United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. United States District Judge
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.
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.
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,
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
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).
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
(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 ...