United States District Court, N.D. Ohio, Western Division
G. CARR SR. U.S. DISTRICT JUDGE
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).
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).
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
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.).
six and seven charge Armstrong only with making false
statements to the FBI and transporting explosives in
interstate commerce. (Id., PageID 52-53).
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.
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).
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)).
“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),
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).
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
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).
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.
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.
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).”