United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.
Tonnie Floyd was charged in six counts of the third
superseding indictment with (count 1) conspiracy to interfere
with interstate commerce by robbery (October 26, 2012),
(count 2) interference with interstate commerce by robbery,
(count 3) brandishing and discharging a firearm during and in
relation to a crime of violence charged in counts one and
two, (count 4) carjacking, (count 5) brandishing and
discharging a firearm during and in relation to a crime of
violence charged in count four, and (count 6) interstate
transportation of stolen vehicle. He pleaded guilty to counts
2, 3, and 4; counts 1, 5, and 6 were dismissed. He now
contends that his conviction on count 3 must be vacated, and
he should be resentenced on count 2 and 4. For the following
reasons, the motion will be denied.
Three reads as follows:
On or about October 26, 2012, in the District of Maryland,
the defendants, TONNIE FLOYD, MARCELLUS RAMONE FREEMAN,
a/k/a/ Derrick Relando Pitts, and ANTHONY TERRELL CANNON, did
knowingly, intentionally and unlawfully use, carry, brandish,
and discharge a firearm during and in relation to a crime of
violence for which they may be prosecuted in a court of the
United States, to wit: conspiracy to obstruct, delay, and
affect commerce by robbery, and obstructing, delaying, and
affecting commerce by robbery, in violation of 18 U.S.C.
§ 1951(a), as set forth in Counts One and Two of this
Third Superseding Indictment, which are incorporated here.
Two reads as follows:
On or about October 26, 2012, in the District of Maryland,
the defendants, TONNIE FLOYD, MARCELLUS RAMONE FREEMAN, a/k/a
Derrick Relando Pitts, and ANTHONY TERRELL CANNON, did
knowingly and unlawfully obstruct, delay and affect and
attempt to obstruct, delay and affect commerce by robbery, as
those terms are defined in Title 18, United States Code,
Section 1951, in that the defendants did unlawfully take and
obtain personal property, including approximately $3, 911 in
United States currency, from the person and presence of a
Garda employee, against their will by means of actual and
threatened force, violence, and fear of injury, immediate and
future, to the Garda employee.
The statement of facts in support of the plea specified in
On October 26, 2012, perpetrators including FLOYD and
co-defendants obtained and were in possession of a Jeep
Cherokee that had been stolen on the same date. Perpetrators
including FLOYD and co-defendants traveled in the Jeep
Cherokee and followed a Garda armored transport vehicle to
the Cricket store . . . The perpetrators, including FLOYD and
co-defendants, were in possession of firearms to be used
during the planned robbery. A Garda employee
(“Victim-1”) exited the armored truck, went into
the Cricket store and picked up a bag containing $3, 911 in
U.S. currency. As Victim-1 was going back to the armored
truck, he was confronted by two perpetrators with firearms.
Victim-1 dropped the money bag and at least one perpetrator
discharged a firearm in an attempt to shoot Victim 1. Gunfire
was returned from Victim-1. One of the perpetrators picked up
the money bag and ran back to the stolen Jeep that was parked
nearby. As the perpetrators, including FLOYD and
co-defendants, drove away, Victim-1 continued to fire his
handgun at the Jeep, with shots striking a tire and the back
window. FLOYD was wounded in the posterior left shoulder
during the gunfire.
(ECF No. 130-1, at 1.) Because of recent appellate decisions
in the wake of Johnson v. United States, 135 S.Ct.
2551 (2015), the conspiracy to commit a Hobbs Act robbery
charged in count one cannot be a predicate crime of violence
for a 924(c) conviction, while the Hobbs Act robbery charged
in count two still qualifies.
Floyd contends that it cannot be determined categorically
that his conviction on count three was not based on count
one, and, as a result, that conviction must be vacated. The
government disagrees, and argues that the 924(c) conviction
was based on both underlying crimes and thus, because one of
them still qualifies as a crime of violence, the 924(c)
conviction need not be disturbed.
district courts in the Fourth Circuit have rejected claims
like those made by Mr. Floyd. For example, in United
States v. Taylor, 2019 WL 4018340 *5 (E.D.Va.
August 26, 2019), Judge Lauck concluded that:
Taylor’s conviction remains valid after
Johnson and its progeny because it was predicated on
attempting to aid and abet Hobbs Act robbery charged in Count
Six. See United States v. Doyle, No. 2:18cr177, 2019
WL 3225705, at *3-4 (E.D.Va. July 17, 2019)(finding §
924(c) conviction valid when based on both conspiracy to
commit Hobbs Act robbery and Hobbs Act robbery); cf.
United States v. Hare, 820 F.3d 93, 105-06
(4th Cir. 2016)(explaining that “the court
need not reach the merits of this argument . . .
[because]” a § 924(c) conviction predicated on
both conspiracy to commit Hobbs Act robbery and in
furtherance of a drug trafficking crime is not affected by
See also United States v. Porcher, 2019 WL 4014732
*6 (D.S.C. August 26, 2019). Although the Fourth Circuit has
not yet spoken on this precise issue, other appellate courts
have. See In re Navarro, 931 F.3d 1298, 1302-04
(11th Cir. 2019); United States v.
Ventura, 742 F.App’x 575, 578 (2d Cir.
attempts to avoid this result by insisting that it is not
appropriate to try to discern whether his 924(c) conviction
was premised on one, the other, or both of the alleged
predicate offenses, citing United States v. Vann,
660 F.3d 771 (4th Cir. 2011, and United States
v. Chapman, 666 F.3d 220 (4th Cir. 2012). He
also cites to out of circuit cases, United States v.
Horse Looking, 828 F.3d 744 (8th Cir. 2016);
United States v. Kennedy, 881 F.3d 14
(1st Cir. 2018), and In re Gomez, 830
F.3d 1225 (11thCir. 2016); and a trial court
decision, United States v. Lettiere, 2018 WL 3429927