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Ward v. United States

United States District Court, N.D. Indiana, South Bend Division

March 1, 2017

JARVIS WARD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          OPINION AND ORDER

          Robert L. Miller, Jr. United States District Judge

         Jarvis Ward pleaded guilty to one count of racketeering, 18 U.S.C. § 1962(c), and aiding and abetting the brandishing of a firearm in connection with a crime of violence or drug trafficking crime, 18 U.S.C. §§ 2, 924(c)(1)(A)(ii). This matter is before the court on his second or successive motion to vacate. 28 U.S.C. § 2255. For the reasons that follow, the court denies his motion.

         I. Background

         Mr. Ward admitted to the following facts. He was a member of the Cash Out Boyz gang, which was involved in a pattern of criminal activity that included drug trafficking and violent crimes. In an act referred to as the “drug rip-off, ” Mr. Ward and Javon Thomas, another gang member, robbed a drug dealer of a pound of marijuana after Mr. Thomas hit the dealer on the head with a revolver. Mr. Ward and Mr. Thomas split up the marijuana and sold it to others. Mr. Ward was also involved in selling marijuana on at least fifteen occasions. For example, he sold several ounces of marijuana out of the house of another gang member.

         Based on these facts, Mr. Ward pleaded guilty to Count 1 of the indictment: associating with an enterprise, the Cash Out Boyz, affecting interstate commerce, to conduct or participate in the conduct of the enterprise's affairs through a pattern of racketeering activity. 18 U.S.C. § 1962(c). This count explains that the members of the Cash Out Boyz “engaged in the distribution of controlled substances and in acts of violence, including acts involving murder, attempted murder, assaults with deadly weapons, robbery, and home invasions.” “Racketeering Act Nine” alleged that through his participation in the “drug rip-off, ” Mr. Ward committed Hobbs Act robbery, 18 U.S.C. § 1951; Indiana robbery, Ind. Code 35-42-5-1; and possession of marijuana with intent to distribute, 21 U.S.C. § 841(a)(1). Mr. Ward also pleaded guilty to Count 5, aiding and abetting the brandishing of a firearm “during and in relation to a crime of violence and drug trafficking crime.” 18 U.S.C. §§ 2, 924(c)(1)(A)(ii).

         This court sentenced Mr. Ward to 168 months incarceration for the racketeering charge and 84 months for the brandishing charge, to be served consecutively for a total of 252 months. Regarding the brandishing charge, the sentencing memorandum explains that Mr. Ward pleaded guilty to “brandishing a firearm during a crime of violence, ” and the judgment only refers to brandishing a firearm during a crime of violence. The brandishing count carried a mandatory minimum sentence of 84 months, which the sentencing guidelines also recommended. § 924(c)(1)(A)(ii); U.S.S.G. § 2K2.4(b). When adding in the racketeering conviction, the total guideline recommendation was 252 to 294 months. The court sentenced Mr. Ward on the low end of the guideline range.

         On June 26, 2015, the Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson concerned the Armed Career Criminal Act, which imposes a fifteen-year mandatory minimum sentence for a defendant who committed three prior “violent felonies.” The statute defines “violent felony” as:

any crime punishable by imprisonment for a term exceeding one year . . . that -
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [known as the “elements clause”]; or
(ii) is burglary, arson, or extortion, involves use of explosives [known as the “enumerated offenses clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [known as the “residual clause”];

18 U.S.C. § 924(e)(2)(B) (emphasis added). Johnson held that the residual clause is unconstitutionally vague under the Due Process Clause, U.S. Const. amend. V. Johnson announced a substantive rule retroactively applicable to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         Mr. Ward wasn't charged with violating the ACCA, but § 924(c)(1)(A)(ii), which criminalizes brandishing a firearm “during and in relation to any crime of violence or drug trafficking crime.” “Crime of violence” under § 924(c) is defined with similar language to that in the ACCA as an “offense that is a felony and-

(A) has as an element the use, attempted use or threatened use of physical force against the person or property of another [the “elements clause”], or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense ...

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