Larode v. United States
Larode v. United States
Opinion of the Court
Before the Court is Ossie K. Larode's ("Larode" or "movant") motion, filed under
I.
Larode was initially indicted on February 10, 2005 by a federal grand jury in the Eastern District of Virginia. After one of the injured victims died as a result of his injuries, on April 6, 2005, a superseding five-count indictment was returned charging Larode with carjacking resulting in death in violation of
Under a written plea agreement, on June 30, 2006, Larode pleaded guilty to murder in the second degree as charged under Count 2 and to using a firearm during a crime of violence as charged under Count 5. Counts 1, 3, and 4 were dismissed on the Government's motion. The plea agreement incorporated a signed statement of facts that established the following:
On January 11, 2005, defendant Ossie K. Larode approached Mr. Byung Ki Kim outside the McDonald's restaurant located at 1000 North Henry Street, in Alexandria, Virginia, knocked the keys to a 2003 Cadillac Seville from Kim's hand, threatened to shoot Kim if he didn't back away, got in the vehicle and drove off.
Kim telephoned a report of the carjacking to the Alexandria Police Department, and Alexandria police and other law enforcement officers began looking for the vehicle. One of those officers spotted the vehicle in Alexandria and began a pursuit that eventually was joined by other officers and led to Interstate 395 in the vicinity of the Pentagon. As Larode drove by the Pentagon, he suddenly turned the wrong way on to [sic] an exit ramp that led from the Pentagon South Parking Lot to Interstate 395, and sped toward the South Parking Lot, followed by several pursuing *564officers. As he left the ramp he continued the wrong way on South Rotary Road, which runs along the perimeter of the parking lot and which is in the Eastern District of Virginia.
At that same time, James Feltis, a federal employee and officer with the Pentagon Police Department, was on duty outside a traffic control booth on South Rotary Road. Apparently, thinking that Larode was simply lost or confused, Feltis stepped into the traffic lane and into the path of the Cadillac and signalled [sic] for him to stop. Instead and without making any effort to slow down or stop, Larode struck Feltis, critically injuring him and knocking him into the air.
Feltis was medevaced to Inova Fairfax Hospital, in Fairfax, Virginia, where he died, having never regained consciousness, on February 14, 2005, as a proximate result of the injuries he incurred when he was struck by Larode. Throughout his attempt to elude the pursuing officers, including the time immediately before his striking of Feltis, defendant Larode drove the stolen Cadillac recklessly with extreme disregard for human life. His taking of Feltis' life was unlawful and did not result from accident, inadvertence or other [sic] innocent reason.
After striking Feltis, Larode continued the wrong way on South Rotary Road, up the wrong way on the ramp to Washington Boulevard with several officers still in pursuit and entered Washington Boulevard still going the wrong direction. Larode then tried to turn in the right direction, and as he did so, his car was struck and stopped by one of the pursuing officers. Once Larode stopped, one of those officers ordered him to get out of his vehicle. When he didn't, the officers broke the drivers [sic] side window and pulled Larode from the vehicle. A struggle ensued between Larode and the officers, during which Larode assaulted three Pentagon Police Department officers, who were assisting in subduing Larode, and all of whom at the time were employees of the United States engaged in the performance of their official duties. In the course of Larode's assaulting the Pentagon Police Department officers, he got possession of one of the other officers' service firearms, a Glock .40 caliber semiautomatic pistol, and fired it three times at them.
Larode's assaulting of the three Pentagon Police Department officers was unlawful as was his using, brandishing and discharging the pistol during and in relation to that assault.
Statement of Facts [Dkt. No. 55] ¶¶ 1-6. Larode's plea was accepted, and he was sentenced to a total of 382 months' imprisonment, consisting of 262 months for Count 2 and 120 consecutive months for Count 5, among other penalties.
On June 23, 2016, Larode filed a motion pursuant to
II.
A.
Section 924(c) of Title 18 of the U.S. Code provides in relevant part:
(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime ..., uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence ... -
(i) ... be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
....
(3) For purposes of this subsection the term "crime of violence" means an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) 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.
Section 924(c)(3) is similar in text and structure to other provisions of the U.S. Code. For example, using nearly identical language,
The term "crime of violence" means-
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
*566[T]he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another....
B.
Larode's motion to vacate his conviction for using a firearm during a crime of violence in violation of § 924(c) is based on two Supreme Court decisions respectively addressing § 924(e)(2)(B)(ii ) and § 16(b) : Johnson II,
In Dimaya, the Court held that under a "straightforward application" of Johnson II, § 16(b)'s residual clause, like the residual clause in § 924(e), is also unconstitutionally vague.
III.
Larode contends that § 924(c)(3)(B), which is similar to § 924(e) and nearly identical to § 16(b), is also unconstitutionally vague and that therefore his conviction for violating § 924(c) must be set aside. The Government responds that Larode's § 2255 motion is barred by a bevy of procedural obstacles and, in any event, fails on the merits. This Court has extensively addressed and rejected the Government's procedural arguments in previous cases involving § 924(c), see, e.g., Chapman v. United States,
A.
The parties have fundamentally mischaracterized the § 924(c)(3) analysis. Larode's motion to vacate states that "the underlying 'crime of violence' for the § 924(c) charge was
But the parties have focused on the wrong offense. To be sure, Larode pleaded guilty to second-degree murder and using a firearm during a crime of violence; however, second-degree murder was not the predicate offense for his 924(c) conviction. Instead, as the superseding indictment makes clear, Count 5 charged Larode with using, brandishing, and discharging a firearm
during and in relation to a crime of violence for which he may be prosecuted in a court of the United States, specifically, assaulting an officer of the United States in violation of Title 18, United States Code, Section 111, as set forth and charged in Count 3, and attempted murder of an officer of the United States in violation of Title 18, United States Code, Section 1114, as set forth and charged in Count 4 ....
Thus, it was not second-degree murder, but rather assault on, and attempted murder of, a federal officer, which served as the predicate crimes of violence for Larode's § 924(c) conviction and which must be analyzed under § 924(c)(3).
That Counts 3 and 4 of the superseding indictment were ultimately dismissed as part of Larode's plea agreement is inconsequential. "[W]hile it is necessary for the government to present proof of the underlying crime to convict under § 924(c), a defendant need not be convicted or even charged with the underlying crime to be convicted under § 924(c)." United States v. Nelson,
With these principles in mind, the Court must consider whether either of Larode's predicate offenses qualifies as a crime of violence for purposes of § 924(c)(3).
B.
Larode argues that § 924(c)(3)(B), the residual clause, must be treated just as the Supreme Court treated § 924(e)(2)(B)(ii ) and § 16(b) in Johnson II and Dimaya, respectively. That is, he argues that in determining whether a predicate offense qualifies as a crime of violence under § 924(c)(3)'s residual clause, the Court is bound to apply the categorical approach, which (in conjunction with the clause's capacious language) renders that clause unconstitutionally vague. The Government disagrees, arguing that the residual clause may fairly be read to require a "conduct-specific" approach-one based on the defendant's actual, real-world behavior rather than on a generalized analysis of the nature of the crime charged-and that such an approach would avoid any constitutional defects in the residual clause.
This Court has adopted the Government's view in other § 924(c) cases, see, e.g., Chapman,
Applying the conduct-specific approach in this case, the Court has little trouble concluding that Larode's conviction and sentence for using a firearm during a crime of violence was proper. Larode carjacked a Cadillac and fled, leading police on a dangerous pursuit "with extreme disregard for human life." Statement of Facts [Dkt. No. 55] ¶ 3. As Larode sped the wrong way down a one-way road, his car struck Feltis, throwing him into the air, knocking him unconscious, and injuring him so severely that he would die a month later. Once three Pentagon Police Department officers finally managed to stop Larode's car and pulled him out of the vehicle, he proceeded to struggle violently with the officers. During the struggle, he grabbed an officer's service firearm and fired it at the officers three times. There is simply no doubt that by violently fighting with the three federal officers and firing a gun at them, Larode committed a criminal offense that "by its nature ... involve[d] a substantial risk that physical force against the person or property of another" would be used,
*569C.
Although the foregoing analysis is sufficient to dismiss Larode's § 2255 motion, his conviction was also proper for the independent reason that he committed a crime of violence under the force clause. As discussed above, the predicate offenses for Larode's § 924(c) conviction were assaulting a federal officer in violation of
Under Fourth Circuit precedent, analyzing whether an offense falls within the force clause's ambit requires the Court to apply the categorical approach,
Section 111 of Title 18 of the U.S. Code provides:
(a) In general.-Whoever-
(1) forcibly assaults, resists, opposes, intimidates, or interferes with any person designated in section 1114 of this title9 while engaged in or on account *571of the performance of official duties; or
(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person's term of service,
shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.
(b) Enhanced penalty.-Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.
In assessing whether § 111"has as an element the use, attempted use, or threatened use of physical force against the person or property of another" and thus qualifies as a crime of violence under § 924(c)(3)(A), the Court is principally guided by Johnson v. United States (Johnson I),
Many courts, applying Johnson I, have concluded that although § 111(a) uses the adverb "forcibly," it "is categorically not a crime of violence because 'the government need not prove, and an adjudicator need not find, that the offense involved violent force capable of causing physical pain or injury.' " See United States v. Diaz,
Section 111(b) establishes an enhanced penalty for any defendant who "uses a deadly or dangerous weapon ... or inflicts bodily injury" in the course of "forcibly" assaulting, resisting, opposing, impeding, intimidating, or interfering with a federal officer in the course of that officer's performance of official duties. Both forms of an enhanced § 111(b) charge qualify as predicate crimes of violence under § 924(c)(3)(A). First, a deadly or dangerous weapon is "any object which, as used or attempted to be used, may endanger the life of or inflict great bodily harm on a person." Taylor,
Accordingly, § 111(b), one of the predicate offenses underlying Larode's § 924(c)(3) conviction, qualifies as a crime of violence under the force clause. Although Larode did not plead guilty to Count 3, he admitted in the statement of facts incorporated into his plea agreement that he physically struggled with three Pentagon Police Department officers, grabbed one of their firearms, and fired the weapon at the officers as they attempted to subdue him. Indeed, the statement of facts explicitly states on no fewer than three occasions that Larode "assaulted" the federal officers. These stipulated facts are more than sufficient to serve as definitive proof of the underlying predicate offense. Thus, even if the Fourth Circuit or the Supreme Court were to declare § 924(c)(3)'s residual clause to be unconstitutionally vague, Larode's conviction would stand under the force clause.
IV.
For the reasons stated above, movant's Motion to Vacate Conviction Under
Entered this 24th day of January, 2019.
Larode had a category I criminal history and a total offense level of 37, resulting in an advisory guidelines range of 210 to 262 months' imprisonment for Count 2.
This Court has traditionally referred to § 924(c)(3)(A) as the "force" clause. See, e.g., Royer v. United States,
Section 16 does not itself criminalize any conduct or mandate any enhanced punishments. Instead, it provides a generic definition of "crime of violence" that is incorporated by reference into other provisions of the U.S. Code. See, e.g.,
Section 924(e) provides for a minimum term of 15 years' imprisonment for any individual convicted of unlawful possession of a firearm in violation of
The Government did not ask the Supreme Court to abandon the categorical approach in either Johnson II or Dimaya.
Other courts of appeals have suggested that the Government's argument may have merit but have considered themselves bound to apply the categorical approach under existing circuit precedent. See, e.g., United States v. Davis,
But cf. Gordillo Portocarrero,
Although this Court has jettisoned the categorical approach with respect to § 924(c)(3)'s residual clause, see, e.g., Chapman,
Yet there is little doubt that applying the categorical approach to the force clause often produces "arbitrary and inequitable results." Mathis v. United States, --- U.S. ----,
In that sense, it bears emphasizing that the categorical approach was raised in a specific environment. It came about as a means of sorting out whether a defendant's previous conviction-often years old and the product of prosecution in a different jurisdiction or by a different sovereign-justifies an enhanced sentence in a new federal prosecution, see, e.g., Taylor v. United States,
Those conditions are simply not present in cases where "the predicate offense and the § 924(c) offense are companion contemporaneous crimes, charged in the same indictment before the same federal judge." United States v. St. Hubert,
Section 1114 establishes special offenses for murder, manslaughter, or attempted murder or manslaughter of "any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance."
The majority opinion in Stokeling states that its reasoning "comports with" Johnson I. --- U.S. at ----,
See U.S. Sentencing Guidelines Manual § 2L1.1 cmt. (U.S. Sentencing Comm'n 2018) (providing that "crime of violence" means, among other things, any "offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another").
Count 3 of the superseding indictment charged Larode with violating
Reference
- Full Case Name
- Ossie K. LARODE, Movant v. United States
- Status
- Published