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Fourth Circuit: RICO Conspiracy Isn’t ‘Crime of Violence’ for § 924(c) Purposes

by Doug Ankney

The U.S. Court of Appeals for the Fourth Circuit held that a Racketeer Influenced and Corrupt Organizations Act (“RICO”) conspiracy in violation of 18 U.S.C. § 1962(d) is not categorically a “crime of violence” under 18 U.S.C. § 924(c)(3)(A).

Antonio Simmons, Nathaniel Mitchell, and Malek Lassiter (collectively, “Defendants”) were members of the Nine Trey Gangsters. The Defendants committed numerous murders, attempted murders, and robberies to further their individual reputations as gang members as well as further the interests of the Nine Trey Gangsters.

The Defendants were charged in a 38-count indictment. Of relevance here, Count One alleged the Defendants conspired to violate the RICO statute. Following Count One was a separate “Notice of Special Sentencing Factors,” which alleged that Simmons had murdered two named victims and Mitchell had murdered four named victims—all in violation of Virginia Code § 18.2-32. Count 30 alleged that the Defendants violated § 924(c) when they knowingly possessed, brandished, and discharged a firearm during the “aggravated” RICO conspiracy alleged in Count One.

After being convicted of all counts submitted to the jury, the Defendants moved to set aside the verdict on Count 30, arguing that the RICO conspiracy in Count One is not a crime of violence. The U.S. District Court for the Eastern District of Virginia granted the motion, and the Government appealed.

The Fourth Circuit observed “[p]ursuant to 18 U.S.C. § 924(c)(1)(A), it is a crime to use, carry, or possess a firearm ‘during and in relation to any crime of violence.’” A “crime of violence” is defined as any crime that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” § 924(c)(3)(A). To determine whether a charged offense is a crime of violence, courts apply the “categorical approach” or, in a narrow range of cases, the “modified categorical approach.” Deschamps v. United States, 570 U.S. 254 (2013). The objective is not to determine whether the defendant’s actual conduct could support a conviction for a crime of violence but to determine whether the defendant was in fact convicted of a crime that qualifies as a crime of violence. Id. Thus, courts focus on the elements of the offense, not the specific characteristics of the defendant’s behavior.

The categorical approach applies to “indivisible” statutes that set out a single set of elements defining the crime and requires courts to determine whether the elements of the crime require the use, attempted use, or threatened use of force. United States v. Bryant, 949 F.3d 168 (4th Cir. 2020). Alternatively, the modified categorical approach applies to “divisible” statutes that list potential offense elements in the alternative, so such statutes provide for “multiple, alternative versions of the crime.” Id.

There are only three essential elements necessary to prove a violation of § 1962(d): (1) an enterprise affecting interstate commerce existed, (2) each defendant knowingly and intentionally agreed with another person to conduct or participate in the affairs of the enterprise, and (3) each defendant knowingly and willfully agreed that he or some other member of the conspiracy would commit at least two racketeering activities. United States v. Mouzone, 687 F.3d 207 (4th Cir. 2012). “Racketeering activity” includes “any act or threat involving murder” or a wide range of other state law crimes “chargeable under State law and punishable by imprisonment for more than one year” as well as numerous enumerated federal crimes. 18 U.S.C. § 1961(1).

The Court noted that every “circuit to consider whether RICO conspiracy is a ‘crime of violence’ has held, under the categorical approach, that it is not.” See United States v. Green, 981 F.3d 945 (11th Cir. 2020); United States v. Jones, 935 F.3d 266 (5th Cir. 2019); United States v. Davis, 785 F. App’x 358 (9th Cir. 2019). The Fourth Circuit agreed with those circuits because a conspiracy to violate the RICO statute is complete when the agreement is reached, not when each predicate racketeering act is completed. United States v. Gutierrez, 963 F.3d 320 (4th Cir. 2020). And reaching an agreement “does not invariably require the actual, attempted, or threatened use of physical force.” United States v. Simms, 914 F.3d 229 (4th Cir. 2019).

The Government argued that because it had to prove the murders alleged in the “Notice of Special Sentencing Factors” occurred, the Court was required to use the modified categorical approach. This approach would require the Court to examine the elements of the Virginia murder statute § 18.2-32. The Court rejected that argument because the special sentencing factors only served to increase the maximum penalty upon conviction of violating the RICO conspiracy statute. 18 U.S.C. § 1962(d); cf. § 1963(a). That is, proof of the elements of murder to satisfy § 1963(a) was not required to obtain a conviction under § 1962(d), according to the Court.

The Court held that “both generic and aggravated RICO conspiracies are not ‘crime[s] of violence’ under 18 U.S.C. § 924(c)(3)(A).”

Accordingly, the Court affirmed the district court’s vacatur of the convictions as to Count 30. See: United States v. Simmons, 2021 U.S. App. LEXIS 26399 (4th Cir. 2021). 

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Related legal cases

United States v. Simmons

United States v. Green

United States v. Simmons

United States v. Jones

U.S. v. Davis

UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

QUARTAVIOUS DAVIS,
Defendant-Appellant.

No. 12-12928


785 F.3d 498; 2015 U.S. App. LEXIS 7385; 25 Fla. L. Weekly Fed. C 1161; 62 Comm. Reg. (P & F) 909


May 5, 2015, Decided

PRIOR HISTORY: [**1] Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:10-cr-20896-JAL-2.
United States v. Davis, 754 F.3d 1205, 2014 U.S. App. LEXIS 10854 (11th Cir. Fla., 2014)


COUNSEL: For United States of America, Plaintiff - Appellee: Amit Agarwal, Roy K. Altman, Kevin Quencer, Wifredo A. Ferrer, Amanda Perwin, Kathleen Mary Salyer, Anne Ruth Schultz, U.S. Attorney's Office, Miami, FL.

For Quartavious Davis, Defendant - Appellant: Anne Margaret Hayes, Law Office of Anne M. Hayes, Cary, NC; Jacqueline Shapiro, Jacqueline E. Shapiro, Esq., Miami, FL; David Oscar Markus, Markus & Markus, PLLC, Miami, FL.

For Aclu of Florida, Amicus Curiae: Benjamin Stevenson, ACLU of Florida, Pensacola, FL; Nathan Freed Wessler, American Civil Liberties Union of New York State (NYCLU), New York, NY; Maria Kayanan, ACLU Foundation of Florida, Inc., Miami, FL.

For Electronic Frontier Foundation, Amicus Curiae: Hanni Meena Fakhoury, Jennifer Lynch, Electronic Frontier Foundation, San Francisco, CA.

For American Civil Liberties Union, American Civil Liberties Union of Florida, Center For Democracy & Technology, Amicus Curiae: Nathan Freed Wessler, American Civil Liberties Union of New York State (NYCLU), New York, NY.

For National Association of Criminal Defense Lawyers, Amicus [**2] Curiae: Ricardo Bascuas, University of Miami School of Law, Coral Gables, FL.

0For Reporters Committee For Freedom of The Press, Amicus Curiae: Hannah Bloch-Wehba, Student Press Law Center, Arlington, VA.

For At&T Mobility, LLC: Peter Douglas Keisler, Richard D. Klingler, Sidley Austin, LLP, Washington, DC. [**3]

JUDGES: Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges. WILLIAM PRYOR, Circuit Judge, concurring. JORDAN , Circuit Judge, concurring, in which WILSON, Circuit Judge, joins. ROSENBAUM, Circuit Judge, concurring. MARTIN, Circuit Judge, dissenting, in which JILL PRYOR, Circuit Judge, joins.


OPINION


[*500] HULL, Circuit Judge:

I. BACKGROUND

Appellant Quartavius Davis1 was convicted by a jury on several counts of Hobbs Act robbery, 18 U.S.C. § 1951(b)(1), (3), conspiracy, id. § 1951(a), and knowing possession of a firearm in furtherance of a crime of violence, id. §§ 924(c)(1)(A)(ii), 2. The district court entered judgment on the verdict, sentencing Davis to consecutive terms of imprisonment totaling 1,941 months. In this appeal, we are called on to decide whether the court order authorized by the Stored Communications Act, id. § 2703(d), compelling the production of a third-party telephone [**4] company's business records containing historical cell tower location information, violated Davis's Fourth Amendment rights and was thus unconstitutional. We hold it did not and was not.

FOOTNOTES

1 The Presentence Investigation Report notes that "Quartavius" is the correct spelling of appellant's first name, despite the spelling in the caption.


Therefore, the district court did not err in denying Davis's motion to suppress and we affirm Davis's convictions. We reinstate the panel opinion, United States v. Davis, 754 F.3d 1205 (11th Cir.), reh'g en banc granted, opinion vacated, 573 Fed. Appx. 925 (11th Cir. 2014), with respect to all issues except those addressed in Parts I and II, 754 F.3d at 1210-18, which are now decided by the en banc court.2

FOOTNOTES

2 Davis's advisory guidelines range was 57 to 71 months' imprisonment for his Hobbs Act robberies. However, each of his seven § 924(c) convictions required consecutive sentences. 18 U.S.C. § 924(c)(1)(D)(ii). The district court sentenced Davis to concurrent terms of 57 months' imprisonment on counts 1, 2, 4, 6, 8, 10, 13, 15, and 16, plus a consecutive term of 84 months on count 3, plus consecutive terms of 300 months' imprisonment on counts 5, 7, 9, 11, 14, and 17.

The panel opinion affirmed Davis's convictions but vacated the application of the guidelines sentencing increase for "brandishing" of a firearm. Davis, 754 F.3d at 1220-21, 1223. To be clear, that [**5] disposition stands.


A. Seven Armed Robberies in a Two-Month Period

Quartavius Davis committed seven separate armed robberies in a two-month period. From the beginning of August 2010 to the beginning of October 2010, Davis and accomplices, bearing an array of firearms, terrorized a wide range of South Florida businesses, including a pizzeria, a gas station, a drugstore, an auto parts store, a beauty salon, a fast food restaurant, and a jewelry store.

On February 18, 2011, a federal grand jury returned a seventeen-count indictment against Davis and five codefendants. Davis was named in sixteen of the seventeen counts. The indictment charged violations of the Anti-Racketeering Act, 18 U.S.C. § 1951 (Hobbs Act), and conspiracy to violate the Hobbs Act. The indictment specifically charged Davis with conspiracy to engage in Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Counts 1, 15); seven Hobbs Act armed robberies, in violation of 18 U.S.C. §§ 1951(a), 2 (Counts 2, 4, 6, 8, 10, 13, 16); and knowingly using, carrying, and possessing a firearm in furtherance [*501] of a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2 (Counts 3, 5, 7, 9, 11, 14, 17).

All of Davis's codefendants pled guilty to various counts. Davis alone went to trial. The jury convicted Davis [**6] on all charged counts.

At trial, the prosecution offered evidence of two conspiracies to commit Hobbs Act robbery and evidence that Davis took part in each conspiracy and each robbery. The prosecution further presented evidence that the conspirators committed such robberies. One member of each conspiracy testified for the government. Codefendant Willie Smith ("Smith") testified as to the first conspiracy, encompassing six robberies at commercial establishments, including a Little Caesar's restaurant, an Amerika Gas Station, a Walgreens drug store, an Advance Auto Parts store, a Universal Beauty Salon, and a Wendy's restaurant. Codefendant Michael Martin ("Martin") testified as to the second conspiracy, encompassing the robbery of a Mayors Jewelry store. Smith and Martin testified that Davis was involved in each robbery, where they wore masks, carried guns, and stole items such as cash, cigarettes, and watches.

Separately, an eyewitness, Edwin Negron, testified regarding Davis's conduct at the Universal Beauty Salon and the adjacent martial arts studio. He testified that Davis pointed a gun at his head, pushed both a 77-year-old woman and Negron's wife to the ground, and took several [**7] items from Negron and others. Another eyewitness, Antonio Brooks, testified that Brooks confronted Davis and his accomplices outside the Wendy's after that robbery. Brooks testified that Davis fired a gun at Brooks, and that Brooks returned fire towards the getaway car.

Beyond the accomplice and eyewitness testimony, the government produced additional evidence. Surveillance videos showed a man matching Davis's description participating in the robberies at Walgreens, Advance Auto Parts, Wendy's, and Mayors Jewelry. Smith and Martin identified Davis on the videos. DNA shown to be Davis's was recovered from the getaway car used to flee the scene of the Universal Beauty Salon robbery and the Mayors Jewelry store robbery.

In addition, the prosecution introduced telephone records obtained from MetroPCS for the 67-day period from August 1, 2010, through October 6, 2010, the time period spanning the first and last of the seven armed robberies.3 The toll records show the telephone numbers for each of Davis's calls and the number of the cell tower that connected each call. A MetroPCS witness identified his company's cell tower glossary, which lists the physical addresses, including longitude and [**8] latitude, of MetroPCS's cell towers. A police witness then located on a map the precise addresses (1) of the robberies and (2) of the cell towers connecting Davis's calls around the time of six of the seven robberies. While there was some distance between them, the cell tower sites were in the general vicinity of the robbery sites.

FOOTNOTES

3 The first robbery took place on August 7, 2010, and the final robbery took place on October 1, 2010.


The location of the cell user, though, is not precise. The testimony tells us (1) the cell tower used will typically be the cell tower closest to the user, (2) the cell tower has a circular coverage radius of varying sizes, and (3) although the tower sector number indicates a general direction (North, South, etc.) of the user from the tower, the user can be anywhere in that sector. [*502] Despite this lack of precision as to where Davis's cell phone was located, the cell tower evidence did give the government a basis for arguing calls to and from Davis's cell phone were connected through cell tower locations that were near the robbery locations, and thus Davis necessarily was near the robberies too.

This appeal concerns the introduction of MetroPCS's toll records and [**9] glossary as evidence against Davis at trial. We thus review in more detail how the government acquired MetroPCS's records, the types of data in the records, and the witnesses' testimony about the records.

B. Court Order Regarding MetroPCS Business Records

After Davis's arrest, the government acquired MetroPCS's business records by court order. In February 2011, the government applied to a federal magistrate judge for a court order directing various phone companies to disclose stored telephone communications records for four subject telephone numbers that included a number ending in 5642 (the "5642 number"). The application requested production of stored "telephone subscriber records" and "phone toll records," including the "corresponding geographic location data (cell site)," for the 5642 number. The government requested only records "for the period from August 1, 2010 through October 6, 2010." The government sought clearly-delineated records that were both historical and tailored to the crimes under investigation.

The government did so following the explicit design of the governing statute, the Stored Communications Act ("SCA"), 18 U.S.C. § 2701 et seq. Section 2703 of the SCA provides that a federal or state governmental [**10] entity may require a telephone service provider to disclose "a record . . . pertaining to a subscriber to or a customer of such service (not including the contents of communications)" if "a court of competent jurisdiction" finds "specific and articulable facts showing that there are reasonable grounds to believe" that the records sought "are relevant and material to an ongoing criminal investigation." Id. § 2703(c)(1)(A), (B), (d). The court order under subsection (d) does not require the government to show probable cause.

No one disputes that the government's § 2703 application to the magistrate judge contained "specific and articulable facts" showing "reasonable grounds" to believe MetroPCS's business records—pertaining to Davis's 5642 cell phone number—were "relevant and material" to the government's investigation. The government's § 2703 application provided a detailed summary of the evidence implicating Davis in the seven robberies, including post-Miranda statements from two accomplices and the DNA evidence found in two getaway cars. Undisputedly, a sufficient showing was made to satisfy the SCA's statutory requirements.

The magistrate judge's order granted the § 2703 application. The court order required MetroPCS, the third-party [**11] cellular telephone service provider, to produce "all telephone toll records and geographic location data (cell site)" for the 5642 number during the period August 1, 2010 through October 6, 2010.

MetroPCS complied. For this two-month time period, MetroPCS produced its stored telephone records for number 5642 showing these five types of data: (1) telephone numbers of calls made by and to Davis's cell phone; (2) whether the call was outgoing or incoming; (3) the date, time, and duration of the call; (4) the number assigned to the cell tower that wirelessly connected the calls from and to Davis; and (5) the sector number associated with that tower. For ease of reference, [*503] the fourth and fifth items are collectively called "historical cell tower location information."

Importantly though, MetroPCS's business records did not show (1) the contents of any call; (2) the contents of any cell phone; (3) any data at all for text messages sent or received; or (4) any cell tower location information for when the cell phone was turned on but not being used to make or receive a call. The government did not seek, nor did it obtain, any GPS or real-time (also known as "prospective") location information. [**12]

Before trial, Davis moved to suppress MetroPCS's business records for number 5642. Although the government obtained them through a statutorily-prescribed judicial order, Davis argued the evidence should be suppressed because the § 2703(d) production of MetroPCS's records constituted a search under the Fourth Amendment and thus required probable cause and a search warrant. The district court denied the motion.4

FOOTNOTES

4 Davis did not present any evidence in support of his Fourth Amendment claim, either at the suppression hearing or at trial.


C. Evidence at Trial

During the jury trial, the government introduced the MetroPCS records for the 5642 number, which was registered to "Lil Wayne."5 The government also introduced evidence tying Davis to the 5642 phone number. One of Davis's codefendants testified that Davis used the 5642 number from August 2010 to October 2010. And a codefendant's cell phone, which was entered into evidence, listed the 5642 number under Davis's nickname, "Quat," in the phone's contact list.6

FOOTNOTES

5 MetroPCS had not required the subscriber Davis to give his true name. Instead, MetroPCS sells phones with monthly plans—averaging $40 a month—paid up front. When that plan expires, the subscriber pays another monthly payment up front [**13] or the plan is cancelled.

6 The government also obtained MetroPCS records for three other cell phone numbers used by Davis's co-conspirators, which were registered under the alias names of "Nicole Baker," "Shawn Jay," and "Dope Boi Dime." The issue before us involves only Davis's cell phone number, the 5642 number registered to "Lil Wayne." In this en banc appeal, Davis did not raise arguments about the other cell phone numbers.


Michael Bosillo, a custodian of records from MetroPCS, identified and testified about the business records regarding number 5642. He testified that MetroPCS's toll records, described above, are created and maintained in the regular course of its business.

As to cell tower location, Bosillo explained that, when a cellular phone user makes a call, the user's cell phone sends a signal to a nearby cell tower, which is typically but not always the closest tower to the phone. Two people driving together in the same car might be using different cell towers at the same time. Each cell phone tower has a circular coverage radius, and the "coverage pie" for each tower is further divided into either three or six parts, called sectors.

Bosillo testified that a cell tower would [**14] generally have a coverage radius of about one to one-and-a-half miles and that an individual cell phone user could "be anywhere" in the specified sector of a given cell tower's range. Bosillo also testified that the density of cell towers in an urban area like Miami would make the coverage of any given tower smaller, but he never said how much smaller.7

FOOTNOTES

7 Davis and various amici argue that some cellular telephone companies have now increased their network coverage by augmenting their cell tower network with low-power small cells, or "femtocells

 

 

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