USA v. HODGE JR.,

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
UNITED STATES OF AMERICA and the
PEOPLE OF THE VIRGIN ISLANDS,
Plaintiff,
v.
RICHARD ANTONIO HODGE, JR.,
Defendant.
)
)
)
)
) Criminal No. 2014-01
)
)
)
)
)
)
)
)
ATTORNEYS:
Nelson Luis Jones, Esq., AUSA
U.S. Attorney's Office
St. Thomas, VI
Ronald Sharpe, Esq., USA
United States Attorney’s Office
St. Thomas, VI
For the United States of America,
Omodare B. Jupiter, FPD
Gabriel J. Villegas, AFPD
Office of the Federal Public Defender
St. Thomas, VI
For the defendant, Richard Antonio Hodge, Jr.
MEMORANDUM OPINION1
GÓMEZ, J.
Before the Court is the objection of Richard Hodge to his
sentencing on both of his 18 U.S.C. § 924(c)(1)(A) convictions.
1 The Court previously addressed Richard Hodge’s objections to the Court’s
sentence at his June 24, 2015, sentencing. This memorandum opinion outlines
the reasons for the Court’s ruling.
Case: 3:14-cr-00001-RAM-RM Document #: 100 Filed: 03/08/16 Page 1 of 12

USA v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 2
I. FACTUAL AND PROCEDURAL HISTORY
On December 3, 2013, Asim Powell (“Powell”), an employee of
Ranger American Armored Services, went to pick up monetary
deposits from a K-Mart department store located in Lockhart
Gardens Shopping Center (“Lockhart Gardens”) on St. Thomas.
Powell left K-Mart, with a black bag containing monetary
deposits. Upon exiting K-Mart, Powell saw his supervisor Clement
Bogoneau (“Bogoneau”) standing in front of Furniture Inn, a
furniture store located next to K-Mart. Powell proceeded to
speak with Bogoneau.
An armed gunman with his face partly covered then
approached the two gentlemen and shot Powell in the back. Powell
fell to the ground. When the gunman sought to take the bag with
the monetary deposits, Powell resisted and was shot twice more.
The gunman also shot Bogoneau in the groin.
The gunman then fled. Bogoneau and a Virgin Islands police
officer, Latoya Schneider (“Schneider”), pursued the gunman.
Bogoneau and Schneider halted their pursuit when the gunman ran
into Oswald Harris Court, a public housing project, which is
located across the street from Lockhart Gardens.
When officers arrived at Oswald Harris Court, they found
Richard Hodge (“Hodge”), shirtless, hiding in the bushes located
at the east end of the area. Hodge was subsequently arrested.
Case: 3:14-cr-00001-RAM-RM Document #: 100 Filed: 03/08/16 Page 2 of 12

USA v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 3
Officers recovered a black ski mask, t-shirt, and jacket near
the area where Hodge was found.
Hodge was then charged in a fifteen-count information with
crimes related to this incident. The Court dismissed Count Ten
before trial. The matter then proceeded to a jury trial on June
9, 2014. At trial, Hodge was found guilty of the following
counts of the information: Count One, interfering with commerce
by robbery in violation of 18 U.S.C. § 1951; Count Two,
discharge of a firearm during a robbery in violation of 18
U.S.C. § 924(c)(1)(A); Count Three, discharge of a firearm
during the attempted murder of Powell in violation of 18 U.S.C.
§ 924(c)(1)(A); Count Six, using an unlicensed firearm during
the attempted murder of Powell in violation of 14 V.I.C. §
223(a); Count Seven, using an unlicensed firearm during the
first degree assault of Powell in violation of 14 V.I.C. §
223(a); Count Eight, using an unlicensed firearm during a first-
degree robbery in violation of 14 V.I.C. § 223(a); Count Nine,
first degree assault by shooting Powell in violation of 14
V.I.C. § 295(1); Count Eleven, first degree robbery in violation
of 14 V.I.C. §§ 1861 and 1862(1); Count Fourteen, first degree
assault by shooting Bogoneau in violation of 14 V.I.C. § 295(1);
and Count Fifteen, reckless endangerment in the first degree in
violation of 14 V.I.C. § 625(a).
Case: 3:14-cr-00001-RAM-RM Document #: 100 Filed: 03/08/16 Page 3 of 12

USA v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 4
At sentencing, Hodge argued that he could only be sentenced
on one of his two 18 U.S.C. § 924(c)(1)(A) convictions. For the
reasons stated herein, the Court sentenced Hodge on both of his
18 U.S.C. § 924(c)(1)(A) convictions.
II. ANALYSIS
Hodge argues that he may only be sentenced on one of his 18
U.S.C. § 924(c)(1)(A) convictions because the rule of lenity
applies to the unit of prosecution when multiple violations of
18 U.S.C. § 924(c)(1)(A) are charged based on a single course of
conduct.
As a preliminary matter, the Court will review the Third
Circuit’s case law on the proper unit of prosecution for
violations of 18 U.S.C. § 924(c)(1)(A). The Third Circuit has
held that “it is unquestionable that crimes occurring as part of
the same underlying occurrence may constitute separate predicate
offenses if properly charged as separate crimes. It follows that
each may be a separate predicate for a § 924(c)(1) conviction .
. . .” United States v. Casiano, 113 F.3d 420, 426 (3d Cir.
1997).
In that case, one of the defendants, Alfredo DeJesus
(“DeJesus”) hit the victim in the head with the butt of a gun
and then forced the victim into the back of the victim’s own
van. Id. at 423. The defendants then drove off in the victim’s
Case: 3:14-cr-00001-RAM-RM Document #: 100 Filed: 03/08/16 Page 4 of 12

USA v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 5
van, with the victim in the back of the van. Id. DeJesus and
another defendant, Jose Casiano (“Casiano”):
were charged with one count of conspiracy to commit
carjacking and kidnapping in violation of 18 U.S.C.
§ 371, one count of carjacking in violation of 18
U.S.C. § 2119, one count of kidnapping in violation
of 18 U.S.C. § 1201(a)(1), and two counts of using
a firearm in relation to a crime of violence in
violation of 18 U.S.C. § 924(c)(1). Casiano entered
a guilty plea, pursuant to a plea agreement, to all
counts on October 23, 1995. DeJesus entered an open
guilty plea to all counts on December 22, 1995.
The district court sentenced Casiano to 188 months
imprisonment on the conspiracy, carjacking and
kidnapping counts to run concurrently. In addition,
the court sentenced him to an additional 60 months
for the use of a firearm in relation to the
carjacking pursuant to 18 U.S.C. § 924(c)(1), to run
consecutively to the substantive counts. The court
then imposed an additional sentence of 240 months
imprisonment for the use of a firearm in relation to
the kidnapping and, pursuant to the same statute,
imposed that sentence to run consecutively. The
total imprisonment for Casiano thus was 488 months.
DeJesus was sentenced to 70 months imprisonment on
the conspiracy, carjacking and kidnapping counts to
run concurrently to each other, and an additional 60
months for the first violation of 18 U.S.C. §
924(c)(1), to run consecutively, and 240 months for
the second violation of 18 U.S.C. § 924(c)(1), to
run consecutively.
Id. at 423-24.
On appeal,
Casiano and DeJesus argue[d] that because the
criminal course of conduct from the carjacking (the
first predicate offense) to the kidnapping (the
second predicate offense) was continuous and
involved only one victim, the district court erred
as a matter of law in applying § 924(c)(1) to use of
Case: 3:14-cr-00001-RAM-RM Document #: 100 Filed: 03/08/16 Page 5 of 12

USA v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 6
a handgun in connection with the kidnapping as “a
second or subsequent conviction.”2
Id. at 424. The Third Circuit rejected this challenge, noting
that
in United States v. Torres, 862 F.2d 1025 (3d
Cir.1988), this court sustained convictions on two
§ 924(c)(1) counts that arose out of the same episode
on the same day. Torres sought to protect his
confederates who were being arrested for
distribution of cocaine on the street by brandishing
a firearm at the arresting officer. He was convicted
of the predicate offenses of conspiracy to
distribute cocaine and assaulting a federal officer,
as well as two § 924(c)(1) offenses, i.e., use of a
firearm during a drug trafficking crime (count 4)
and use of a firearm in connection with an assault
on a federal officer (count 5). We held that “the
section 924(c)(1) convictions were proper under both
counts 4 and 5.” Id. at 1032. This alone stands as
circuit precedent compelling rejection of the
argument [that the district court erred in treating
the second use of a handgun as a second or subsequent
conviction], as not only did the two § 924(c)(1)
convictions in Torres arise out of the same criminal
episode, they arose out of the same act . . . .
United States v. Casiano, 113 F.3d 420, 426 (3d Cir. 1997)
The Third Circuit has since had further opportunity to
consider the unit of prosecution for 18 U.S.C. 924(c)(1). See
United States v. Diaz, 592 F.3d 467 (3d Cir. 2010). In United
States v. Diaz, the defendant was charged with, and convicted
of, “possession of a firearm in furtherance of drug trafficking
2 18 U.S.C. § 924(c)(1)(C) states, in relevant part, that “[i]n the case of a
second or subsequent conviction under this subsection, the person shall . . .
be sentenced to a term of imprisonment of not less than 25 years . . . .”
Case: 3:14-cr-00001-RAM-RM Document #: 100 Filed: 03/08/16 Page 6 of 12

USA v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 7
on or about March 29, 2006, in violation of 18 U.S.C. § 924(c)
(Count I); possession with intent to distribute heroin in or
about November 1, 2005, through March 29, 2006, in violation of
21 U.S.C. § 841(a)(1) (Count II); and an additional possession
of a firearm in furtherance of drug trafficking in or about
January 2006 and before March 29, 2006, in violation of 18
U.S.C. 924(c) (Count III)” Id. at 468 (internal quotations and
citations omitted). The defendant was sentenced to consecutive
terms of imprisonment on his § 924(c) counts of conviction. On
appeal, the Third Circuit noted that in Casiano, “the Government
. . . charged more predicate crimes than § 924(c) violations.
113 F.3d at 426.” Id. at 470 n.3. After distinguishing United
States v. Casiano, the Third Circuit held that because a single
predicate offense was charged, the plaintiff could only be
exposed to a single § 924(c) unit of prosecution. See id. at
471-75.
The decision in United States v. Diaz is inapposite here.
Diaz is limited to cases where the Government charges fewer
predicate crimes than § 924(c) violations. Accord United States
v. McNeill, No. CRIM. 06-373, 2015 WL 1411938, at *5 (W.D. Pa.
Mar. 26, 2015)(“Diaz, however, involved the question of whether
the defendant committed more than one § 924(c) violation when
Case: 3:14-cr-00001-RAM-RM Document #: 100 Filed: 03/08/16 Page 7 of 12

USA v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 8
only one predicate drug trafficking crime had been proven.”).
That is not the case here.
Here, Hodge was convicted on Count Two for the discharge of
a firearm during a robbery in violation of 18 U.S.C. §
924(c)(1)(A) and on Count Three for discharge of a firearm
during the attempted murder of Powell in violation of 18 U.S.C.
§ 924(c)(1)(A). As in Casiano, each of the 18 U.S.C. §
924(c)(1)(A) convictions was tied to a different predicate
offense. The reasoning in Casiano applies with equal force
here. The jury found Hodge guilty of multiple violations of 18
U.S.C. § 924(c), each of which was tied to a separate and
distinct predicate offense. Consistent with the analysis in
Casiano and consistent with the text of 18 U.S.C. § 924(c), the
Court holds that the unit of prosecution charged in the
information was appropriate.
The Court must now consider whether it may only sentence
Hodge on one of his 18 U.S.C. § 924(c)(1)(A) convictions even
though he was properly charged and convicted of two violations
of 18 U.S.C. § 924(c)(1)(A). To that end, a brief review of the
relevant 18 U.S.C. § 924(c) legal landscape is in order.
In 1988, in United States v. Torres, 862 F.2d 1025 (3d Cir.
1988), the Government stipulated that although two § 924(c)(1)
convictions were proper, only one sentence could be imposed.
Case: 3:14-cr-00001-RAM-RM Document #: 100 Filed: 03/08/16 Page 8 of 12

USA v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 9
Torres, 862 F.2d at 1032. The Third Circuit accepted that
stipulation and recommended the imposition of a general
sentence. Id. The Third Circuit did not provide any explanation
for accepting the stipulation.
Subsequent to the Third Circuit’s decision in United States
v. Torres, the Supreme Court decided Deal v. United States, 508
U.S. 129, 113 S. Ct. 1993, 124 L. Ed. 2d 44 (1993). In that
case, the Supreme Court held that a defendant convicted of
multiple § 924(c) offenses that were charged in the same
indictment was subject to the relevant sentencing enhancements
for second and subsequent convictions. See Deal v. United
States, 508 U.S. 129, 130-37 (1993).
After the Supreme Court decided United States v. Deal, the
Third Circuit had an opportunity to comment on its ruling in
United States v. Torres. See Casiano, 113 F.3d at 426. In United
States v. Casiano, the Third Circuit recognized that
[i]t is true, as defendants note, that in Torres the
government stipulated that only one sentence could
be imposed in that case where there were two
violations of § 924(c)(1). See id. However, the
Torres decision came down before Deal and we
accepted the government's concession without
comment. It is therefore not controlling here, and
to the extent it may be interpreted as contrary to
Deal, it is superseded by Deal. See United States v.
Luskin, 926 F.2d 372, 378 (4th Cir.1991).
United States v. Casiano, 113 F.3d 420, 426 (3d Cir. 1997). The
Third Circuit then upheld the sentencing enhancement for a
Case: 3:14-cr-00001-RAM-RM Document #: 100 Filed: 03/08/16 Page 9 of 12

USA v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 10
second or subsequent conviction for using a firearm in relation
to a crime of violence. See id.
In expressing its doubts concerning the continued vitality
of United States v. Torres, the court in Casiano cited to United
States v. Luskin, 926 F.2d 372 (4th Cir. 1991). In that case,
the Fourth Circuit discussed United States v. Torres, stating
that
that case is an aberration. In that case, the
defendant had been convicted on two section 924(c)
crimes-one for using a firearm during a drug
trafficking crime, and the second for using a
firearm in assaulting a federal officer. The
defendant was given consecutive sentences on these
convictions. On appeal, the government conceded that
only one firearm offense had taken place, and agreed
that the sentences should run concurrently. The
Torres court, without comment, honored this
concession and ordered that the sentences on these
two convictions run concurrently. We do not know why
the government made this concession in Torres, for
it was apparently unnecessary. There were two
distinct predicate section 924(c) offenses:
conspiracy to distribute cocaine and assaulting a
federal officer. The section 924(c) offenses were
not violative of the Double Jeopardy Clause because
each required proof of a different predicate crime.
The Torres court did not make any comment on the law
of section 924(c) and, thus, it did not create any
analysis to be followed. Indeed, given the
government's concession, any comment would have been
dicta. Since we can see no basis for the outcome in
Torres, we decline to follow it. Accordingly, we
affirm the sentencing of Luskin to three consecutive
section 924(c) terms of imprisonment.
United States v. Luskin, 926 F.2d 372, 374-78 (4th Cir. 1991).
Case: 3:14-cr-00001-RAM-RM Document #: 100 Filed: 03/08/16 Page 10 of 12

USA v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 11
Moreover, after Casiano, the Third Circuit has repeatedly
characterized its holding in that case as standing for the
proposition that where multiple § 924(c)(1) convictions arise
out of the same episode or act, sentencing is appropriate on
each of those § 924(c)(1) counts with the proper sentencing
enhancements. See United States v. Moten, No. 13-3801, 2015 WL
2179797, at *7 (3d Cir. May 11, 2015)(“In accordance with the
Supreme Court's decision in Deal, we have similarly held that
consecutive sentences are permitted, regardless of whether the
section 924(c) convictions arise out of the same criminal
episode or act, United States v. Casiano, 113 F.3d 420, 426 (3d
Cir.1997), or whether they are charged in a single indictment,
United States v. Coates, 178 F.3d 681, 683 & n. 2 (3d
Cir.1999).”); United States v. Couch, 291 F.3d 251, 256 (3d Cir.
2002)(“In United States v. Casiano, 113 F.3d 420, 426 (3d
Cir.1997), this Court held that it matters not whether multiple
§ 924(c)(1) counts arise out of the same criminal episode or out
of the same act, or whether they are charged in a single
indictment. Pursuant to Deal, this Court followed the directive
of § 924(c)(1)(C), which focuses only on whether there was a
“second or subsequent conviction.” Casiano, 113 F.3d at 425-26;
See United States v. Coates, 178 F.3d 681, 683 (3d Cir.1999)
Case: 3:14-cr-00001-RAM-RM Document #: 100 Filed: 03/08/16 Page 11 of 12

USA v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 12
(enhancement permitted where second or subsequent weapons
conviction was charged in same indictment).”)
Accordingly, the Court holds that even if Hodge’s actions
are viewed as one act or one course of conduct, he must be
sentenced to consecutive sentences--with the relevant sentencing
enhancements--on his multiple § 924(c)(1)(A) convictions.3
S\_____________________
Curtis V. Gómez
District Judge
3 At sentencing, the Government attempted to concede that Hodge could only be
sentenced on one of his 18 U.S.C. § 924(c) convictions. Regardless, parties
cannot stipulate to the law. Mazer v. Lipschutz, 327 F.2d 42, 57 (3d Cir.
1963)(“Counsel can stipulate fact, but ordinarily cannot stipulate or concede
law.”) Indeed, if the Court were bound by such stipulations, it would create
a system where, at sentencing, the Government could arbitrarily determine
whether defendants were sentenced on one or more of their convictions. Such
an outcome could undermine parity.
Case: 3:14-cr-00001-RAM-RM Document #: 100 Filed: 03/08/16 Page 12 of 12