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Fourth Circuit Reverses § 924(c) Conviction Because Kidnapping No Longer Qualifies as Predicate Offense and ‘Critical Record Documents’ Do Not Show Firearm Charge Was ‘Expressly Predicated Upon’ Any Other Offense

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit reversed Elliott B. Graham’s 18 U.S.C. § 924(c) conviction for “using a firearm during a crime of violence” because (1) the conviction was predicated upon a kidnapping conviction, (2) kidnapping is no longer considered a qualifying predicate crime of violence, and (3) the three “critical record documents” governing the Court’s analysis did not show Graham’s plea to the firearm charge was “expressly predicated upon” any other offense.

Over 15 years ago, Graham was charged with (1) carjacking, (2) kidnapping, (3) using a firearm during a crime of violence in violation of § 924(c), and possession of a firearm after being convicted of a felony. Graham pleaded guilty to the kidnapping and the § 924(c) charge in exchange for dismissal of the remaining charges. The U.S. District Court for the District of South Carolina accepted Graham’s guilty plea and sentenced him to 260 months in prison followed by five years of supervised release.

Ten years later, Graham filed a pro se motion to vacate his § 924(c) conviction. Although the District Court acknowledged that it is now clear “kidnapping is not a § 924(c) predicate offense” (per United States v. Walker, 934 F.3d 375 (4th Cir. 2019)), the court concluded that Graham’s § 924(c) conviction remained valid because “the factual basis for [Graham’s] guilty plea involved both carjacking and kidnapping” and “his § 924(c) conviction is related to a carjacking, which the Fourth Circuit has held is a valid § 924(c) predicate” (per United States v. Evans, 848 F.3d 242 (4th Cir. 2017)). Accordingly, the District Court denied Graham’s motion, and he timely appealed.

The Court observed federal “law allows a sentencing court to vacate a Section 924(c) conviction that was not supported by a valid predicate offense.” See United States v. Melaku, 41 F.4th 386 (4th Cir. 2022). In the present case, the parties agreed that United States v. Crawley, 2 F.4th 257 (4th Cir. 2022), governs the analysis of Graham’s appeal. In Crawley, the court upheld “the denial of relief to a defendant who pleaded guilty to a Section 924(c) violation ‘expressly based’ on both a ‘valid’ predicate and an ‘invalid’ one.” The Crawley Court reviewed the “indictment, plea agreement, and plea hearing transcript [which] all referenced a valid Section 924(c) predicate (a drug trafficking offense) and an invalid one (conspiracy to commit Hobbs Act robbery.” The Crawley Court explained that “Crawley had no reason to expect … a windfall based on later developments in the law that would invalidate one of the two predicates supporting his § 924(c) conviction.”

But in the present case, unlike Crawley, the Court pointed out that “neither the indictment nor Graham’s plea agreement ‘expressly’ mentioned any predicate offense for the Section 924(c) count.” Therefore, those documents were “unhelpful in identifying any predicate offense on which Graham’s guilty plea was “expressly based.” Crawley. The only other “critical record document” that both parties asked the Court to consider was the transcript of the plea hearing.

The Court observed that the transcript of Graham’s plea hearing includes 12 references to “kidnapping,” and when asked to summarize the plea agreement, the Government started by stating “Graham agrees to plead guilty to … kidnapping, as well as a § 924(c) violation in connection with the kidnapping.” The Court further observed that the District Court repeatedly asked Graham about his possession of a firearm during “the kidnapping,” specifically asking, “You and others kidnapped or took [the victim] into custody or took him, kidnapped him, forced him into the car in an effort to take these rims from him, is that correct?” After Graham answered, “Yes, sir,” the District Court clarified, “And you had a firearm in your possession when that was done?” The Court stated that “Graham confirmed as much – and only as much.”

Additionally, the Court stated that “when describing Graham’s offense conduct, the prosecutor specifically disclaimed any relevance of whether the car had been manufactured out of state – a fact that would have been material to any federal carjacking charge – by stating: ‘This is a kidnapping, so it doesn’t matter.’” Carjacking requires the taking of “a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce.” 18 U.S.C. § 2119. Kidnapping has no such requirement. See 18 U.S.C. § 1201(a). And at no point during the plea hearing was Graham asked whether he possessed a firearm in connection with a carjacking, the Court noted.

The Court rejected the Government’s argument that the kidnapping and the carjacking were “inextricably intertwined” and a “single event.” Section 924(c) requires a predicate “crime” and not a predicate event. § 924(c)(1)(A).

The Court also rejected the Government’s argument, based on case precedents involving jury verdicts, that the evidence supported a finding that Graham’s § 924(c) conviction was predicated on both kidnapping and carjacking. The Court explained that in the context of jury trials “there is a full record, and it makes sense to ask what the jury’s verdict ‘necessarily’ was based on or what any ‘rational juror[s]’ would have found based on the evidence before them.” United States v. Reed, 48 F.4th 1082 (9th Cir. 2022). The Court reasoned: “When a defendant pleads guilty, in contrast, there is neither an evidentiary record nor a decision by the defendant’s peers. The only basis for depriving Graham of his liberty is what he ‘admitted’ – a word this Court used eight times in Crawley – not what Graham might have been willing to admit or what the court or jury hypothetically could or would have found had the issue been before them.”

Thus, the Court concluded that Graham’s § 924(c) conviction was expressly based only on the now invalid kidnapping predicate. It stated that this result is required by “procedural fairness” and explained: “Just as the government benefits when intervening judicial decisions improve its litigating position years after the fact, it must accept when those decisions do the opposite.”

Accordingly, the Court reversed the District Court’s judgment and remanded for further proceedings consistent with its opinion. See: United States v. Graham, 67 F.4th 218 (4th Cir. 2023).   

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United States v. Graham



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