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United States v. Douglas

United States Court of Appeals, First Circuit

October 12, 2018

UNITED STATES, Appellee,
v.
ISHMAEL DOUGLAS, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Jon D. Levy, U.S. District Judge]

          J. Hilary Billings on brief for appellant.

          Benjamin M. Block, Assistant United States Attorney, and Halsey B. Frank, United States Attorney, on brief for appellee.

          Before Lynch, Stahl, and Thompson, Circuit Judges.

          LYNCH, CIRCUIT JUDGE.

         This direct appeal after entry of a guilty plea raises important questions under federal criminal law, particularly whether it is appropriate to use the categorical approach in determining what is a "crime of violence" under 18 U.S.C. § 924(c)(3)(b).

         Ishmael Douglas entered a conditional plea of guilty to charges of conspiracy to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and of using, carrying, or brandishing a firearm in relation to a "crime of violence," in violation of 18 U.S.C. § 924(c)(1). Douglas now appeals the district court's denial of his motion, before the plea, to dismiss a portion of the latter charge, on the ground that the residual clause at 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague under Johnson v. United States, 135 S.Ct. 2551 (2015), and Sessions v. Dimaya, 138 S.Ct. 1204 (2018). See United States v. Williams, 179 F.Supp.3d 141 (D. Me. 2016). The district court did not reach this issue in denying the motion. Id.

         After de novo review, we conclude that § 924(c)(3)(B) is not, as Douglas argues, void for vagueness. That is because the statute reasonably allows for a case-specific approach, considering real-world conduct, rather than a categorical approach, and because Douglas's conspiracy to commit a Hobbs Act robbery qualifies as a "crime of violence." We largely agree with the reasoning of the Second Circuit in a similar case, United States v. Barrett, 903 F.3d 166 (2d Cir. 2018), save for one point, and with the result and much of the reasoning in Ovalles v. United States, No. 17-10172, 2018 WL 4830079 (11th Cir. Oct. 4, 2018) (en banc). We affirm.

         I. Background

         A. Facts

         We describe the background facts of the underlying offense, accepted by both parties, [1] because they are relevant to a case-specific, real-world analysis of a "crime of violence" under § 924(c)(3)(b).

         In August 2014, Douglas, along with Kourtney Williams, Victor Lara, Jr., and Heidi Hutchinson, conspired to commit a home invasion robbery in Minot, Maine. Williams, Lara, and Hutchinson began planning the robbery on July 26; Douglas joined the conspiracy on either August 1 or August 2.[2] The conspirators targeted the house of a person they believed to be engaged in illegal drug trafficking, in order to steal Percocet (oxycodone) pills and proceeds from the drug trafficking.

         On August 2, Hutchinson drove the other conspirators to the targeted house in Minot and waited outside after dropping them off. Lara, Williams, and Douglas, in partial disguise, entered the house by breaking a glass sliding door. They yelled "get down," "DEA," and "police." Williams carried a pistol; Lara had a crowbar. Douglas found in a bedroom a 9-millimeter Beretta handgun with an extended clip, which he took and brandished during the robbery.

         The conspirators found three men inside the house, whom they tried to secure by placing zip ties around the men's hands.[3]But the zip ties were not large enough for the task.

         Lara assaulted the three men with a crowbar. First, Lara beat and bloodied one man, striking him in the back, shoulders, and head with a crowbar because he did not look away from the conspirators when told to do so. Lara later beat him again with a crowbar when he said that he did not know the combination to a safe in the house. Lara beat a second man in the back, shoulders, arms, and thighs with a crowbar after he was found hiding under a futon. Lara also beat the third man in the face, legs, and back.

         Douglas and Williams also threatened the three men several times with firearms. The conspirators demanded that the men, at gunpoint, give them "the shit" and the combination to the safe. Douglas also forced the first man to the garage, with Douglas holding his hand on the man's neck and pressing a gun to his head. After the man stated that there was nothing in the garage, Lara told Douglas to shoot him, but Douglas did not do so. One of the conspirators also dragged that man down a hallway, holding him in a headlock.

         After unsuccessfully searching the house for oxycodone and money, Williams and Lara then forced two of the men outside at gunpoint. The first man -- believing he was about to be shot --fled to a neighbor's house. He saw the conspirators run to Hutchinson in the waiting SUV and drive away. The third man escaped and called the police from another neighbor's house.

         The conspirators did not find any pills or proceeds. They did steal a video game console, six to eight ounces of marijuana, and the Beretta pistol that Douglas had found, taken, and brandished during the robbery. Police, acting with a search warrant for the house, found the crowbar and zip ties used in the robbery. DEA agents later found items at the house that the conspirators had unsuccessfully sought: 147 fifteen-milligram and 504 thirty-milligram oxycodone pills, 376 grams of powder cocaine, thirty-three pounds of marijuana, and more than $6, 000 in cash. Later, pursuant to a warrant, the police searched a storage unit used by the conspirators and found the two guns brandished in the robbery.

         B. Procedural History

         On April 7, 2015, Douglas was charged with four counts of a seven count indictment: conspiracy to possess with intent to distribute oxycodone, in violation of 21 U.S.C. § 846 (Count One); conspiracy to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count Two); possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Five); and knowingly using, carrying, and brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (Count Six).

         Douglas moved to dismiss the portion of Count Six containing "the allegation that he knowingly used, carried, and brandished a firearm during and in relation to a crime of violence." In effect, he claimed that a conspiracy to commit a Hobbs Act robbery does not qualify as a "crime of violence" under 18 U.S.C. § 924(c).

         The district court denied this motion in an order issued on April 15, 2016. Williams, 179 F.Supp.3d at 155. Taking a categorical approach to the "force clause"[4] at § 924(c)(3)(A), the district court determined that "a conspiracy to commit a Hobbs Act robbery may serve as a predicate 'crime of violence' under the 'force clause.'" Id. The district court did not reach Douglas's argument that § 924(c)(3)(B), the residual clause, [5] is void for vagueness in light of Johnson. Id.

         Douglas then entered a conditional guilty plea to Counts Two and Six, reserving his right to appeal the district court's denial of the motion to dismiss a portion of Count Six. At the Rule 11 hearing, Douglas affirmed that he understood the basis for the charges. Defense counsel acknowledged that the "admissible part of the evidence would permit a properly instructed jury to determine beyond a reasonable doubt" that Douglas had committed the charged offenses.

         The district court sentenced Douglas to 108 months' imprisonment: twenty-four months on Count Two and eighty-four months on Count Six, to be served consecutively. Douglas appealed the denial of his motion to dismiss.

         II. Discussion

         We address three substantive issues. First, we consider Douglas's assertion that the government has waived its key argument on appeal that the use of the term "crime of violence" in § 924(c)(3)(B) allows for a case-specific rather than a categorical approach, by not asserting it in the district court.[6]The government acknowledges it made a concession, but argues it was not a waiver. Second, we reach the merits of Douglas's argument that, under Johnson and Dimaya, the residual clause at § 924(c)(3)(B) is void for vagueness. The government does not defend the district court's alternate rationale or contend that the conspiracy charged would qualify as a "crime of violence" under the force clause at § 924(c)(3)(A), so we do not address this point.[7] Third, because we find that § 924(c)(3)(B) is not void for vagueness, we consider -- by a case-specific, real-world approach -- whether Douglas's particular conspiracy to commit a Hobbs Act robbery qualifies as a "crime of violence" under the residual clause. We affirm the denial of the motion to dismiss.

         We review de novo the denial of Douglas's motion to dismiss a portion of Count Six of his indictment, as Douglas's appeal challenges the constitutionality of a federal statute. See, e.g., United States v. Hussein, 351 F.3d 9, 14 (1st Cir. 2003). And we also review de novo the proper understanding and application of "crime of violence" in the residual clause. See, e.g., United States v. Turner, 501 F.3d 59, 67 (1st Cir. 2007).

         A. Concession and Waiver

         We turn to the intertwined issues of concession and waiver. At the district court proceedings, which occurred before the Supreme Court's decision in Dimaya, the government acknowledged that § 924(c)(3)(B) "involves a risk-based analysis of the 'ordinary case' of a predicate offense." Douglas argues, albeit solely in his reply brief, that the government has therefore waived its argument that § 924(c)(3)(B) allows for a case-specific, real-world approach rather than a categorical approach. The government asserts that its acknowledgement of the categorical approach in the district court should be viewed at most as a concession made for purposes of argument. Admittedly, the line between waiver and concession is a hazy one. See, e.g., United States v. Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011) ("Courts are not always consistent in their use of the term waiver . . . . [A]n explicit concession can waive both existing and yet-to-be-recognized rights." (emphasis in original)). Whether the government's acknowledgment in the district court is best viewed as a concession or a waiver, the situation here -- where an intervening Supreme Court case, Dimaya, has shifted the relevant legal landscape -- leads us to conclude that we should review the substantive issue.

         The law is clear that a "concession by either party in a criminal case as to a legal conclusion is not binding on an appellate court." United States v. Sanchez-Berrios, 424 F.3d 65, 81 (1st Cir. 2005); accord United States v. Borrero-Acevedo, 533 F.3d 11, 15 n.3 (1st Cir. 2008). There are at least three "pertinent considerations" in determining whether we should address an earlier concession by a party:

1) whether the issue is recurrent so that decision would give guidance to the district courts, 2) whether it would be unseemly to accept, even arguendo, a mistaken legal proposition and reason from it to decide the case, and 3) whether the issues are technical and complex and not explored carefully in existing decisions so that adversary briefing would be critical.

United States v. Mescual-Cruz, 387 F.3d 1, 8 n.2 (1st Cir. 2004). Each consideration leads us to bypass the so-called concession and reach the merits. Indeed, the opinion in Dimaya alone would ...


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