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Fifth Circuit Vacates § 924 Convictions Based on Davis

by Anthony Accurso 

The U.S. Court of Appeals for the Fifth Circuit held that the defendants’ convictions under 18 U.S.C. § 924 could not stand because they likely relied on the residual clause of § 924(c) that was voided for vagueness in United States v. Davis, 139 S. Ct. 2319 (2019). 

Defendants Deloyd Jones, Byron Jones, and Sidney Patterson were convicted of several racketeering, drug, and firearm offenses as part of their membership in the New Orleans gang, “Ride or Die.” These include several counts under 18 U.S.C. § 924. While their second appeal was pending, the U.S. Supreme Court in Davis declared the residual clause of § 924(c) void for vagueness. As applied to the defendants, if their convictions under § 924 were likely based on the residual clause of § 924(c), such convictions cannot stand. The Fifth Circuit determined this was the case.

The Court noted that jury instructions allowed a finding of guilty on the § 924 counts for either the (still valid) drug counts or the racketeering counts (no longer a valid basis under Davis).

“Structural error does not occur when a jury rendering a general verdict was instructed on alternative theories of guilty and may have relied on an invalid one.” Hedgpeth v. Pulido, 555 U.S. 57 (2008). Because the error was not structural, the Court applied plain error review. Plain error review entails a four-prong analysis: (1) there must be an error; (2) the error must be “clear or obvious, rather than subject to reasonable dispute”; (3) “the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it ‘affected the outcome of the district court proceedings’”; and (4) the court must decide in its discretion to correct the error because it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129 (2009). 

The Government conceded prongs one, two, and four because the decision in Davis demonstrates the error was clear since Davis was issued while this appeal was pending, and failing to correct such an error “would be manifestly unfair.” The Court also noted that “the Davis error here increased Appellant’s sentences significantly and even resulted in additional life sentences” for two of them, and thus, the fourth prong was satisfied.   

The decision ultimately turned on the third prong, i.e., whether the error affected the substantial rights of the defendants. Under United States v. Lewis, 907 F.3d 891 (5th Cir. 2018), if there is a reasonable probability the convictions relied on the invalid crime of violence predicate, this would affect their substantial rights.

Reviewing the record in the case, the Court determined the racketeering conduct encompassed broader conduct than the drug conspiracy, including conspiracy to commit murder, the use of stolen vehicles, aggravated battery, and protecting the power, territory, and profits of the enterprise. Also during the trial, the Government made comments, during opening and closing arguments, which linked the guns to activities unrelated to the drug conspiracy. Because the drugs conspiracy was a mere element of the larger criminal enterprise, the Court concluded it unlikely that the jury would have convicted the defendants on all the gun charges absent the jury instructions invalidated by Davis. The Court held that the convictions under § 924 for Deloyd Jones, Byron Jones, and Sidney Patterson constituted plain error.

Accordingly, the Court vacated the convictions and remanded for retrial. See: United States v. Jones, 935 F.3d 266 (5th Cir. 2019). 

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