order of the U.S. District Court for the District of Columbia (March 22, 2017); Standing Order

of the U.S. District Court for the District of Columbia (May 2, 2018); Standing Order of the U.S.

District Court for the District of Columbia (Aug. 8, 2018); Standing Order of the U.S. District

Court for the District of Columbia (March 19, 2019) at 3.

12 Johnson, in accordance with these instructions, filed a pro se motion under

, challenging his § 924(c) convictions in Counts 37 and 38. See Johnson Mot. Vacate at 5,

12, ECF No. 447. He then obtained the assistance of the Office of the Federal Public Defender,

which timely filed Johnson’s abridged motion under § 2255 on June 20, 2016, and Johnson’s

supplementary motion on January 27, 2020. See Johnson Abridged Mot. Vacate, ECF No. 448;

Johnson Scheduling Order (Sept. 17, 2019); Johnson Supp. Mot.

Fields, likewise, sought to file a motion, but had to clear an initial procedural hurdle due

to his prior pursuit of § 2255 relief. Accordingly, he filed a petition pursuant to

in the D.C. Circuit, seeking authorization to file his second or successive § 2255 motion

in the district court (his second such petition, out of three total, see supra Part I.C). See Mot. for

Auth. to File a Second or Successive Motion, ECF No. 457; Emergency Supp. Mot. for Auth. to

File a Second or Successive Motion, ECF No. 457-2. That petition requested permission to file

not only a § 2255 motion based on Johnson, but also a § 2255 motion based on Graham and

Miller, which dealt with the imposition of life sentences on minor defendants. See id. While that

petition was pending, Fields filed, on June 25, 2016, an abridged motion in district court in

accordance with the June 2, 2016 Standing Order. Fields Abridged Second Mot. Vacate, ECF

No. 449. The D.C. Circuit authorized Fields’s filing of his second and successive motions for

both sets of claims, simultaneously noting the timeliness of his claims under Johnson and

expressing no opinion on the timeliness of his claims under Graham and Miller. D.C. Cir. Order

(Sept. 7, 2016), ECF No. 456. That hurdle cleared, at least as to the Johnson-based motion,

Fields’s motions were timely supplemented pursuant to the Court’s Standing Orders and

Scheduling Order on February 3, 2020. See Fields Scheduling Order (Sept. 17, 2019); Fields

Supp. Johnson/Davis Mot.; Fields Supp. Graham/Miller Mot.

13 The briefing deadlines on all three of these motions were repeatedly extended, in

response to numerous requests on both sides to modify the governing scheduling orders. See

Minute Order (March 24, 2020); Minute Order (April 1, 2020); Minute Order (May 7, 2020);

Minute Order (June 1, 2020); Minute Order (July 13, 2020); Minute Order (July 31, 2020);

Minute Order (Sept. 4, 2020); Minute Order (Nov. 2, 2020); Minute Order (Nov. 13, 2020);

Minute Order 1 (Dec. 18, 2020); Minute Order 2 (Dec. 18, 2020), Minute Order (Feb. 17, 2021).

The three instant motions finally became ripe for resolution nearly five years after they had

originally been filed. See Gov’t’s Opp’n to Fields’s Mots. to Vacate (“Gov’t’s Fields Opp’n”),

EFC No. 499; Gov’t’s Opp’n to Johnson’s Mot. to Vacate (“Gov’t’s Johnson Opp’n”), ECF No.

500; Johnson Reply Supp. Mot. to Vacate (“Johnson Rep.”), ECF No. 509; Fields Reply Supp.

Mot. to Vacate Based on Johnson and Davis (“Fields Johnson/Davis Rep.”), ECF No. 511;

Fields Reply Supp. Mot. to Vacate Based on Graham and Miller (“Fields Graham/Miller Rep.”),

ECF No. 512. Both defendants subsequently supplemented their motions with memoranda

addressing the perceived impact of the Supreme Court’s intervening decisions in Borden v.

United States,

(2021), see Johnson Supp. Mem. on VICAR Predicates and

Borden (“Johnson Supp. Borden Mem.”), ECF No. 525; Fields Supp. Mem. on VICAR

Predicates and Borden (“Fields Supp. Borden Mem.”), ECF No. 524, and United States v.

Taylor,

(2022), see Johnson Not. Supp. Auth. (“Johnson Supp. Taylor Not.”),

ECF No. 537; Fields Not. Supp. Auth. (“Fields Supp. Taylor Not.”), ECF No. 536.

II. LEGAL STANDARD

A person in federal custody may petition the court in which he was sentenced for

resentencing “upon the ground that the sentence was imposed in violation of the Constitution or

laws of the United States, or that the court was without jurisdiction to impose such sentence, or

14 that the sentence was in excess of the maximum authorized by law, or is otherwise subject to

collateral attack.”

(a). A court shall correct a sentence if “the sentence imposed

was not authorized by law or otherwise open to collateral attack, or . . . there has been such a

denial or infringement of the constitutional rights of the prisoner as to render the judgment

vulnerable to collateral attack.”

§ 2255(b). The petitioner bringing a motion under § 2255

must establish, by a preponderance of the evidence, the denial of a constitutional right. See

United States v. Simpson,

(D.C. Cir. 1973).

Motions under § 2255 are subject to “the strict time limits that Congress has placed on

prisoners seeking collateral relief.” United States v. Hicks,

(D.C. Cir. 2002);

see also

(f). Section 2255 provides several possible one-year periods during

which a petitioner may file a motion, including within one year of “the date on which the right

asserted was initially recognized by the Supreme Court.”

(f)(3). A motion that

is timely under only § 2255(f)(3) must also show that the asserted right “has been newly

recognized by the Supreme Court and made retroactively applicable to cases on collateral

review.” Id. These are independent conditions limiting the availability of relief. Dodd v. United

States,

, 357–59 (2005). Before a petitioner may file a second or successive § 2255

motion, the petitioner must make at least a prima facie showing that the motion contains “a new

rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable.”

(h)(2); see also In re Williams,

,

69–70 (D.C. Cir. 2014).

III. DISCUSSION

The three pending motions, pursuant to § 2255, are, first, both Fields’s and Johnson’s

separate motions seeking vacatur of their § 924(c) convictions, in the wake of the Supreme

15 Court’s decisions in Johnson and Davis, and, second, Fields’s motion to vacate his two life

sentences imposed for offenses he committed as a 22-year-old that he claims must be

reconsidered in light of the Supreme Court’s Graham and Miller decisions regarding the

treatment of juvenile defendants. As to all three of these motions, defendants’ compliance with

the labyrinthine procedural requirements of AEDPA will be considered first, followed by a

discussion of the substantive issues, and, finally, an assessment of defendants’ arguments that

they are entitled to a full resentencing on all counts of conviction if they are successful in any

one of their challenges.

A. Johnson and Fields’s Challenges to Their § 924(c) Convictions Under Johnson and Davis

Defendants’ initial motions concern their convictions under

(c) for

carrying a firearm during (1) a kidnapping, in violation of

(Count 37 for both

Fields and Johnson); (2) an assault with intent to murder under Maryland law in aid of

racketeering, in violation of § 1959(a)(3) and (a)(5) (Count 38 for both Fields and Johnson); and

(3) four assaults with intent to kill under D.C. law in aid of racketeering, in violation of

§ 1959(a)(3) and (a)(5) (Fields’s Counts 34, 40, 43, and 44). They argue that under the Supreme

Court’s decision in Johnson v. United States,

(2015), as extended in United States

v. Davis,

(2019), these predicate convictions no longer qualify as crimes of

violence to support their § 924(c) convictions, requiring their vacatur.

While defendants have properly complied with AEDPA’s procedural requirements to

bring these challenges, only their § 924(c) convictions, on Count 37, predicated on the federal

kidnapping statute rests on an offense that no longer qualifies as a crime of violence. Their

respective convictions on Count 37 will therefore be vacated, but the remainder of their § 924(c)

convictions will stand.

16 1. Defendants’ Compliance with AEDPA’s Procedural Prerequisites

a) Timeliness and Procedural Default

As discussed supra in Part II, motions under § 2255 are subject to a “1-year period of

limitation.”

(f). The limitation period runs from the latest of several possible

dates, including, as relevant here, “the date on which the right asserted was initially recognized

by the Supreme Court, if that right has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review.”

§ 2255(f)(3). The timeliness of

Johnson’s and Fields’s § 2255 motions based on Johnson and Davis based on this deadline is not

contested. As the D.C. Circuit noted, upon considering Fields’s petition to file a second or

successive § 2255 motion, because that petition “was filed within one year of the Supreme

Court’s June 26, 2015 Johnson decision . . . the ‘abridged’ motion shall be deemed timely filed

in district court with respect to petitioner’s Johnson claims.” D.C. Cir. Order (Sept. 7, 2016) at

2, ECF No. 456; see also Fields Abridged Second Mot. Vacate (filed June 25, 2016). Johnson,

similarly, filed his § 2255 motion prior to June 25, 2016. See Johnson Mot. Vacate (filed June

15, 2016); Johnson Abridged Mot. Vacate (filed June 20, 2016). These two motions are

therefore timely.

The government focuses instead on a separate procedural hurdle, arguing that Johnson’s

and Fields’s § 924(c) claims predicated on their non-kidnapping convictions are procedurally

barred, because they did not assert these claims on direct appeal. 5 “The procedural default rule

generally precludes consideration of an argument made on collateral review that was not made

on direct appeal, unless the defendant shows cause and prejudice.” United States v. Hughes, 514

5 The government does not argue that their § 924(c) claims predicated on their kidnapping convictions are similarly procedurally defaulted, choosing instead to concede the merits of these claims. See Gov’t’s Fields Opp’n at 23; Gov’t’s Johnson Opp’n at 12–13.

, 17 (D.C. Cir. 2008). The government asserts that defendants can show neither cause

nor prejudice in this case. Gov’t’s Fields Opp’n at 24; Gov’t’s Johnson Opp’n at 14.

The law is well-established, however, that cause for default exists “where a constitutional

claim is so novel that its legal basis is not reasonably available to counsel” on direct appeal.

Reed v. Ross,

(1984). A claim is novel under “[a]t least three circumstances:”

“(1) the Supreme Court explicitly overrules its own precedent; (2) the Supreme Court changes

course on a ‘longstanding and widespread practice to which [the Supreme Court had] not spoken,

but which a near-unanimous body of lower court authority had expressly approved’; and (3) the

Supreme Court disapproves of a once-sanctioned practice.” United States v. Hammond,

(D.D.C. 2018) (quoting Reed,

) (second alteration in original). As

to prejudice, a petitioner “must at least demonstrate that ‘there is a reasonable probability that,

but for [the errors], the result of the proceeding would have been different.’” United States v.

Pettigrew,

(D.C. Cir. 2003) (quoting United States v. Dale,

,

1056 n.3 (D.C. Cir. 1998)) (emphasis and alterations in original). For the purposes of conducting

the prejudice analysis, the existence of an error must be assumed.

.

Both cause and prejudice are present here. Despite the government’s conclusory

assertion that “defendant[s] cannot show cause based on Johnson and its progeny,” Gov’t’s

Fields Opp’n at 24; Gov’t’s Johnson Opp’n at 14, courts in this Circuit have repeatedly

recognized the novelty of claims based on Johnson (therefore establishing cause), explaining that

“[t]he constitutional right vindicated by the Johnson line of cases, culminating in Davis, was

unforeseeable,” United States v. Smith,

, 13–14 (D.D.C. 2022), and “no one—

the government, the judge, or the appellant—could reasonably have anticipated Johnson,” United

States v. Redrick,

(D.C. Cir. 2016). This is unsurprising, for Johnson

18 explicitly overruled two prior Supreme Court holdings, putting it squarely in Reed’s first

example of novelty. See Johnson,

(“Our contrary holdings in James [v. United

States,

(2007)] and Sykes [v. United States,

(2011)] are overruled.”).

Prejudice is likewise straightforwardly established. Assuming that defendants are correct

that several of the predicate offenses for their § 924(c) firearm convictions no longer qualify as

crimes of violence, their sentences should be substantially shorter. The government effectively

concedes this point in agreeing that both defendants’ Count 37 § 924(c) convictions predicated

on kidnapping must be vacated and their sentences shortened accordingly. See infra, Part

III.A.2.b. “The possibility of a sentence reduction . . . establishes prejudice.” United States v.

Brown,

(D.D.C. 2017) (alteration and internal quotation omitted).

Nonetheless, the government argues that because defendants’ remaining § 924(c) claims have

“no merit,” defendants cannot show prejudice. Gov’t’s Fields Opp’n at 24; Gov’t’s Johnson

Opp’n at 14. That position erroneously conflates the pertinent inquiries and puts the proverbial

cart before the horse, by leaping to assess the merits of defendants’ claims before determining

whether they would be prejudiced by their claimed error. Instead, the prejudice analysis must be

performed assuming the existence of an error. See Hammond,

(citing

Pettigrew,

). By conceding that defendants have earned a sentence reduction as

to at least one of their Johnson-based claims, the government has also effectively conceded the

existence of prejudice as to all their similar claims: if defendants are correct that Johnson

mandates the vacatur of several of their § 924(c) convictions, their sentences are too long.

Accordingly, Judges on this Court, including the undersigned, universally have rejected

the government’s repeated effort to foreclose through procedural default § 2255 motions seeking

the benefit of Johnson and Davis. See, e.g., Smith, 605 F. Supp. 3d at 14 (Howell, C. J.)

19 (rejecting procedural default argument for post-Johnson § 2255 motion); United States v.

Sumner,

, 135 (D.D.C. 2022) (Kollar-Kottelly, J.) (same); Sorto v. United

States, No. 08-cr-167-4 (RJL),

, at *2 (D.D.C. Feb. 24, 2022) (Leon, J.) (same);

Hammond,

(Howell, C. J.) (same); United States v. Carter,

, 310 (D.D.C. 2019) (Huvelle, J.) (same); United States v. West,

, 229 n.4

(D.D.C. 2018) (Leon, J.) (same); United States v. Taylor,

, 135–36 (D.D.C.

2017) (Kollar-Kotelly, J.) (same); United States v. Wilson,

(D.D.C.

2017) (Huvelle, J.) (same); Brown, 249 F. Supp. 3d at 292–93 (Sullivan, J.) (same); United

States v. Booker,

, 170–71 (D.D.C. 2017) (Friedman, J.) (same). Nothing

about this case justifies different treatment.

b) Limits on Successive Petitions Under

(h)(2)

Fields’s § 2255 motion faces an additional procedural hurdle not applicable to Johnson’s

motion. The fact that Fields’s motion is a second or successive § 2255 motion means that the

motion must be reviewed and “certified . . . by a panel of the appropriate court of appeals” before

the district court may consider it.

(h)(2); see also Smith, 605 F. Supp. 3d at 14–

15. If a three-judge panel of the court of appeals “determines that the application makes a prima

facie showing that the application satisfies the requirements of this subsection,”

(b)(3)(B)–(C), including that the claim relies on a “new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,”

§ 2255(h)(2), the panel may authorize the filing of the motion in the district court, id.

§ 2244(b)(3)(A). Upon receipt of a second or successive application certified by the court of

appeals, however, the district court must “dismiss any claim presented . . . unless the applicant

shows that the claim satisfies the requirements of this section.” Id. § 2244(b)(4). Thus, before

20 the court of appeals, an applicant need only make a “prima facie showing that [the application]

contains a previously unavailable new rule of constitutional law made retroactive on collateral

review by the Supreme Court,” Williams, 759 F.3d at 69–70, but “to survive dismissal in district

court, the applicant must actually show that the claim satisfies the standard,” Tyler v. Cain,

, 661 n.3 (2001) (internal quotation omitted).

When certifying Fields’s instant § 2255 motion, see D.C. Cir. Order (Sept. 7, 2016), the

D.C. Circuit did so on the basis that he had “made a prima facie showing that his claims relie[d]

on a new, previously unavailable rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court,” but “expresse[d] no opinion as to the merits of

petitioner’s claims.” Id. at 1–2 (citing Johnson,

, Welch,

, and

Williams,

). As explained further below, with regard to his § 924(c) conviction

predicated on kidnapping in Count 37, defendant certainly has “show[n] that the [Johnson and

Davis-based] claim satisfies the requirements” of §§ 2244 and 2255,

(b)(4),

given his convincing argument and the government’s concession that the federal kidnapping

offense does not fit the only definition of “crime of violence” under § 924(c) remaining after

Davis. With regard to his other § 924(c) convictions, defendant has not “show[n]” conclusively

that the predicate offenses fail to qualify as crimes of violence under the elements clause of

§ 924(c), and yet, given “the unsettled state of the law on the showing required by post-

Johnson . . . habeas petitioners,” West,

, the motion should not be disposed

of on procedural grounds. Where, as here, the requisite procedural showing merges so closely

with the merits, disposition on the merits is the preferable course. See United States v. Wilson,

No. 96-cr-319-01 (CKK),

, at *10 (D.D.C. Oct. 7, 2019) (although

“procedural default is generally a preliminary issue to be addressed before a federal court’s

21 consideration of the merits of a claim,” prejudice analysis “essentially requires a merits analysis”

such that “‘when relief is due to be denied even if claims are not procedurally barred, a federal

court can skip over the procedural bar issues’ [to] . . . address the merits” of a defendant’s claims

(quoting Loggins v. Thomas,

(11th Cir. 2011) (alterations omitted))).

***

Thus, both defendants’ claims as to their § 924(c) convictions based on Johnson and

Davis will be addressed on the merits.

2. Merits

To succeed on the merits of the claims mounted in their Johnson and Davis-based § 2255

motions, defendants must show that the underlying prior convictions subjecting defendants to

enhanced sentences do not qualify as crimes of violence under either the elements clause or

enumerated-felonies clause of § 924(c). While they make this requisite showing as to their

§ 924(c) convictions predicated on kidnapping, they cannot do so for their remaining § 924(c)

convictions. Their remaining § 924(c) convictions are predicated on the “violent crime in aid of

racketeering” (“VICAR”) statute, which prohibits the commission of certain violent crimes either

(1) in exchange for “anything of pecuniary value from an enterprise engaged in racketeering

activity,” or (2) “for the purpose of gaining entrance to or maintaining or increasing position in”

such an enterprise.

(a). The underlying VICAR “violent crimes” are, here, the

assault with intent to murder under Maryland law (for which the victim was K.D.) and assaults

with intent to kill under D.C. law (for which the victims were Hill, Chandler, Speight, and

Carson). These offenses remain “crimes of violence” under the elements clause of § 924(c), and

thus all the challenged § 924(c) convictions, with the exception of Count 37, must stand.

22 a) The Supreme Court’s Decisions in Johnson and Davis

In Johnson, the Supreme Court considered the constitutionality of an ACCA provision

that enhanced the sentence imposed on a defendant convicted of being a felon in possession of a

firearm if he had “three or more previous convictions for a ‘violent felony.’”

;

see also

(e). The statute offers two alternate definitions of “violent felony.”

First, under the “elements clause,” a violent felony includes any crime punishable by more than

one year’s imprisonment that “has as an element the use, attempted use, or threatened use of

physical force against the person of another.”

(e)(2)(B)(i). Next, under the

“residual clause,” a violent felony also includes a crime punishable by more than one year’s

imprisonment 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.”

§ 924(e)(2)(B)(ii).

In analyzing whether the residual clause violated the Fifth Amendment’s Due Process

Clause and the “well-recognized” prohibition against “vagueness in criminal statutes,” Johnson,

(citing Connally v. General Constr. Co.,

(1926)), the Supreme

Court concluded that the statute’s reference to crimes “otherwise involv[ing] conduct that

presents a serious potential risk of physical injury to another” demanded a categorial approach to

interpretation, whereby a court must “picture the kind of conduct that the crime involves in ‘the

ordinary case’ and . . . . judge whether that abstraction presents a serious potential risk of

physical injury,”

at 596 (citing James,

). Set against this understanding, the

Court observed that the residual clause of § 924(e) left “grave uncertainty about how to estimate

the risk posed by a crime” by “t[ying] the judicial assessment of risk to a judicially imagined

‘ordinary case’ of a crime, not to real-world facts or statutory elements,” id. at 597, and created

23 “uncertainty about how much risk it takes for a crime to qualify as a violent felony,” id. at 598.

The Court found that “[b]y combining indeterminacy about how to measure the risk posed by a

crime with indeterminacy about how much risk it takes for the crime to qualify as a violent

felony,” the residual clause of § 924(e) produced “more unpredictability and arbitrariness than

the Due Process Clause tolerates,” and declared this definitional clause unconstitutional. Id.

The next year, in 2016, the Court held that Johnson had been a substantive decision with

retroactive effect in cases on collateral review. Welch,

. Then, in 2018, the Court

extended the holding in Johnson to strike down, on the same grounds, a similarly worded

provision in the definition of “crime of violence” codified in

(b). See Sessions v.

Dimaya,

(2018).

Finally, in 2019, the Court considered a challenge for unconstitutional vagueness to a

different provision of

, which enhances the prison sentence imposed on a

defendant who, in connection with a “crime of violence” or drug trafficking offense, uses a

firearm. Davis, 139 S. Ct. at 2323–24; see

(c)(1). Like the portion of § 924 at

issue in Johnson, § 924(c) offers two alternative definitions for “crime of violence”: under the

elements clause, a crime of violence is defined as a felony having “as an element the use,

attempted use, or threatened use of physical force against the person or property of another,”

(c)(3)(A), and under the residual clause, such a crime is defined as a 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,”

§ 924(c)(3)(B). Noting that the

residual clause in § 924(c)(3) bore “more than a passing resemblance” to the ACCA residual

clause at issue in Johnson and the residual clause of

(b) at issue in Dimaya, Davis,

139 S. Ct. at 2325–26, the Court held that the residual clause in § 924(c)(3) “provide[d] no

24 reliable way to determine which offenses qualify as crimes of violence” and therefore was also

“unconstitutionally vague,” id. at 2324. Recognizing that the residual clause of § 924(c) had

“[f]or years” been understood “to require exactly the same categorial approach that [the] Court

found problematic in the residual clauses of the ACCA and § 16,” the Court declined to read into

§ 924(c)(3)(B) a different interpretation, and instead struck this clause as unconstitutional, since

“the imposition of criminal punishment can’t be made to depend on a judge’s estimation of the

degree of risk posed by a crime's imagined ‘ordinary case,’” id. at 2326–27.

The effect of the Supreme Court’s decisions in the Johnson line of cases is that, to

receive an enhanced consecutive penalty of five to thirty years’ imprisonment for use of a

firearm during a crime of violence, under

(c)(1), a defendant must have been

convicted of an offense qualifying as a crime of violence under the elements clause of

§ 924(c)(3)(A)—i.e., of a felony offense “that has as an element the use, attempted use, or

threatened use of physical violence against the person or property of another.” Predicate

offenses that qualify as “crimes of violence” only under the residual clause of § 924(c)(3)(B), no

longer suffice to support the sentencing enhancement provided in that statute. 6

b) Fields’s & Johnson’s Count 37: Convictions Under § 924(c) for Use of a Firearm During Kidnapping Under

Both defendants were convicted, in their respective Counts 37, of violating § 924(c) for

“[u]se of a firearm during and in relation to a crime of violence . . . on or about August 26,

1996,” namely the “armed kidnap[p]ing of [K.D.],” for which they were convicted in their

respective Counts 12, and for which Johnson was sentenced to 5 years, and

, to be

6 Of course, per the terms of the statute, an individual may be convicted under

(c) for use of a firearm “in relation to any crime of violence or drug trafficking crime.”

§ 924(c)(1)(A) (emphasis added). Drug trafficking convictions thus continue to qualify as predicate offenses under § 924(c), even after Johnson and Davis, but neither party argues that prong of the statute applies to the convictions at issue here.

25 served consecutively. Verdict Form at 12, 16; Johnson Judgment at 2; Fields Judgment at 2.

The parties agree that both defendants’ Count 37 convictions must be vacated because

defendants’ felony kidnapping convictions only qualify as a “crime of violence” under

§ 924(c)(3)’s residual clause, which was invalidated by the Supreme Court in Davis. Fields

Supp. Johnson/Davis Mot. at 8–12; Johnson Supp. Mot. at 7–10; Gov’t’s Fields Opp’n at 27;

Gov’t’s Johnson Opp’n at 16. The felony kidnapping conviction does not qualify as a “crime of

violence” under the elements clause of § 924(c)(3) because, examining the statute using the

categorial approach, kidnapping “may be accomplished through non-physical means” and thus

does not have as an element the use or threatened use of violent physical force. Fields Supp.

Johnson/Davis Mot. at 10; Johnson Supp. Mot. at 8. Under

(a), a defendant

who “unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away . . . any

person” may be found guilty of felony kidnapping if they “hold[]” that person “for ransom or

reward or otherwise.” As the government explains, “[t]wo of those means, inveigling and

decoying, do not require the use or threatened use of physical force,” and thus do not satisfy the

elements clause of Section 924(c)(3)(A). Gov’t’s Fields Opp’n at 27; Gov’t’s Johnson Opp’n at

16. Moreover, “holding” a person “does not necessarily require the use or threatened use of

physical force.”

(citing United States v. Walker,

(4th Cir. 2019)); Gov’t’s

Fields Opp’n at 27 (citing United States v. Walker,

(4th Cir. 2019)). Thus, “the

minimum criminal conduct required” for a kidnapping conviction under

does

not “necessarily involve[] violence.” Fields Supp. Johnson/Davis Mot. at 9 (citing Montcrieffe v.

Holder,

, 190–91 (2013)); Johnson Supp. Mot. at 7–8 (citing Montcrieffe, 569 U.S.

at 190–91). See also United States v. Lassiter,

(D.C. Cir. 2021) (finding that

26 “[w]ithout the residual clause” of § 924(c), “kidnapping no longer met the definition of a ‘crime

of violence’”).

Accordingly, despite the egregious violence meted out to K.D. as part of her particular

kidnapping, the parties are correct that felony kidnapping does not qualify as a crime of violence

under the elements clause of § 924(c) and that defendants’ convictions on their respective Counts

37 must be vacated.

c) Fields’s Counts 34, 38, 40, 43, and 44 & Johnson’s Count 38: Remaining § 924(c) Convictions for VICAR Assault with Intent to Murder Under Maryland and VICAR Assault with Intent to Kill Under D.C. Law, In Violation of

(a)(3), (a)(5)

The parties disagree as to whether Johnson’s one remaining and Fields’s five remaining

§ 924(c) convictions may stand after Johnson and Davis. In these counts, defendants were

convicted under § 924(c) with the “[u]se of a firearm during and in relation to a crime of

violence or drug trafficking crime,” where those predicate crimes were the following VICAR

offenses:

Fields Count 34: The assault with intent to kill while armed of Vincent Hill in violation of D.C. Code 22

, 3202, 7, in aid of racketeering activity, in violation of

(a)(3), (a)(5) (convicted in Count 7).

Fields and Johnson Count 38: The assault with intent to murder of K.D. in violation of Maryland common law, in aid of racketeering activity, in violation of

(a)(3), (a)(5) (convicted in Count 18).

Fields Count 40: The assault with intent to kill while armed of Anthony Chandler in violation of D.C. Code 22

, 3202, 8 in aid of racketeering activity, in violation of

(a)(3), (a)(5) (convicted in Count 23).

7 The D.C. Code has since been amended; the relevant provisions can now be found at

, 4502. 8

27 Fields Count 43: The assault with intent to kill while armed of Melanie Speight in violation of D.C. Code 22

, 3202, 9, in aid of racketeering activity, in violation of

(a)(3), (a)(5) (convicted in Count 29).

Fields Count 44: The assault with intent to kill Samuel Carson while armed in violation of D.C. Code 22

, 3202, 10 in aid of racketeering activity, in violation of

(a)(3), (a)(5) (convicted in Count 31).

Verdict Form at 11–17, 24; Retyped Superseding Indictment at 31–32, 37, 40, 43–44, 46–48. 11

“Courts generally determine whether a federal VICAR count is a ‘crime of violence’ based on

whether the state law predicate to the VICAR conviction is a ‘crime of violence.’” United States

v. Mejia, -- F. Supp. 3d --, No. 10-cr-256-03 (RCL),

, at *6 (D.D.C. Feb. 23

2023) (citing United States v. Carson,

, 367–68 (D.C. Cir. 2006)); see also, e.g.,

9

10

11 The parties agreed that these were the underlying predicate offenses when defendants submitted their initial Johnson/Davis § 2255 motions. See Fields Supp. Johnson/Davis Mot. at 12, 17; Johnson Supp. Mot. at 11; Gov’t’s Fields Opp’n at 20–21 & n.17; Gov’t’s Johnson Opp’n at 11 & n.7. Over a year and a half later, upon receiving the Court’s permission to file a supplemental memorandum addressing the impact of the Supreme Court’s recent decision in Borden, defendants reversed course and attempted to argue for the first time (in a section separate from that addressing the legal import of Borden, and for which no authorization had been sought) that the predicate offenses were ambiguous, and that the jury could have found defendants guilty of using a firearm during either an assault with a deadly weapon, in violation of § 1959(a)(3) or an attempted murder in violation of § 1959(a)(5). See Fields Supp. Borden Mem. at 9–12; Johnson Supp. Borden Mem. at 9–12. As evinced by the parties’ total agreement on this point when the motions were adversarily briefed, the relevant documents do not in fact create such ambiguity. See In re Sealed Case,

(D.C. Cir. 2008) (explaining that “when the conviction results from a trial,” a court looks “to the statutory definition as well as the indictment or information and jury instruction” to determine which elements the jury necessarily would have “had to find” (internal quotation omitted)). Here, the jury instructions (which defendants reproduce in their supplement memoranda) for Count 38—to take a representative example—instruct that this § 924(c) charge “relates to . . . the attempt to murder and assault with a dangerous weapon of [K.D.] as a violent crime in aid of racketeering activity, as charged in count 18.” Johnson Supp. Borden Mem. at 10 (quoting Jury Instr. at 167). The instructions for Count 18, in turn, specify that the defendants were “charged with commit[ing] a violent crime in aid of racketeering activity, namely, assault with intent to kill while armed.” Id. at 11 (quoting Jury Instr. at 158). (The instructions for Fields’s other counts at issue are, in relevant part, identically worded, see Fields Supp. Borden Mem. (quoting and citing Jury Instr. at 156–58, 166, 168–69) These instructions are consistent with the superseding indictment, which specified that each of the underlying VICAR offenses consisted of the “attempt[] to murder and assault[] [of the victim] with a dangerous weapon,” in violation of D.C. statutes and Maryland common law. Retyped Superseding Indictment at 32, 37, 40, 43–45. Based on these instructions, all the predicate offenses required both an assault with a deadly weapon and that the assault was part of an attempted murder—implicating both § 1959(a)(3) and (a)(5), as was properly indicated in the indictment—and it would not have been possible, as defendants belatedly assert, for the jury to have found defendants guilty only of an attempted murder, absent a linked assault.

28 United States v. Cooper,

, 204–05 (D.D.C. 2022) (analyzing the Maryland

state law predicate to a VICAR conviction underlying a § 924(c) conviction). 12 Thus, the

question is whether a D.C. assault with intent to kill while armed (“AWIKWA”) and a Maryland

assault with intent to murder (“AWIM”) qualify as “crimes of violence” under the elements

clause, that is, whether they have “as an element the use, attempted use, or threatened use of

physical force against the person . . . of another,”

(c)(3)(A), as is necessary to

sustain defendants’ remaining § 924(c) convictions. Furthermore, for the qualifying “use of

force” element to be considered “against the person of another,” the predicate offense must

require a mens rea of greater than recklessness, for “[r]eckless conduct is not aimed in that

prescribed manner.” Borden v. United States,

(2021).

Maryland AWIM, which is the predicate VICAR offense underlying both Fields’s and

Johnson’s § 924(c) convictions in Count 38, clearly has such an element. This offense is defined

as “an assault upon the victim coupled with an intent to murder,” where that intent “is the

specific intent to bring about the death of the assault victim.” United States v. Battle,

(4th Cir. 2019) (quoting Hardy v. State,

(Md. 1984) and citing

Abernathy v. State,

(Md. 1996)). By specifically requiring the intent to kill, it

requires more than the “conscious[] disregard[ing of] a substantial and unjustifiable risk” of

12 The D.C. Circuit has not explicitly settled the question of whether the categorical approach should be applied “to the state-crime predicate underlying the VICAR conviction” or to “the VICAR conviction itself,” and other courts have followed both methodologies. See Sorto,

, at *3 n.7. The established consensus for Judges on this Court, however, is to opt for the former approach, on the basis that the jury “necessarily found that the defendant violated [the state-crime] predicate to return the VICAR conviction,”

which approach is consistent with “the practice implicitly followed by the D.C. Circuit and explicitly followed by a majority of the circuits to examine the issue,” Mejia,

, at *6 n.10 (citing Carson, 455 F.3d at 367–68). See, e.g., Moore v. United States, No. 16-3715 (RP),

, at *2 (2d Cir. Nov. 12, 2021); United States v. Mathis,

, 264–65 (4th Cir. 2019); United States v. Mejia-Quintanilla,

, 836 (9th Cir. 2021); United States v. Toki,

, 1280–81 (10th Cir. 2022); see also, e.g., United States v. Martin, 98-cr- 329 (RCL),

, at *25 (D.D.C. Oct. 27, 2021) (looking to the state-crime predicate); Cooper, 610 F. Supp. 3d at 204–05 (D.D.C. 2022) (same). Defendants present no persuasive reason to depart from this consensus here.

29 death or serious injury, which is the very meaning of recklessness, see Model Penal Code § 2.02

(Am. L. Inst. 2022), and thus Maryland AWIM remains a viable predicate post-Borden. The

combination of an assault with that specific intent also necessitates the use of force, as needed to

satisfy § 924(c)’s elements clause. As the Fourth Circuit persuasively reasoned in holding that

Maryland AWIM satisfies the elements clause of ACCA post-Johnson, “it is impossible to intend

to cause injury or death [during an assault] without physical force” of some kind, even if that

physical force brings about the harm indirectly (e.g., by poisoning the victim’s drink). Battle,

927 F.3d at 166–67. The D.C. Circuit’s decision in United States v. Haight,

(D.C.

Cir. 2018), all but compels the same conclusion here. Haight considered the Maryland first

degree assault statute as a possible ACCA predicate, which statute prohibits (1) intentionally

causing or attempting to cause serious physical injury to another, or (2) committing an assault

with a firearm.

at 1281 (citing Md. Code § 3-202(a)). The Circuit reasoned that “the

additional elements that convert Maryland second-degree assault into first-degree assault—the

use of a firearm or the intention to cause serious physical injury—require the defendant to use,

attempt to use, or threaten to use violent force against another person,” making it a viable ACCA

predicate. Id. 13 Given that the element of an intent to cause bodily injury was sufficient to

render Maryland first-degree assault a crime of violence under the elements clause, the element

of an intent to cause the victim’s death must likewise suffice to qualify Maryland AWIM. 14

13 Defendants attempt to explain away Haight’s relevance by incorrectly asserting that Maryland first-degree assault requires both the foregoing intent and “an assault with a firearm,” while Maryland AWIM is “material[ly] differen[t]” because it “does not require a firearm.” See Fields Johnson/Davis Reply at 6; Johnson Reply at 6. In fact, however, the Maryland first-degree assault statute is satisfied by either an assault committed with the intent to cause serious physical injury to another or an assault committed with a firearm, see Md. Code § 3-202(a)(1), (2), and thus the Circuit’s characterization of the required elements is correct. 14 Haight was later abrogated by Borden insofar as the former case held that a different predicate offense qualified as an ACCA predicate despite requiring a mens rea of only recklessness, see Haight,

, but Haight’s analysis of Maryland AWIM, which, as noted supra, is a specific intent crime, does not rest on this logic and remains persuasive.

30 Likewise, D.C. AWIKWA, which is the predicate VICAR offense underlying Fields’s

remaining § 924(c) convictions in Counts 34, 40, 43, and 44, satisfies the elements clause. The

elements of that offense are (1) an assault with (2) the specific intent to kill, where the assault

was committed (3) while armed with or having readily available a firearm or “other dangerous or

deadly weapon.” See D.C. Code. §§ 22-401, 4502(a); McCray v. United States,

(D.C. 2016) (citing Hagans v. United States,

, 42 n.131 (D.C. 2014)). “A specific

intent to kill exists when a person acts with the purpose or conscious intention of causing the

death of another,” Logan v. United States,

(D.C. 1984), and thus a mere

“conscious disregard of the risk of death or serious injury” does not rise to the level of a specific

intent to kill. Graure v. United States,

(D.C. 2011). Given that specific intent

requirement, D.C. AWIKWA, like Maryland AWIM, cannot be committed recklessly and

necessarily satisfies the strictures of Borden. See, e.g., United States v. Martin, 98-cr-329

(RCL),

, at *25 (D.D.C. Oct. 27, 2021) (reaching the same conclusion).

Furthermore, again like Maryland AWIM, committing an assault while specifically intending to

kill the victim without the use, attempted use, or threatened use of violent force, is impossible,

meaning that this offense remains a crime of violence under § 924(c)’s elements clause.

Fields’s and Johnson’s VICAR-based § 924(c) convictions, which are predicated on state

law offenses that both involve the “use, attempted use, or threatened use” of force against

another, see

(c)(3), therefore remain crimes of violence post-Johnson and Davis,

and will not be vacated.

B. Fields’s Challenge to His Life Sentences Under Graham and Miller

At the same time that he challenged, along with Johnson, his § 924(c) convictions in his

§ 2255 motion based on Johnson and Davis, Fields also submitted a separate supplemental

31 § 2255 motion, this one based on Graham v. Florida,

(2010) and Miller v. Alabama,

(2012), arguing that those decisions purportedly bar the two mandatory life

sentences he received for conduct he committed as a young man. See Fields Supp.

Graham/Miller Mot. The first life sentence was imposed as to his conviction on Count 3, for

RICO conspiracy, in violation of

(d), and the second such sentence was

imposed as to his conviction on Count 12, for kidnapping in violation of

(a)(1);

both were based on his orchestration of and participation in the armed kidnapping of K.D.

(which was captured in the RICO conspiracy conviction as RICO Act 21). See Fields Judgment

at 1–2; Retyped Superseding Indictment at 29; Fields Second Sentencing Tr. at 18:9–15, ECF

No. 366. Unlike his Johnson/Davis-based motion, however, this separate motion does not

comply with AEDPA’s procedural prerequisites. In particular, Fields’s Graham/Miller-based

motion was untimely filed more than a year after the purported recognition of the underlying

right, and thus this motion must be dismissed. Further, even if Fields had timely filed the

motion, Graham and Miller do not require the vacatur of the life sentences at issue, which Fields

received for offenses committed as a non-juvenile. Fields’s convictions and sentences on Counts

1 and 3 will therefore stand.

1. Fields’s § 2255 Motion Based on Graham and Miller Was Untimely Filed

Fields was obligated to file his § 2255 motion within one year from the date on which the

newly recognized right defendant seeks to vindicate became available.

(f)(3);

see supra at Part I.D. At the latest, then, Fields would have had to file his Graham/Miller motion

within one year of the Supreme Court’s decision in Miller v. Alabama,

(2012)—

32 i.e., in 2013—yet he did not seek leave from the D.C. Circuit to file this motion until 2016. See

Fields Abridged Second Mot. Vacate at 1 & n.1. 15

Fields argues that, despite this delay, his claim should not be time-barred because he is

entitled to equitable tolling. Fields Supp. Graham/Miller Mot. at 18–21. Before AEDPA’s

limitations period will be equitably tolled, a petitioner must show “‘(1) that he has been pursuing

his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and

prevented timely filing.” Holland v. Florida,

, 649 (2010) (quoting Pace v.

DiGugliemo,

(2005)); Head v. Wilson,

(D.C. Cir. 2015).

He explains that both requirements are met in this case, because he had attempted to direct his

attorney timely to file a § 2255 petition after Graham was decided, but the attorney never did

despite Fields’s numerous attempts to contact him, culminating in Fields initiating disciplinary

hearings against the attorney that did not resolve until March 2016. See Fields Supp.

Graham/Miller Mot. at 19.

Equitable tolling must be employed “only sparingly.” United States v. Cicero,

(D.C. Cir. 2012) (citing Irwin v. Dep’t of Veterans Affairs,

(1990)).

“The threshold showing ‘necessary to trigger equitable tolling is very high,’ . . . because courts

should not ‘create a loophole . . . contrary to the legislative intent [of AEDPA] of insuring a

greater degree of finality.’” United States v. Martin, No. 98-cr-329-RCL,

, at

*9 (D.D.C. May 23, 2022) (quoting Miranda v. Castro,

(9th Cir. 2002);

Jones v. United States,

(11th Cir. 2002)). As such, equitable tolling is

rarely permitted as to § 2255 motions. See id.; United States v. King, No. 18-cr-318 (JDB), 2022

15 As discussed supra, in Part I.D, the D.C. Circuit subsequently granted Fields’s request to file a second or successive § 2255 motion, and in doing so, deemed his Johnson-based claims timely, but “expresse[d] no opinion as to the timeliness of petitioner’s Graham and Miller claims,” see D.C. Cir. Order (Sept. 7, 2016) at 1.

, at *9 (D.D.C. Feb. 25, 2022) (finding that equitable tolling of § 2255’s limitations

period has been granted in “only three cases” in the last ten years).

The record in this case does not reflect the reasonable diligence or extraordinary

circumstances that would justify making this another such exceptional case. Fields submits an

affidavit in which he describes contacting his attorney about filing a petition based on Graham

for the first time in 2010, after which the attorney said he would research the issue, followed by a

long period of no apparent contact from either side, until the attorney spoke with Fields again in

early 2012 about a potential petition. See Fields Supp. Graham/Miller Mot., Ex. A, Fields Aff.

at ¶¶ 1–6, ECF No. 483-1. Then, over the next three years, Fields narrates that he attempted to

call and write to his attorney “numerous times” to inquire into the status of the petition, but did

not hear from him, until he eventually filed a complaint with the District of Columbia Office of

Disciplinary Counsel in February 2015. Id. ¶¶ 5–6. Fields claims he “settled” those proceedings

after the attorney refunded his retainer fee. Id. ¶ 6. A letter from the Office of Disciplinary

Counsel provided as an attachment to Fields’ briefing tells a different story, however. See id.,

Ex. A, Letter from the Office of Disciplinary Counsel to Thomas Fields (“ODC Letter”) at 6–7.

Specifically, the Office of Disciplinary Counsel did not find clear and convincing evidence of a

violation of the Rules of Professional Conduct and dismissed Fields’s complaint in March 2016.

Id. at 6–7. The letter further sets out the attorney’s contrary narration of events: that he

investigated Fields’s claims prior to the early 2012 phone call, and that on that call he informed

Fields that he “did not see a basis to proceed,” was unable to further assist him, and offered to

return half the retainer at that time. Id. at 6.

The Court is in no position to determine which of these conflicting versions of events is

more likely to be true based on this meager record, but these circumstances at least make clear

34 that equitable tolling is not warranted. As an initial matter, it is far from obvious that Fields’s

unspecified number of attempts to contact his attorney over the course of three years, after

apparently being content with a single request in the first two years after Graham’s publication,

would amount to reasonable diligence on Fields’s part to pursue his rights (especially when the

attorney may have informed Fields that he had ceased working for him at the start of that three

year period). Even assuming the existence of reasonable diligence, Fields does not demonstrate

that the attorney’s conduct rose to the level of an extraordinary circumstance; that is, that it was

“so outrageous or so incompetent as to render it extraordinary.” United States v. Pollard,

(D.C. Cir. 2012) (internal quotation omitted). “That type of misconduct is rare

indeed,” and “[c]ourts have routinely held that extraordinary circumstances do not include an

attorney who miscalculates filing deadlines, misrepresents the case’s status, becomes

overburdened with cases, or misunderstands governing law.” Martin,

, at *9

& nn.8–11 (collecting cases). Fields’s attorney’s case files were subpoenaed as part of the

disciplinary investigation and no clear and convincing evidence of a breach of professional

conduct was found, nor evidence to support Fields’s version of events over that of the attorney.

ODC Letter at 6–7. This record simply does not support any finding that the attorney acted

outrageously in not filing what he represented was a baseless motion, and as such the attorney

inaction does not amount to an extraordinary circumstance.

In the absence of equitable tolling, Fields’s § 2255 motion based on Graham and Miller

must be dismissed as untimely.

2. Graham and Miller Do Not Extend to Fields’s Offense Conduct

Even if not untimely, Fields’s § 2255 motion based on Graham and Miller would fail on

the merits because those cases present no bar to the sentence imposed. See, e.g., United States v.

35 Hicks,

(D.D.C. 2018) (briefly addressing why claims would fail on the

merits after concluding they must be dismissed as untimely); United States v. West,

(D.D.C. 2018) (same). Graham concerned a 16-year-old juvenile who had been

given a life sentence without parole for attempted burglary and attempted armed robbery. 560

U.S. at 53–54. The Court concluded that such a sentence was impermissible under the Eighth

Amendment, reasoning that that those who commit non-homicide crimes while still “child[ren]

in the eyes of the law” and thus possessed of lessened culpability, cannot be denied all possibility

that they might demonstrate their fitness to rejoin society later in life. See id. at 79. That

reasoning was extended in Miller, in which the Court held that mandatory life sentences without

parole for two 14-year-old children who had committed murder likewise ran afoul of the Eighth

Amendment.

.

As defendant concedes, at the time of his offense conduct, he was 22 years old, not a

juvenile. See Fields Supp. Graham/Miller Mot. at 2. He nonetheless argues that “the

constitutional logic” of Graham and Miller renders his two life sentences untenable because

those under the age of 25 are, like the juveniles in Graham and Miller, still developing and

maturing their cognitive capabilities. See

at 2–3. Defendant can point to no caselaw that has

opted to extend Graham and Miller to non-juveniles as old as 22 and, in this Circuit, the holdings

of these cases have never been applied to non-juveniles at all. See Hicks,

.

Such treatment is in keeping with the clear weight of authority elsewhere. See, e.g., Cruz v.

United States, 826 Fed. App’x 49, 52 (2d Cir. 2020) (citing United States v. Sierra,

(2d Cir. 2019)) (finding life sentences for defendants between ages eighteen and twenty-two

do not violate Eighth Amendment because the “Supreme Court has ‘chosen to draw the

constitutional line at the age of 18 for mandatory minimum life sentences’”); United States v.

36 Roof,

, 378–80 (4th Cir. 2021) (citing Roper v. Simmons,

(2005))

(explaining that in the context of categorical limitations under the Eight Amendment, the

“Supreme Court chose to draw a line at the generally accepted age of majority, 18, and did so

acknowledging that age and culpability were not perfectly linear”); United States v. Williston,

(10th Cir. 2017) (declining to extend Miller to eighteen-year-old defendant

because Supreme Court “separate[d] juvenile and adult offenders using the . . . tool of an age

cutoff”); United States v. Marshall,

, 499–500 (6th Cir. 2013) (declining to extend

Miller to defendant with “mental age of 15 ½” but physical age of 20 because an “immature

adult is not a juvenile”); United States v. Reingold,

, 214–15 (2d Cir. 2013)

(overruling district court decision extending Miller to 19-year-old defendant’s sentence because

defendant’s relative immaturity was an insufficient substitute for “actual age of minority”);

United States v. Dock, 541 Fed. App’x 242, 245 (4th Cir. 2013) (declining to extend Miller to

20-year-old defendant).

Even assuming that Graham and Miller’s protections could be extended to defendants

several years into legal adulthood as Fields urges, such an extension would not be warranted in

this case. Fields earned his life sentences for his leading role in the kidnapping, gangrape,

terrorization, and attempted murder of K.D., which acts were planned in advance and meant as

punishment for her allegedly snitching on his gang. Unlike the young teenagers’ crimes in

Miller and Graham, which occurred in the contexts of what were essentially robberies gone

wrong, Fields’s actions cannot plausibly be characterized as the type of reckless, impulsive risk-

taking that is characteristic of under-developed teenage brains. To the contrary, the offense

conduct was premeditated, retaliatory, and taken as part of Fields’s leadership role in a long-

standing, sophisticated criminal enterprise. Fields cannot claim lessened culpability and

37 responsibility for this conduct merely because he engaged in this conduct while still a young

man.

C. A Full Resentencing Hearing Is Unnecessary and Sentence Corrections Suffice

Both defendants contend that if they are successful on just one of their § 2255 claims,

“this Court should vacate [defendants’] entire sentence[s] and resentence [them] on all counts.”

Fields Supp. Johnson/Davis Mot. at 27; Johnson Supp. Mot. at 18. While both defendants are

entitled to § 2255 relief on one of their § 924(c) convictions, however, they are not entitled to a

full resentencing on all remaining counts.

Under

(b), if a court finds that a defendant's sentence “was not

authorized by law or [is] otherwise open to collateral attack,” it must “vacate and set the

judgment aside.” Thereafter, the court has four choices: to “discharge the prisoner,”

“resentence” the prisoner, “grant a new trial[,] or correct the sentence,”

with a sentence

“correction” representing a more “limited . . . action taken with respect to the original judgment,”

than full resentencing, United States v. Palmer,

(D.C. Cir. 2017).

Defendants argue that a mere sentence correction—one that would vacate their

convictions and sentences on Count 37—is insufficient in this case and that a full resentencing is

necessary for three reasons. See Fields Johnson/Davis Supp. Mot. at 28; Johnson Supp. Mot. at

19. 16 None of these reasons is persuasive.

16 Johnson, for his part, also uses his Reply brief to air a series of other grievances with his sentence calculation, for example, that he should be resentenced on his first-degree sexual assault convictions now that D.C. has moved away from an indeterminate sentencing system, abolished parole, and created new voluntary sentencing guidelines, and that he should be resentenced on a number of his federal convictions to take into account intervening changes to the federal Guidelines. See Johnson Reply at 18–21. He also asserts, in the Reply brief’s conclusion, that he “likely has” still more “claims under § 404 of the First Step Act and the Sentencing Commission’s so-called ‘drugs minus two’ amendments,” which he would be able to bring at a full resentencing, but offers no elaboration as to what those claims are. Id. at 22. The government, of course, has had no opportunity to respond to these points, which were not previewed in Johnson’s opening brief.

38 First, defendants claim that the process of “stacking” § 924(c) convictions, which was

relied upon in calculating their total sentences and has since been eliminated, requires a fresh

resentencing. Fields Johnson/Davis Supp. Mot. at 28; Johnson Supp. Mot. at 19–20. Defendants

correctly explain that starting in December 2018, the government was no longer able to invoke

§ 924(c)’s enhanced mandatory consecutive sentences for “second or successive” § 924(c)

convictions in the same case in which the first such conviction is obtained. See First Step Act,

P.L. 115-391,

, at § 403 (Dec. 21, 2018). Defendants are incorrect, however, that

this change requires a full resentencing.

As to Johnson, after his initial and now void § 924(c) conviction in Count 37, he only

received one further § 924(c) conviction (Count 38), which was considered second or successive

at the time and subject to the enhanced sentence. Once his conviction and sentence on Count 37

is vacated, then, Johnson has no second or successive § 924(c) convictions at all, only a single

§ 924(c) conviction in Count 38. As Johnson argues, the 20-year enhanced sentence imposed as

to his Count 38 conviction must therefore be reduced, as a single § 924(c) conviction should only

receive 5 years. Johnson Supp. Mot. at 20. That would be equally true either pre- or post-First

Step Act, however, and thus “stacking” is not the problem and does not militate towards a full

resentencing hearing. Rather, the issue can be addressed by simply correcting the sentence on

Count 38 precisely as Johnson indicates, from 20 years to 5 years, after voiding Count 37.

Generally, courts “need not consider” arguments raised for the first time in reply briefs, see Am. Wildlands v. Kempthorne,

(D.C. Cir. 2008), and reaching those arguments here would be particularly inappropriate, where these assertions in favor of a full resentencing have nothing to do with the convictions and sentences at issue in his § 2255 motion. Habeas comes with a panoply of procedural requirements and limitations that severely restrict the viable collateral challenges a petitioner can bring to his conviction and sentence. Johnson had the opportunity to bring one such viable challenge to his § 924(c) convictions based on Johnson and Davis, but as is addressed infra, his partial success on the merits of that challenge does not require a full resentencing. He cannot now shoehorn into his reply briefing his many other arguments regarding his previously unchallenged convictions—which arguments he makes no attempt to establish would be cognizable in habeas, let alone in this particular § 2255 motion—in order to obtain a remedy to which his viable collateral challenge does not entitle him.

39 Fields, by contrast, after vacatur of Count 38, still has five § 924(c) convictions that

remain standing. Nonetheless, the fact that four of them were subject to the enhanced sentences

due to “stacking,” still does not entitle him to resentencing. Besides his § 924(c) counts, he was

also sentenced on 23 separate counts, 17 including two for which he earned life sentences of

imprisonment, all of which “remain intact.” Smith, 610 F. Supp. 3d at 208. “In other words,

stacking had no practical effect on this defendant’s sentence,” and this argument is therefore no

basis for a full resentencing as opposed to a sentence correction. Id. at 207–08.

Next, defendants invoke the sentencing package doctrine to argue that the necessity of

partial vacatur of their sentences on some counts should set into motion a full resentencing on all

counts. Fields Johnson/Davis Supp. Mot. at 28–30; Johnson Supp. Mot. at 20–22. Under the

sentencing package doctrine, “at least in some instances, sentences on multiple counts may

comprise a ‘sentencing package,’ so that attacking the sentence on some counts . . . reopens the

sentence on the other counts as well.” United States v. Townsend,

(D.C. Cir.

1999). This doctrine has developed in recognition of the fact that “when a defendant is found

guilty on a multicount indictment, there is a strong likelihood that the district court will craft a

disposition in which the sentences on the various counts form part of an overall plan, and that if

some counts are vacated, the judge should be free to review the efficacy of what remains in light

of the original plan.”

(internal quotation omitted). Counts that “are inherently

interdependent,” including § 924(c) and their predicate offenses, may generate sentences

“particularly well suited to be treated as a package,” id. at 567–68, as do counts where the

sentence imposed varies from the guidelines range, since “[t]he amount of downward departure

allowed by a sentencing judge is inevitably affected by the total sentence imposed,” Lassiter, 1

17 Fields’s other 11 counts of conviction were vacated as merged with the remaining 23 counts on which he was sentenced. See Fields Judgment at 1.

40 F.4th at 30 (quoting Townsend,

). Put another way, the sentencing package

doctrine applies when vacatur of a challenged conviction requires revisiting other counts to

“resentence” the defendant, or to “correct” a sentence, since the punishment for the challenged

sentence is not reflected solely in “the punishment for [that] single count,” United States v.

Morris,

(D.C. Cir. 1997), or where “removal of the sentence on one count

draws into question the correctness of the initial aggregate minus the severed element,” United

States v. Smith,

(D.C. Cir. 2006).

Despite the “singularity of the judgments under which” defendants are imprisoned,

Morris,

, however, “not every judgment involving multiple convictions presents a

sentencing package in which vacating the sentence on one count unravels the remaining

sentences,” United States v. Palmer,

(D.C. Cir. 2017) (citing Smith, 467 F.3d at

789–90). When the determinations of multiple sentences are “in no way interdependent,” the

sentences may not be reviewed as an aggregate, and the “sentencing package doctrine . . . affords

no apparent basis for any resentencing on the other counts” not challenged. Smith,

.

As this Court has previously recognized, the D.C. Circuit has only applied the sentencing

package doctrine under “narrow circumstances,” United States v. Sumler, No. 95-154-2 (BAH),

, at *15 (D.D.C. Dec. 28, 2021). The requisite interdependence of a

defendant’s sentences may be gleaned, for example, when sentences imposed on some counts are

modified, either increasing or decreasing in severity, to account for a consecutive mandatory

sentence in the aggregate sentence. See, e.g., Lassiter,

(affirming, on

resentencing, increased sentence from 240 to 300 months on defendant’s kidnapping conviction,

after vacatur of his

(c) conviction, and finding the fact defendant had originally

41 been granted a “33% discount on [his] kidnapping count, a variance especially striking given

[his] concededly egregious criminal conduct” to be a strong indicator that the judge had

“originally intended a sentencing package” (internal citations and quotation omitted));

Townsend,

(observing that “[t]he amount of downward departure allowed by a

sentencing judge is inevitably affected by the total sentence imposed, and the departure allowed

on a given count will naturally depend on the departure allowed on other counts,” and affirming

reopening of entire sentence as a sentencing package, resulting in re-imposition of original

sentence, despite vacatur of § 924(c) counts, since “the departure actually imposed on the non-

924(c) counts was chosen in light of the term imposed on the § 924(c) counts”). Conversely, the

lack of interdependence may also be demonstrated by imposition of separate sentences, without

any indicia by the sentencing judge that the aggregate sentence was intended to accommodate

any one of those sentences. See Smith,

(concluding that defendant was not

entitled to resentencing on his grouped counts in the wake of vacatur of his

(c)

conviction, because the sentences on the grouped counts and the § 924(c) violation “were in no

way interdependent” and the sentencing court “exercising its discretion, [had] sentenced Smith to

several concurrent life terms,” declining to depart from the “highest sentence available” under

statute, before imposing the vacated consecutive 30-year term under § 924(c)).

Here, two factors make particularly clear that the sentences imposed on the successfully

challenged counts in these cases were not so interdependent with the sentences imposed on the

remaining counts of conviction that they should be treated as a package. First, both defendants’

sentences were adjusted in 2001 following their direct appeal, and those resentencings adjusted

only those charges that had been affected by the legal issues in the appeal, resulting in reduced

overall sentences for both defendants. See Johnson/Fields First Sentencing Tr. at 20:15–16,

42 28:24–25, ECF No. 254 (initially sentencing Fields to life plus 120 years and Johnson to life plus

25 years); Fields Second Sentencing Tr. at 19:4–5 (resentencing Fields to life plus 105 years);

Johnson Second Sentencing Tr. at 14:15–17, ECF No. 376 (resentencing Johnson to 49 years and

four months). If their overall sentences had been meant as packages, the resentencing court

would likely have modified the minimum term imposed as to other counts in order to preserve

the overall scheme. This is particularly apparent as to Johnson, who originally received greater

than a life sentence, but was resentenced to less than fifty years despite still being convicted on

five charges of first-degree sexual assault while armed, all of which had available maximum

sentences of life. See id. at 14:7–11. Had the resentencing court wished to preserve Johnson’s

overall “package” of at least a life sentence, he could have done so. That he did not is a strong

indication that no such package existed, and that the sentences imposed on the various charges

were not interdependent.

Second, just as in Smith, defendants here were sentenced on several groups of counts of

conviction, and the sentencing court dealt first with the groups of substantive offenses that

earned defendants their lengthiest periods of incarceration, see Johnson Second Sentencing Tr. at

14:7–9 (imposing sentences of 240 months for narcotics conspiracy and VICAR AWIM, 292

months for RICO conspiracy and kidnapping, and 180 months to life for first degree sexual

assault while armed); Fields Second Sentencing Tr. at 18:9–19 (imposing two life sentences for

RICO conspiracy and kidnapping and multiple 10–20-year sentences for the various counts of

first-degree sexual assault, narcotics conspiracy, and VICAR offenses), before moving on to the

§ 924(c) convictions predicated on some of the foregoing crimes, which sentences were specified

as running consecutively to the others, see Johnson Second Sentencing Tr. at 14:9–10, 12–17;

Fields Second Sentencing Tr. at 18:19–20, 19:1–3. The sentences were thus explicitly given in

43 “segments,” and to assume “an interconnectedness or interdependence” of those segments would

be “to ignore the plain language of the sentencing court.” Smith, 605 F. Supp. 3d at 26.

In short, no indicia of interdependence between the successfully challenged § 924(c)

convictions and any other of their convictions is reflected in defendants’ sentences that would

support application of the sentencing package doctrine to warrant the alteration of the otherwise

final sentences on those remaining convictions. Instead, the appropriate response to the

successful challenges is to simply vacate and correct the affected counts.

Finally, defendants argue that they are entitled to new, full resentencings to take into

account their “youth” at the time they committed their crimes under the § 3553(a) factors. Fields

Johnson/Davis Supp. Mot. at 30–31; Johnson Supp. Mot. at 22–23. Defendants are correct that

if they had been sentenced for the first time today, their age could have been considered under

the statutory sentencing factors, while it was not likely to have been considered under the then-

mandatory Guidelines at the time of their sentencing. See Fields Johnson/Davis Supp. Mot. at

30; Johnson Supp. Mot. at 22. As Fields acknowledges, however, that intervening change in the

law does not entitle non-juvenile federal defendants who were convicted as young men and

women to resentencings solely so that their ages can be taken into account. See Fields

Johnson/Davis Reply at 26. As discussed at length supra, defendants have succeeded in

collaterally challenging only one of their counts of conviction, and the basis for that successful

challenge has nothing to do with the ages at which they committed their crimes. The identified

error can therefore be fully remedied with straightforward sentence corrections, and provides no

basis for a full resentencing so that defendants might mount arguments about their relative youth.

44 IV. CONCLUSION

For the foregoing reasons, defendants’ motions to vacate the judgments under

are granted in part and denied in part. Fields’s and Johnson’s motions to vacate based on

Johnson and Davis are granted as to their convictions in Count 37, for use of a firearm during

kidnapping under

(c), which convictions are vacated along with the

corresponding 20-year (as to Fields) and 5-year (as to Johnson) terms of imprisonment. The

sentence imposed on Johnson’s conviction in Count 38, which is now his first rather than a

second or successive conviction under § 924(c), is therefore adjusted from 20 years to 5 years.

The motions based on Johnson and Davis are otherwise denied, as is Fields’s additional § 2255

motion to vacate based on Graham and Miller. The sentences imposed on all defendants’ other

counts of conviction remain final and undisturbed, because the sentencing package doctrine does

not require a full resentencing.

An order consistent with this Memorandum Opinion will be entered contemporaneously.

Date: June 27, 2023

__________________________ BERYL A. HOWELL U.S. District Court Judge

45