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Fourth Circuit Reviews for Plain Error and Vacates Brandishing a Firearm Conviction Obtained Under 18 U.S.C. § 924(C)(3)

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit reviewed for plain error and vacated Donald Eugene Walker’s conviction for brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Walker pleaded guilty to kidnapping in violation of 18 U.S.C. § 1201(a) and was sentenced to 324 months in prison.

Walker also pleaded guilty to the § 924(c) charge and received an additional 84 months. Walker appealed. He argued, inter alia, that his § 924(c) conviction was contrary to Johnson v. United States, 135 S. Ct. 2551 (2015).

The Fourth Circuit reviewed for plain error because Walker raised the issue for the first time on appeal. Plain error requires Walker to show: (1) an error that, (2) was clear or obvious, (3) affected substantial rights, and (4) seriously affected the fairness, integrity, or public reputation of judicial proceedings. United States v. Marcus, 560 U.S. 258 (2010). An error is clear if, at the time of appellate consideration, the settled law of the Supreme Court or the Fourth Circuit establishes that an error has occurred. United States v. Carthorne, 726 F.3d 503 (4th Cir. 2013).

A person who uses or carries a firearm “during and in relation to any crime of violence” or who “possesses a firearm” “in furtherance of any such crime” may be convicted of both the underlying crime of violence and the use, carrying, or possession of that firearm. 18 U.S.C. § 924(c). “Crime of violence” is defined as a “felony” that “(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by 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). In Sessions v. Dimaya, 138 S. Ct. 1204 (2018), the Supreme Court invalidated 18 U.S.C. § 16(b) as unconstitutionally vague. Because § 16(b) contains language identical to § 924(c)(3)(B), the Fourth Circuit held § 924(c)(3)(B) is unconstitutionally vague. United States v. Simms, 914 F.3d 229 (4th Cir. 2019). Later, the Supreme Court likewise held § 924(c)(3)(B) was unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319 (2019).

The Fourth Circuit determined that the district court committed clear error when it found Walker violated § 924(c)(3)(B) because that section has now been declared unconstitutional. The Court determined Walker’s conviction likewise could not stand under § 924(c)(3)(A). The Court was required to use the categorical approach under that Section, looking only to the elements of the underlying crime of violence and not to the particular conduct of the defendant. Under the categorical approach, the kidnapping wasn’t a crime of violence because the elements of 18 U.S.C. § 1201(a) permit a defendant to be found guilty of kidnapping even when violence was not used. United States v. Wills, 234 F.3d 174 (4th Cir. 2000). The district court’s error affected Walker’s substantial rights as well as the fairness, integrity, and public reputation of judicial proceedings because Walker could not be found guilty of violating § 924(c) yet he had received an additional 84 months for that offense. United States v. Fuertes, 805 F.3d 485 (4th Cir. 2015). Accordingly, the Court vacated Walker’s conviction under § 924(c) and remanded for further proceedings consistent with the Court’s opinion. See: United States v. Walker, 934 F.3d 375 (4th Cir. 2019). 

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