United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE.
is the movant's Emergency Motion to Correct Sentence
Under 28 U.S.C. § 2255, filed on June 23, 2016, by his
counsel, then-Federal Public Defender Christian M. Capece.
action was previously referred to the Honorable Dwane L.
Tinsley, United States Magistrate Judge, for submission to
the court of his Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28
U.S.C. § 636(b)(1)(B). On July 31, 2019, the magistrate
judge entered his PF&R recommending that the motion be
denied, and that the civil action be dismissed from the
court's docket. The movant filed objections on August 14,
2019, to which the United States did not reply.
objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a
district court to ‘make a de novo determination of
those portions of the [magistrate judge's]
report or specified proposed findings or recommendations to
which objection is made.'” Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (emphasis in original) (quoting 28 U.S.C.
19, 2007, the movant pled guilty in the above-cited criminal
action to one count of witness tampering, in violation of 18
U.S.C. § 1512(a)(1)(C), and one count of knowingly
using, carrying, and discharging a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C.
movant was sentenced to fifteen years imprisonment followed
by a three-year term of supervised release on the witness
tampering count, and a consecutive term of ten years
imprisonment followed by a five-year term of supervised
release on the second count. He was also ordered to pay
restitution in the amount of $5, 106.49 and a $200 special
assessment. He did not appeal his conviction or sentence.
United States v. Johnson, 135 S.Ct. 2551
(2015), the Supreme Court found the residual
clause of the definition of “crime of violence”
found in the Armed Career Criminal Act, 18 U.S.C. §
924(e)(2)(B), to be unconstitutionally vague. The movant
thereafter filed the instant motion, arguing that
Johnson also renders the similar definition of
“crime of violence” found in 18 U.S.C. §
924(c)(3)(B) -- which applies to 18 U.S.C. §
924(c)(1)(a)(iii) -- unconstitutionally vague and that
witness tampering therefore no longer constitutes a crime of
violence under that statute.
then, the law on the issue has expanded. In 2018, the Supreme
Court decided Sessions v. Dimaya, 138 S.Ct. 1204
(2018), which expanded Johnson to find that the
residual clause in the “crime of violence”
definition of 18 U.S.C. § 16(b) is also
unconstitutionally vague. Then, in 2019, the findings of
Johnson and Dimaya were expanded further
when the Supreme Court decided United States v.
Davis, 139 S.Ct. 2319, which held that the residual
clause of the “crime of violence” definition
found in 18 U.S.C. § 924(c)(3)(B) is also
the residual clause, a crime only constitutes a crime of
violence if it meets the requirements of 18 U.S.C. §
924(c)(3)(A), the “elements clause, ” which
requires the crime to be a felony that “has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another[.]” To
determine whether a crime qualifies under the elements
clause, “courts use . . . the ‘categorical'
approach. They look to whether the statutory elements of the
offense necessarily require the use, attempted use, or
threatened use of physical force.” Simms, 914
F.3d at 233. Courts “consider only the crime as
defined, not the particular facts in the case.”
the question here is whether witness tampering under 18
U.S.C. § 1512(a)(1)(C) has as an element the use,
attempted use, or threatened use of physical force. The text
of that statute makes it a crime to “kill or
attempt to kill another person, with intent to . . .
prevent the communication by any person to a law enforcement
officer or judge of the United States of information relating
to the commission or possible commission of a Federal offense
or a violation of conditions of probation, parole, or release
pending judicial proceedings[.]” 18 U.S.C. §
magistrate judge, in thoroughly considering the issue,
applied the appropriate caselaw and aptly determined that
killing or attempted killing necessarily requires the use of
physical force and that 18 U.S.C. § 1512(a)(1)(C) has as
an element the use, attempted use, or threatened use of
physical force, and is therefore a crime of violence.
movant raises five objections to the PF&R. First, the
movant objects that: “the record does not establish
that West's original conviction arose under the force
clause.” Obj. at 1. The defendant does not elaborate on
this objection, but the court assumes the defendant is taking
objection to the fact that it is unknown whether the trial
judge relied on the residual clause or the force clause when
determining whether the defendant had committed a crime of
violence. Such objection is unfounded. If the underlying
conviction satisfies the force clause, as the magistrate
judge found it did, then it is an underlying §
924(c)(3)(A) predicate and the residual clause is irrelevant.
See United States v. Winston, 850 F.3d 677, 680 (4th
Cir. 2017) (“even though the residual ...