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United States v. Lecron

United States District Court, N.D. Ohio, Western Division

July 2, 2019

United States of America, Plaintiff
v.
Elizabeth R. Lecron, et al., Defendants

          ORDER

          JAMES G. CARR SR. U.S. DISTRICT JUDGE

         This is a criminal case in which the grand jury has indicted defendants Elizabeth Lecron and Vincent Armstrong on seven counts related to their alleged plan to detonate a pipe bomb at a bar in downtown Toledo, Ohio. (Doc. 36, PageID 201-02).

         Count one of the indictment charges both defendants with conspiracy to transport or receive an explosive device with intent to kill, injure, or intimidate and to maliciously damage or destroy by fire, in violation of 18 U.S.C. § 844(n). (Doc. 9, PageID 49).

         Counts two and three allege that both defendants conspired to use a destructive device and firearms, respectively, during and in relation to a crime of violence - specifically, transportation of an explosive device and maliciously damaging or destroying property by fire or explosive - in violation of 18 U.S.C. § 924(o). (Id., PageID 50).

         Count four charges Lecron with possessing a firearm in furtherance of two crimes of violence - conspiracy to transport or receive an explosive with intent to kill, injure, or intimidate, and conspiracy to maliciously damage or destroy property by fire or explosive - in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Id., PageID 51). Count five charges Armstrong with the same firearms offense in furtherance of the same crimes of violence. (Id.).

         Counts six and seven charge Armstrong only with making false statements to the FBI and transporting explosives in interstate commerce. (Id., PageID 52-53).

         Pending are the defendants' motions to dismiss counts two, three, four, and five. (Docs. 27, 34). The gravamen of the motions is that the § 924(c) predicate offenses are not in fact crimes of violence. For the following reasons, I grant the motion as to counts four and five of the indictment and hold the remainder of the motions in abeyance pending the receipt of further briefing from the parties.

         Standard of Review

          The four counts at issue each allege that Lecron and Armstrong acted “in relation to, ” “during, ” or “in furtherance of a “crime of violence” as set forth in 18 U.S.C. § 924(c).

         “Pursuant to § 924(c), ‘any person who, during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall' be subject to a mandatory minimum sentence to run consecutively to any other sentence.” U.S. v. Jackson, 918 F.3d 467, 478-79 (6th Cir. 2019) (quoting 18 U.S.C. § 924(c)).

         A “crime of violence” is a felony that either “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” or “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.” 18 U.S.C. § 924(c)(3)(A), (B).

         After the parties briefed the motions to dismiss, the Supreme Court held in Davis v. U.S., ___ S.Ct. ___, 2019 WL 2570623 (2019), that § 924(c)(3)(B) is unconstitutionally vague. For that reason, I will consider whether the predicate offenses qualify as crimes of violence under the elements clause of § 924(c)(3)(A).

         “To determine whether a conviction offense is a ‘crime of violence,' [courts] apply a categorical approach focusing on the statutory definition of the offense, rather than the manner in which the offender may have violated the statute in a particular circumstance.” U.S. v. Gooch, 850 F.3d 285, 290 (6th Cir. 2017) (internal quotation marks omitted).

         “Under the categorical approach, courts must assume that the defendant's conviction rested upon nothing more than the least of the acts criminalized, and then determine whether those acts would qualify as a crime of violence[.]” U.S. v. Camp, 903 F.3d 594, 599 (6th Cir. 2018) (internal quotation marks omitted).

         Discussion

         A. Conspiracy

         The firearms charges in counts four and five identify the predicate crimes of violence as conspiracies to transport or receive an explosive with intent to kill and maliciously damage or destroy property by fire or explosive.

         Defendants argue that a conspiracy is not a crime of violence because it requires only “an agreement to commit an offense, ” and not “necessarily . . . the use, attempted use, or threatened use of force.” (Doc. 27, PageID 168). They rely on cases from the Fourth and Fifth Circuits holding that a conspiracy (specifically a conspiracy to commit Hobbs Act robbery) is not a crime of violence under § 924(c)(3)(A). U.S. v. Simms, 914 F.3d 229, 233 (4th Cir. 2019) (en banc); U.S. v. Davis, 903 F.3d 483, 485 (5th Cir. 2018) (per curiam), aff'd in part & vacated in part on other grounds by Davis, supra, ___ S.Ct. ___, 2019 WL 2570623.

         The government responds that “the Sixth Circuit has held that conspiracies can in fact constitute ‘crimes of violence,' so as to serve as predicates for convictions under Section 924(c).”

         1. Sixth ...


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