USA v. Cruz

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
║
JAMES CRUZ, 	║
║ 	1:16-cv-00079
Petitioner, 	║ 	1:15-cr-00021
║
v. 	║
║
UNITED STATES OF AMERICA, 	║
║
Respondent. 	║
_______________________________________________ _ 	║
TO: 	James Cruz, 09657-094, Pro se
FCI Williamsburg
Federal Correctional Institution
P.O. Box 340
Salters, SC 29590
David White, Esq., AUSA
REPORT AND RECOMMENDATION
THIS MATTER is before the Court upon the Order (ECF No. 28)1 of Chief Judge
Wilma A. Lewis in Criminal No. 15-00021 referring Petitioner James Cruz’s pro se Motion
under 28 U.S.C. § 22552 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (ECF No. 25) and the Government’s Motion to Dismiss Defendant’s Motion to
Vacate (ECF No. 27) to the undersigned for a report and recommendation. For the reasons
that follow, the undersigned recommends that Petitioner Cruz’s motion be denied, that the
government’s motion be granted, and that a certificate of appealability be granted.
1 All ECF document numbers are as recorded in 1:15-cr-00021.
2 All citations to the United States Code are to the electronic version that appears in Lexis.
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Cruz v. United States
1:16-cv-00079; 1:15-cr-00021
Report and Recommendation
Page 2
I. Background
On July 28, 2015, James Cruz (Cruz) pleaded guilty to one count of using a firearm
during a crime of violence, a violation of 18 U.S.C. § 924(c), with a minimum sentence of
seven years pursuant to § 924(c)(1)(A)(ii). On November 25, 2015, he was sentenced to
serve 84 months. In accordance with the terms of his plea agreement, he did not appeal.
On November 21, 2016, Cruz timely filed the instant § 2255 motion in which he
moves the court for relief under the United States Supreme Court's decision in Johnson v.
United States, 135 S. Ct. 2551 (2015). See also Welch v. United States, 136 S. Ct. 1257, 1265
(2016) (holding that Johnson applies to cases already final when it was issued). In Johnson,
the United States Supreme Court invalidated the residual clause of the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), on the basis that the language was
unconstitutionally vague.
Here, Cruz asks the court to invalidate the residual clause, also known as the risk-of-
force clause, at § 924(c)(3)(B), on the basis that the phrase, “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,” is unconstitutionally vague. The ACCA residual
clause invalidated by Johnson reads: “otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Cruz argues that
the § 924 language “by its nature” like the ACCA clause language “presents a serious
potential risk” puts the court in the position of having to subjectively imagine a defendant’s
conduct rather than objectively compare statutory elements.
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Cruz v. United States
1:16-cv-00079; 1:15-cr-00021
Report and Recommendation
Page 3
The Third Circuit has not made a definitive statement as to the post-Johnson status
of § 924(c)(3)(B). But, the Second, Fifth, Sixth, Eighth, and Eleventh Circuits have held that
Johnson neither applies to nor invalidates § 924(c)(3)(B). See United States v. Hill, 832 F.3d
135, 146 (2d Cir. 2016) (“the Supreme Court's explanation for its conclusion in Johnson II
renders that case inapplicable to the risk-of-force clause”); United States v. Jones, 854 F.3d
737, 740 (5th Cir. 2017) cert. denied Jones v. United States, 138 S. Ct. 242 (Oct. 2, 2017) (“the
definition of "crime of violence" under § 924(c)(3)(B) is not unconstitutionally vague”);
United States v. Henry, 2018 U.S. App. LEXIS 1880 at *8 (6th Cir. 2018) (“Section
924(c)(3)(B) remains constitutional under circuit law.”); United States v. Prickett, 839 F.3d
697, 700 (8th Cir. 2016), petition for cert. filed (U.S. Dec. 28, 2016) (“Johnson does not
render § 924(c)(3)(B) unconstitutionally vague”); Ovalles v. United States, 861 F.3d 1257,
1267 (11th Cir. 2017) (“Because Johnson's void-for-vagueness ruling does not extend to the
"risk-of-force" clause in § 924(c)(3)(B), that clause remains valid.”). But see, United States v.
Jackson, 865 F.3d 946, 956 (7th Cir. 2017) (holding, under stare decisis principles, that Ҥ
924(c)(3)(B) is unconstitutionally vague” and, “in so doing, we recognize that with the
exception of the Ninth Circuit in Dimaya, most circuits to have considered the issue since
have declined to extend Johnson's holding to invalidate [ ] § 924(c)(3)(B).”).
Even absent guidance from the Third Circuit regarding the nexus of Johnson and §
924(c)(3)(B), Cruz’s adjudicated plea, and the sentence imposed pursuant to his guilty plea,
are valid for two reasons: first, because brandishing a firearm was charged and adjudicated
contemporaneously with the carjacking charge and second, because even if § 924(c)(3)(B)
is void for vagueness, carjacking is a crime of violence for the purposes of § 924(c)(3)(A).
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Cruz v. United States
1:16-cv-00079; 1:15-cr-00021
Report and Recommendation
Page 4
II. Crimes tried contemporaneously
The Third Circuit has held that the categorical approach need not be applied when
the facts underlying an instant offense "have either been found by [a] jury or admitted by
the defendant in a plea."3 United States v. Robinson, 844 F.3d 137, 143 (3d Cir. 2016)
(“analyzing a § 924(c) predicate offense in a vacuum is unwarranted when the convictions
of contemporaneous offenses, read together, necessarily support the determination that
the predicate offense was committed with the "use, attempted use, or threatened use of
physical force against the person or property of another"). See also United States v. Young,
705 Fed. Appx. 94, 95 (3d Cir. 2017) accord United States v. Kennedy, 2017 U.S. App. LEXIS
25473, *14-15 (3d Cir. 2017).
In his plea, Cruz admitted the underlying facts of the instant offense:
Defendant acknowledges that the Government can prove the following
essential elements of Count Two specifically that:
- On February 21, 2015 in St. Croix, District of the Virgin Islands
1) Defendant knowingly used or carried a firearm;
2) The using or carrying of said firearm occurred during and in relation to a
crime of violence, that is Carjacking;
3) The said firearm was brandished; and
3 To determine whether a predicate offense, such as carjacking, is a crime of violence a court employs either
the categorical approach or the modified categorical approach. The categorical approach focuses solely on
whether the elements of the crime of conviction sufficiently match the elements of the generic, or commonly
known, crime, while ignoring the particular facts of the case. Mathis v. United States, 136 S. Ct. 2243 (2016).
The modified categorical approach is used when a statute provides for more than one way to commit an
element of the crime. Mathis, 136 S. Ct. at 2249 (“enumerates various factual means of committing a single
element”). This approach “allows courts to examine certain documents (such as charging papers and jury
instructions) to determine under which set of alternative elements the defendant was convicted.” United
States v. Mathis, 786 F.3d 1068, 1072 (8th Cir. May 12, 2015) (citing Descamps v. United States, 133 S. Ct. 2276,
2284 (2013)). The statutory language in 18 U.S.C. § 2119, “by force and violence or by intimidation” has
troubled courts in determining whether the carjacking statute is indivisible or divisible. In other words, is the
statute composed of one way to commit the crime, “by force and violence or by intimidation” or, is the statute
composed of two ways to commit the crime, carjacking “by force and violence” and carjacking “by
intimidation”? However, regardless of which approach is used to analyze the statute, courts consistently find
that carjacking is a crime of violence under the force clause of 924(c).
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Cruz v. United States
1:16-cv-00079; 1:15-cr-00021
Report and Recommendation
Page 5
4) The said crime of violence, Carjacking, could be prosecuted in a court of
the United States;
c. Defendant is pleading guilty because Defendant is in fact guilty of
the charges contained in Count Two. In pleading guilty to this offense,
Defendant acknowledges that should the case go to trial, the government
could present evidence to support this charge beyond a reasonable doubt as
follows:
On February 21, 2015 at the St. Croix Educational Complex in St. Croix
in the District of the Virgin Islands, [the victims] had been stopped in [the
victim’s] vehicle, a 2006 white Chevrolet pick-up truck (that had been
shipped in interstate commerce) eating pizza. Defendant and an accomplice
approached the couple with Defendant pointing a firearm at the couple and
ordering both of them onto the ground. Defendant and the accomplice then
drove off with the truck. They abandoned the truck a short time later and fled
from law enforcement. They were both apprehended shortly by police
officers. No firearm was recovered.
The victims identified Defendant and the accomplice as the persons
who robbed them. Defendant admitted to participating in stealing the car,
but denied that he was armed with a firearm. The accomplice and two
victims indicated that Defendant was armed with a firearm. The two victims
indicated that Defendant pointed the firearm at them.
Plea Agreement (ECF No. 9) at 2-3.4
Cruz’s plea agreement makes clear that the “actual or threatened force, or violence,
or fear of injury” in his crime of carjacking “sprang from the barrel of gun." Robinson, 844
F.3d at 144. This carjacking was thus a crime of violence.
4 Cruz’s plea agreement shows that his predicate offense, carjacking, is a crime of violence. The plea
agreement shows that elements satisfy both §§ 924(c)(3)(A) and (B). To wit: Pointing a gun at someone to
take their car “has as an element . . . the threatened use of physical force against the person or property of
another"—satisfying A. And, pointing a gun at someone to take their car “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”—satisfying B.
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Cruz v. United States
1:16-cv-00079; 1:15-cr-00021
Report and Recommendation
Page 6
III. Carjacking is a crime of violence
It seems difficult to deny that carjacking, "by its nature, involves a substantial risk
that physical force against the person or property of another may be used." 18 U.S.C. §
924(c)(3)(B). However, for the sake of argument, the Court will assume that we don’t know
how the instant carjacking was carried-out and, that § 924(c)(3)(B) is unconstitutionally
vague for the reasons explained in Johnson. Even with these assumptions, Cruz’s
adjudication and sentence will be upheld if the "crime of violence" underlying his plea of
guilty for brandishing a firearm "ha[d] as an element the use, attempted use, or threatened
use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A).
The “crime of violence” underlying Cruz’s adjudication was carjacking. The
carjacking statute, 18 U.S.C. § 2119, requires the United States to prove the defendant used
"force and violence or intimidation" to take a motor vehicle and, at the moment of the
taking, intended “to seriously harm or kill the driver if necessary to steal the car.” Holloway
v. United States, 526 U.S. 1, 11-12 (1999).
Under the carjacking statute, any intimidation, whether it be by aiming a gun, by
standing in a way that emphasizes the size and strength of the carjacker, or by saying,
“that’s a nice car—would you like to be able to continue using it?” could suffice to prove the
offense, provided it is the means by which a defendant "takes" a motor vehicle "from the
person or presence of another." 18 U.S.C. § 2119. Intimidation facilitates a taking when it is
perceived as a threat to use physical force.5 A victim's perception of a threat does not
5 “To take, or attempt to take by intimidation means willfully to take, or attempt to take, by putting in fear of
bodily harm.” Black’s Law Dictionary, 6th Ed. (emphasis added).
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Cruz v. United States
1:16-cv-00079; 1:15-cr-00021
Report and Recommendation
Page 7
always mean that the defendant made a threat, but the carjacking statute applies when the
defendant "takes" a motor vehicle "by force and violence or by intimidation." 18 U.S.C. §
2119 (emphases added). In other words, the statute requires proof of goal-driven behavior
by the defendant, be it by force or violence or by intimidation. If a carjacker’s intimidation
could be accomplished by a threat to inflict economic or reputational injury, then a
carjacker might violate § 2119 by means that exclude physical force. The Court is not aware
of any case in which carjacking by intimidation is defined that broadly.
The Third Circuit has not yet considered the question of whether carjacking is a
crime of violence under the force clause of § 924(c)(3). However, other circuits have held,
before and since Johnson, that carjacking is a crime of violence under § 924(c)(3)(A). See
United States v. Mohammed, 27 F.3d 815, 819 (2nd Cir. 1994) (pre-Johnson, but relies on
force clause definition: “It is clear that a violation of section 2119, the carjacking statute, is
a crime of violence within the meaning of section 924(c) [which reads] a ‘crime of violence’
includes any felony that ‘has as an element the use, attempted use, or threatened use of
physical force against the person or property of another’”); United States v. Evans, 848 F.3d
242, 247 (4th Cir. 2017) (“We are not aware of any case in which a court has interpreted
the term "intimidation" in the carjacking statute as meaning anything other than a threat of
violent force.”); United States v. Jones, 854 F.3d 737, 740 (5th Cir. 2017) (finding carjacking
is a crime of violence: “Our own precedent, although in the bank robbery context, leads us
to conclude that a crime that has as an element a taking ‘by force and violence or by
intimidation’ is a ‘crime of violence’ under § 924(c)(3)(A).”); Broadway v. United States,
2016 U.S. App. LEXIS 13975 at *2 (7th Cir. 2016) (citing Dawkins v. United States, 809 F.3d
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Cruz v. United States
1:16-cv-00079; 1:15-cr-00021
Report and Recommendation
Page 8
953, 954 (7th Cir. 2016)) (“carjacking remains a crime of violence after Johnson because it
has as an element the use or threatened use of force”); United States v. Mathijssen, 406 F.3d
496, 499 (8th Cir. 2005) (pre-Johnson, relies on force-clause definition: “the federal offense
of carjacking, involving the taking of a vehicle ‘from the person or presence of another by
force and violence or by intimidation,’ 18 U.S.C. § 2119, ‘is a crime of violence’ within the
meaning of the term in 18 U.S.C. § 924. . . . ‘the use, attempted use, or threatened use of
physical force against the person of another’"); In re Smith, 829 F.3d 1276 (11th Cir. 2016)
(“an element requiring that one take or attempt to take by force and violence or by
intimidation, which is what the federal carjacking statute does, satisfies the force clause of
§ 924(c), which requires the use, attempted use, or threatened use of physical force”).
It seems clear that under § 2119, regardless of whether the defendant takes a
vehicle by force and violence or by intimidation, the crime of carjacking necessarily has as
an element, the use, attempted use, or threatened use of physical force against the person
or property of another. And, the Court is not aware of any holding to the contrary. Whether
committed "by force and violence" or merely "by intimidation," to find a defendant guilty of
carjacking the United States must prove, as an element, the use, attempted use, or
threatened use of physical force. Therefore, carjacking meets the force clause of 18 U.S.C. §
924(c)(3)(A).
IV. Conclusion
Based upon the foregoing, IT IS HEREBY RECOMMENDED that Petitioner James
Cruz’s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person
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Cruz v. United States
1:16-cv-00079; 1:15-cr-00021
Report and Recommendation
Page 9
in Federal Custody (ECF No. 25) be DENIED without an evidentiary hearing.6 It is further
RECOMMENDED that the Government’s Motion to Dismiss (ECF No. 27) be GRANTED.
Reasonable jurists could disagree on the three issues presented here: first, whether
carjacking constitutes a "crime of violence" under Robinson, second, whether carjacking as
defined by 18 U.S.C. § 2119 meets the force clause of 18 U.S.C. § 924(c)(3)(A), and third,
whether the residual clause, § 924(c)(3)(B), is unconstitutionally vague under Johnson. It is
therefore recommended that a certificate of appealability be GRANTED.7
Any objections to this Report and Recommendation must be filed in writing within
fourteen (14) days of receipt of this notice. Failure to file objections within the specified
time shall bar the aggrieved party from attacking such Report and Recommendation before
the assigned District Court Judge. 28 U.S.C. § 636(b)(1); LRCi 72.3.
ENTER:
Dated: April 16, 2018 	/s/ George W. Cannon, Jr.
GEORGE W. CANNON, JR.
MAGISTRATE JUDGE
6 The question of whether to order an evidentiary hearing when considering a motion to vacate a sentence
under § 2255 “is committed to the sound discretion of the district court.” Government of Virgin Islands v.
Forte, 865 F.2d 59, 62 (3d Cir.1989).
7 "The district court must issue or deny a certificate of appealability (COA) when it enters a final order
adverse to the applicant." Rule 11(a), Rules Governing § 2255 Proceedings. A COA should issue as to those
claims on which the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. §
2253(c)(2). The standard is satisfied if "jurists of reason could disagree with the district court's resolution of
[the] constitutional claims" or "conclude the issues presented are adequate to deserve encouragement to
proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
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