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Floyd v. United States

United States District Court, D. Maryland

September 27, 2019

TONNIE FLOYD Petitioner
v.
UNITED STATES OF AMERICA Respondent

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.

         Petitioner 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.[1] For the following reasons, the motion will be denied.

         Count 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.

         Count 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 part that:

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.

         Mr. 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.

         Several 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 Johnson.)

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. 2018).

         Petitioner 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 (D.Mont. ...


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