Duncan v. USA

Filing 49

MEMORANDUM DECISION AND ORDER - IT IS HEREBY ORDERED that Petitioners § 2255 Motion to Vacate, Set Aside, or Correct Sentence (CV Dkts. 1 , 4 ) is DENIED.IT IS FURTHER ORDERED that the Certificate of Appealability is DENIED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JOSEPH EDWARD DUNCAN, III,
Case No. 2:17-cv-00091-EJL
2:07-cr-00023-EJL

Petitioner,
v.
UNITED STATES OF AMERICA,

MEMORANDUM DECISION AND
ORDER

Respondent.

INTRODUCTION
On March 22, 2019, the Court entered an order denying all but one of the claims in
Petitioner Joseph Edward Duncan, III’s Motion for Collateral Relief seeking to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255. (CV Dkt. 43.)1 The Court took
under advisement Claim Nine challenging the constitutionality of the statute charged in
Count Seven pending anticipated rulings from the Ninth Circuit and Supreme Court. After
those rulings were entered, the parties filed additional briefing on the legal issue under
advisement. (CV Dkt. 44-48.) The Court has considered the record in this case, the recent

1

In this Order, “(CR )” is used when citing to the criminal case record (2:07-cr-00023-EJL) and
“(CV )” is used to cite to the record in the civil case (2:17-cv-00091-EJL).

ORDER - 1

case law, and the parties’ briefing and finds as follows as to Claim Nine of Petitioner’s
§ 2255 Motion challenging the constitutionality of Count Seven. 2
DISCUSSION
Count Seven charged Duncan with Using a Firearm During and in Relation to a
Crime of Violence Resulting in Death in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii),
(c)(1)(B)(i), (j)(1). Specifically, Count Seven states:
On or about May 16, 2005 and between July 2, 2005, in the District of Idaho,
the defendant, JOSEPH EDWARD DUNCAN, III, did knowingly carry and
use a firearm, to wit: a Browning Arms 12-gauge short-barreled shotgun,
serial no. 751PR0681 . . . during and in relation to a crime of violence for
which he may be prosecuted in a court of the United States, that is the crimes
alleged in Counts One and Two of this Indictment which are realleged and
incorporated by reference herein, in violation of Title 18, United States Code,
Section 924(c)(1), and in the course of this violation caused the death of a
person through the use of a firearm, which killing is a murder as defined in
Title 18, United States Code, Section 1111, in that the defendant, with malice
aforethought, did unlawfully kill D.G. by shooting him with the firearm
willfully, deliberately, maliciously and with premeditation; all in violation of
Title 18, United States Code, Section 924(c)(1)(A)(ii), (c)(1)(B) and (j)(1).
(CR Dkt. 1 at 4-5.) To be guilty of the charge requires that Duncan used a firearm during
and in relation to a “crime of violence.” 18 U.S.C. § 924 (c)(1)(A)(ii). Subsection 924(c)(3)
defines a “crime of violence” to mean an offense that is a felony and –
(A) has as element the use, attempted use, or threatened use of physical force
against the person or property of another, or

2

The underlying facts and procedural background need not be recited here as they are well known
to the parties and the Court and have been stated throughout the record in this case. The Court’s
prior orders are all incorporated by reference here.

ORDER - 2

(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.
The term “crime of violence” and, the similar term “violent felony,” are used in several
statutes to denominate certain sentencing-enhancing predicate offenses. Those terms have
been the subject of several recent appellate decisions finding the so-called “residual clause”
of those statutes to be void for vagueness. See generally Plagued By Vagueness: The Effect
of Johnson v. United States and the Constitutionality of 18 U.S.C. § 924(c)(3)(B), 54 No.
4 Crim. Law Bulletin ART 3 (Summer 2018); see also Johnson v. United States, 135 S.Ct.
2551 (2015) (invalidating the residual clause of the Armed Career Criminal Act, 28 U.S.C.
§ 922(e)(2)(B)(ii) for vagueness); Sessions v. Dimaya, 138 S.Ct. 1204 (2018) (finding the
definition of “crime of violence” in the Immigration and Nationality Act, 18 U.S.C. § 16(b),
void for vagueness).
Most recently and applicable here, the Supreme Court applied the principles of
Johnson and Dimaya to conclude that the residual clause in § 924(c)(3)(B) is also
unconstitutionally vague. United States v. Davis, 139 S.Ct. 2319, 2336 (2019). Thus,
Duncan’s conviction and sentence on Count Seven in this case can stand only if there is a
“crime of violence” under the elements clause in section 924(c)(3)(A).
To determine whether a specific conviction is a “crime of violence,” the Court
employs the “categorical approach” laid out in Taylor v. United States, 495 U.S. 575 (1990)
and Descamps v. United States, 570 U.S. 254 (2013). See United States v. Begay, 934 F.3d

ORDER - 3

1033, 1038 (9th Cir. 2019). Under the categorical approach, the court does not look to the
facts underlying the conviction, but, instead, compares “the elements of the statute forming
the basis of the defendant’s conviction with the elements of a ‘crime of violence.’” Id.
(quoting Descamps, 570 U.S. at 257); see also United States v. Sahagun–Gallegos, 782
F.3d 1094, 1098 (9th Cir. 2015) (A court applying the categorical approach must
“determine whether the [offense] is categorically a ‘crime of violence’ by comparing the
elements of the [offense] with the generic federal definition”—here, the definition of
“crime of violence” set forth in section 924(c)(3).).
“The defendant’s crime cannot be a categorical ‘crime of violence’ if the conduct
proscribed by the statute of conviction is broader than the conduct encompassed by the
statutory definition of a ‘crime of violence.’” Begay, 934 F.3d at 1038. To find an offense
overbroad, there must be a “realistic probability, not a theoretical possibility,” that the
statute would be applied to conduct not encompassed by the generic federal definition.
Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193 (2007); accord United States v. McGuire,
706 F.3d 1333, 1337 (11th Cir. 2013) (applying the “realistic probability” standard to a
crime of violence determination under section 924(c)(3)). “Crimes of violence,” as defined
in § 924(c), requires purposeful conduct, i.e., an intentional use of force. Begay, 934 F.3d
at 1039.
1.

Kidnapping is Not a Crime of Violence
The federal kidnapping statute provides, in relevant part:

ORDER - 4

Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or
carries away and holds for ransom or reward or otherwise any person, except
in the case of a minor by the parent thereof . . . shall be punished by
imprisonment for any term of years or for life and, if the death of any person
results, shall be punished by death or life imprisonment.
18 U.S.C. § 1201(a).
Kidnapping, as charged in Count Two, is not a crime of violence under § 924(c)’s
elements clause. See Davis, 139 S.Ct. at 2336; Delgado-Hernandez v. Holder, 697 F.3d
1125, 1130 (9th Cir. 2012) (“The federal kidnapping statute has no force requirement”).
Under the current state of the law, generic, non-capital kidnapping resulting in death is also
not a crime of violence under § 924(c)’s elements clause. See United States v. Begay, 934
F.3d 1033, 1038-40 (9th Cir. 2019) (holding a crime of violence requires the intentional
use of force and reckless conduct is not sufficient to qualify as a crime of violence). 3
The Government maintains, however, that Count Seven is a crime of violence
because capital kidnapping resulting in death, coupled with jury’s findings of an intentional
use force, eliminate any “Begay problem” as to the requisite intent requirement. (CV Dkt.
48.) The Government argues that as part of Count Seven, Duncan admitted to and the jury
independently found that Duncan used intentional force in the commission of the crime of
capital kidnapping resulting in death and premeditated murder, both of which are crimes

3

The Government contends Begay is wrongly decided and that kidnapping resulting in death
should qualify as a crime of violence. (CV Dkt. 48.)

ORDER - 5

of violence under the elements clause of § 924(c)(3)(A). (CV Dkts. 45, 48.) 4 Duncan
disagrees, arguing the Government has not proven that kidnappings resulting in death
satisfies the elements clause of § 924(c)(3)(A) because the crime does not have as an
element the use, attempted use, or threatened use of physical force against the person of
another. (CV Dkt. 46.) Duncan maintains the kidnapping statute, 18 U.S.C. § 1201(a), does
not require physical force as an element and the language stating “if the death of any person
results” is a sentencing enhancement, not an element of the crime.
Based on the current appellate court rulings concluding § 1201(a) can be violated
without the “use, attempted use, or threatened use of physical force against the person or
property of another,” the kidnapping charges in both Counts One and Two do not qualify
as crimes of violence under § 924(c)(3)(A). The Court does not reach this conclusion
lightly, particularly given the horrific facts of this case. The Government’s argument that

4

Duncan points out this argument is contradictory to the Government’s arguments made in its
response briefs. See e.g., (CV Dkt. 34 at 110, n. 36) (“Duncan is correct that the other definition
of ‘crime of violence’ in § 924(c)(3), the elements clause, does not apply. The two predicate crimes
can be accomplished, at least in theory, without the use of force.”); (CV Dkt. 42) (advocating for
a case-specific approach to § 924(c)(3)(B) as opposed to categorical approach). The Court finds
the Government has not waived or conceded the position taken in its most recent briefing on this
issue. Notably, the Government raised the argument that Count Seven’s inclusion of first-degree
murder qualifies it as a crime of violence throughout its briefing. (CV Dkt. 34 at 119-120) (CV
Dkt. 42 at 9-10.) Moreover, the appellate courts recently published rulings regarding this legal
issue that the Government and Petitioner have both addressed in supplemental briefing. It is,
therefore, appropriate for the Court to consider the Government’s arguments applying the most
recent appellate rulings. The Court further finds there is no prejudice to Duncan in doing so
because Duncan has had the opportunity to respond in full to the Government’s arguments. (CV
Dkts. 37, 41, 46.)

ORDER - 6

Duncan’s admissions and the jury’s findings in this capital case solve the “Begay problem,”
ask the Court to do that which it is precluded from doing under the arbitrary constraints of
the categorical approach, and to look at the facts in the underlying record to determine
whether it is a crime of violence. Binding precedent, however, requires that the Court apply
the categorical approach and artificially close its eyes to Duncan’s actual conduct in
deciding whether a § 1201(a) kidnapping is a crime of violence; i.e., that it can be
committed without the use, threatened use, or attempted use of physical force.
In making that determination, the Court is likewise bound by the appellate courts’
strained findings that in the categorial approach’s artificial view, the crime of kidnapping
can be committed without using physical force. See e.g., United States v. Khamnivong, 779
Fed. Appx. 482, 484 (9th Cir. 2019) (finding that kidnapping is not a crime of violence
under the force clause of § 924(c)(1)(A)); Delgado-Hernandez, 697 F.3d at 1130 (“The
federal kidnapping statute has no force requirement.”); United States v. Gillis, 938 F.3d
1181, 1209 (11th Cir. 2019) (citing circuit cases finding § 1201(a) can be violated without
the use of physical force). The same holds true for the crime of kidnapping resulting in
death. As such, neither of the kidnapping charges in Counts One or Two are categorically
crimes of violence under § 924(c)(3)(A).
2.

First-Degree Murder is a Crime of Violence
The Government argues Count Seven charged Duncan with violating § 924(c) as

well as § 924(j) and included conduct meeting the definition of first-degree murder under

ORDER - 7

18 U.S.C. § 1111(a), which, the Government argues, is a crime of violence. In response,
Duncan asserts he was not charged with, did not plead guilty to, nor is there jurisdiction
for a charge of murder under § 1111. (CV Dkt. 46.)
The Government was not required to charge Duncan with the underlying crime of
first-degree murder, in order to charge him in Count Seven with violating § 924(j)
predicated on his having committed first-degree murder. “[A] defendant charged with
violating section 924(c)(1) must be proven to have committed the underlying crime, but
nothing in the statute or the legislative history suggests that he must be charged with and
convicted of the underlying offense.” United States v. Hunter, 887 F.2d 1001, 1003 (9th
Cir. 1989). Here, as discussed more below and in the Court’s prior orders, Duncan fully,
knowingly, voluntarily, and unequivocally admitted to the facts and elements necessary to
prove he committed first-degree murder. (CR Dkts. 188, 189, 204.)
Further, there is no violation of the Fifth Amendment or any constructive
amendment to the charge in the Indictment in this case. “The grand jury requirement of the
Fifth Amendment provides that ‘[n]o person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.’” United
States v. Mickey, 897 F.3d 1173, 1182 (9th Cir. 2018) (quoting U.S. CONST. AMEND. V).
“[T]he crime and the elements of the offense that sustain the conviction [must be] fully and
clearly set out in the indictment.” Id. (quoting United States v. Miller, 471 U.S. 130, 136
(1985)). A constructive amendment violating the Fifth Amendment occurs when “the

ORDER - 8

charging terms of the indictment are altered, either literally or in effect, by the prosecutor
or a court after the grand jury has last passed upon them.” Id. at 1182-83 (quoting United
States v. Davis, 854 F.3d 601, 603 (9th Cir. 2017). The indictment in this case fully and
clearly sets for the crimes and the elements of those crimes in each count of the Indictment,
including Count Seven. (CR Dkt. 1.) There has been no alteration in any form to the
charging terms of the Indictment in this case. Again, Duncan fully, knowingly, voluntarily,
and unequivocally admitted to the facts and elements of each charge as stated in the
Indictment. (CR Dkts. 188, 189, 204.)
The Court now turns to the question of whether the allegation of first-degree murder
in Count Seven states a crime of violence.
While the categorical approach constrains the Court to look only at the statute of
conviction to determine whether the offense is a crime of violence, where, as here, the
statute is overbroad and divisible, the Court may use the modified categorical approach to
determine which statutory phrase formed the basis for the defendant’s conviction.
Descamps, 570 U.S. at 263. Under the modified categorical approach, the Court determines
“whether the facts proven at trial or admitted by the defendant as part of his guilty plea
establish that the defendant was convicted of all the elements of the relevant federal generic
offense.” Torre-Jimenez, 771 F.3d at 1167 (quoting Sanchez-Avalos v. Holder, 693 F.3d
1011, 1014–15 (9th Cir. 2012)). For a plea, the Court looks to “the terms of the charging
document, the terms of a plea agreement or transcript of colloquy between judge and

ORDER - 9

defendant in which the factual basis for the plea was confirmed by the defendant, or to
some comparable judicial record of this information.” Shepard v. United States, 544 U.S.
13, 26 (2005).
In this case, Count Seven of the Indictment charged Duncan with violating not only
§ 924(c), but also § 924(j) which is a separate and discrete crime. See United States v.
Melgar-Cabrera, 892 F.3d 1053, 1059-60 (10th Cir. 2018) (discussing United States v.
Julian, 633 F.3d 1250, 1254-55 (11th Cir. 2011)). Section 924(j) requires a separate and
distinct finding that the defendant committed conduct meeting § 1111’s definition of
murder. That distinct finding is an element of the § 924(j) charge because it carries a
different punishment from the § 924(c) charge, namely it increases the potential penalty to
death. Section 1111, in turn, defines murder as “the unlawful killing of a human being with
malice aforethought.” 18 U.S.C. § 1111(a). Malice aforethought includes four mental
states: “(1) intent to kill; (2) intent to do serious bodily injury; (3) depraved heart (i.e.
reckless indifference); and (4) intent to commit a felony.” Begay, 934 F.3d at 1040 (quoting
United States v. Pineda-Doval, 614 F.3d 1019, 1038 (9th Cir. 2010)). “First-degree murder
requires an additional element; the killing must either be ‘willful, deliberate, malicious,
and premeditated,’ or be committed in the course of perpetrating one of the serious felonies
listed in § 1111. ‘Any other murder is murder in the second degree.’” Pineda-Doval, 614
F.3d at 1037 (9th Cir. 2010) (quoting 18 U.S.C. § 1111).

ORDER - 10

The statute, therefore, is divisible because it criminalizes multiple acts in the
alternative, thereby defining multiple crimes. Divisibility depends on whether a statute’s
“listed items are elements or means.” Mathis v. United States, 136 S.Ct. 2243, 2256 (2016).
If they are elements, the statute is divisible. Id. Statutory alternatives that carry different
punishments are elements. Id. (citing Apprendi v. New Jersey, 530 U.S. 466 (2000)). On
the other hand, if the statutory list offers only “illustrative examples, then it includes only
a crime’s means of commission.” Id. (internal quotation marks omitted). Where the statute
is divisible, the court may therefore look to the “Shepard documents” to “discover what
the prosecutor included as elements of the crime and to what elements the petitioner
pleaded guilty.” Almanza-Arenas v. Lynch, 815 F.3d 469, 479 (9th Cir. 2016).
Here, Count Seven states, in relevant part, that in the course of violating § 924(c)(1),
Duncan “cause[d] the death of a person through the use of a firearm, which killing is a
murder as defined in [18 U.S.C.] § 1111, in that [Duncan], with malice aforethought, did
unlawfully kill D.G. by shooting him with the firearm willfully, deliberately, maliciously
and with premeditation” in violation of § 924(j)(1). (CR Dkt. 1 at 4-5) (emphasis added).
Thus, Count Seven expressly charged Duncan with conduct meeting the definition of firstdegree murder which is categorically a crime of violence. 18 U.S.C. § 1111(a) (Any willful,
deliberate, malicious, and premeditated killing, is murder in the first degree); PinedaDoval, 614 F.3d at 1037. That is to say, Count Seven charged Duncan with the intentional
use of physically violent force against another. Moreover, Duncan unequivocally plead

ORDER - 11

guilty to all of the counts in the Indictment. Specifically, Duncan plead guilty to Count
Seven with full knowledge that it included, as an element, that during the course of the
crime, Duncan caused the death of D.G. through the use of a firearm, which killing was
first-degree murder as defined by § 1111 and that Duncan did so with malice aforethought
by unlawfully killing D.G. by shooting him with a firearm willfully, deliberately,
maliciously, and with premeditation. (CR Dkts. 188, 189, 204.) Count Seven is therefore
categorically a crime of violence under the most recent case law requiring the intentional
and purposeful use of force. See Begay, 934 F.3d at 1038-40. Duncan’s conviction under
Count Seven is therefore valid and Claim Nine of Petitioner’s Motion is denied.
3.

The Certificate of Appealability
Duncan cannot appeal from the denial or dismissal of his § 2255 Motion unless he

first obtains a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A
certificate of appealability will issue only when a petitioner has made “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A certificate of
appealability is warranted when “jurists of reason could disagree with the district court’s
resolution of [the petitioner’s] constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller–El v.
Cockrell, 537 U.S. 322, 327 (2003); 28 U.S.C. § 2253(c). No such a showing has been
made in this case as to Claim Nine. The facts in this case are indisputable and the
Petitioner’s admissions remove any doubt concerning the same. Justice delayed under these

ORDER - 12

circumstances would result in justice being denied. Therefore, the Court respectfully denies
the certificate of appealability. 28 U.S.C. § 2253(c)(2).

ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Petitioner’s § 2255 Motion
to Vacate, Set Aside, or Correct Sentence (CV Dkts. 1, 4) is DENIED.
IT IS FURTHER ORDERED that the Certificate of Appealability is DENIED.

November 15, 2019

ORDER - 13