Rossetto v. United States
- Proceeding
- district
- Area
- civil
- Panel
- Dana M. Sabraw (author)
Analysis
The court considered a pro se motion by the defendant to vacate his 18 U.S.C. § 924(c) conviction, arguing that the predicate VICAR conspiracy conviction was no longer a 'crime of violence' following the Supreme Court's decision in United States v. Davis. The court granted the motion, vacated the § 924(c) conviction, and denied the motion to appoint counsel as moot.
| What the court decided | The model |
|---|---|
Motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 granted“For these reasons, the Court VACATES Defendant’s conviction on Count 2 for violation of 18 U.S.C. § 924(c).” | agree with court The court correctly applied the holding of United States v. Davis, 139 S. Ct. 2319 (2019), which struck down the residual clause of 18 U.S.C. § 924(c)(3)(B) as unconstitutionally vague. The court also correctly determined that the predicate offense (conspiracy to commit VICAR) did not qualify under the elements clause because conspiracy does not have the use of physical force as an element. The government conceded the point, making the legal conclusion sound. |
Motion to appoint counsel denied“Defendant’s motion for appointment of counsel is DENIED as moot.” | agree with court Since the primary motion was granted and the conviction vacated, the need for appointed counsel to litigate the § 2255 motion is moot. This is a standard procedural disposition. |
The order itself: sound — The order correctly identifies the legal issue (vagueness of the residual clause post-Davis) and applies the correct legal test (elements clause vs. residual clause). It relies on binding Supreme Court precedent and persuasive circuit/district court authority to support the conclusion that the predicate offense does not qualify. The government's concession further supports the result. The reasoning is complete and accurate.
Opinion
5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 UNITED STATES OF AMERICA, Case No: 3:06-cr-01435-DMS-2 9 Plaintiff, ORDER GRANTING MOTION TO 10 v. VACATE, SET ASIDE, OR CORRECT 11 LEON ROSSETTO, SENTENCE UNDER 28 U.S.C. § 2255 12 Defendant. 13 14 This case returns to the Court on Defendant Leon Rossetto’s pro se motion to vacate, 15 set aside or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set out below, 16 the motion is granted. 17 On March 11, 2008, Defendant pled guilty to one count of conspiracy to commit a 18 violent crime in aid of racketeering (“VICAR”) in violation of 18 U.S.C. §1959(a), and one 19 count of carrying a firearm during the commission of a crime of violence in violation of 18 20 U.S.C. § 924(c)(1)(A)(i). (ECF Nos. 78, 80.) On August 22, 2008, Defendant was 21 sentenced to a total of 180 months’ incarceration. (ECF Nos. 99, 102, 118.) 22 On May 22, 2018, Defendant filed the present motion to vacate his conviction for 23 violating 18 U.S.C. § 924(c), arguing his § 1959(a) conviction does not qualify as a 24 predicate “crime of violence” under § 924(c), because the “residual clause” of § 924(c)’s 25 definition of “crime of violence” is unconstitutionally vague. (ECF No. 112.) 26 27 1 The United States initially filed a response in opposition. (ECF No. 121.) While 2 Defendant’s motion was pending, the United States Supreme Court decided United States 3 v. Davis, 139 S. Ct. 2319 (2019), which held that the “residual clause” of § 924(c)(3)(B) is 4 unconstitutionally vague. Pursuant to the Court’s order, the United States filed a 5 supplemental briefing addressing the impact of Davis on Defendant’s motion. (ECF No. 6 129.) Also pending before the Court is Defendant’s motion to appoint counsel. (ECF No. 7 113.) 8 18 U.S.C. § 924(c)(1)(a)(i) prohibits any person from using or carrying a firearm 9 “during and in relation to any crime of violence.” A “crime of violence” is defined as a 10 felony offense that “(A) has as an element the use, attempted use, or threatened use of 11 physical force against the person or property of another,” or “(B) that by its nature, involves 12 a substantial risk that physical force against the person or property of another may be used 13 in the course of committing the offense.” 18 U.S.C. 924(c)(3). The Supreme Court refers 14 to the language of these subsections as the “elements clause” and the “residual clause,” 15 respectively.1 See Davis, 139 S. Ct. at 2324. 16 In Davis, the Supreme Court struck down the “residual clause” of § 924(c) as 17 unconstitutionally vague. Accordingly, as the United States concedes, a conviction under 18 § 1959(a) no longer qualifies as a crime of violence under § 924(c)(3)(B). Nor does 19 Defendant’s § 1959(a) conviction qualify as a crime of violence under the “elements clause” 20 of § 924(c), because he pled guilty to conspiracy to commit murder, an offense which does 21 not have “as an element the use, attempted use, or threatened use of physical force against 22 the person or property of another.” 18 U.S.C. § 924(c)(A); see United States v. McCollum, 23 885 F.3d 300, 309 (4th Cir. 2018) (holding conspiracy to commit VICAR murder is not 24 categorically a crime of violence); Bonilla v. United States, No. 07 CR 0097, 2020 WL 25 489573, at *3 (E.D.N.Y. Jan. 29, 2020) (“[C]onspiracy to commit murder in-aid-of 26 27 1 Courts also sometimes refer to subsection (A) as the “force clause.” 1 ||racketeering . . . 1s not categorically a crime of violence following Davis and therefor 2 |} cannot support a conviction under § 924(c).”) 3 In sum, the United States agrees Defendant’s conviction for VICAR conspiracy unde 4 1959(a) no longer qualifies as a crime of violence capable of supporting his § 924(c 5 |}conviction. Moreover, the United States no longer seeks to enforce the waiver of appea 6 |} and collateral attack contained in Defendant’s plea agreement. 7 For these reasons, the Court VACATES Defendant’s conviction on Count 2 fo 8 || violation of 18 U.S.C. § 924(c). Defendant’s motion for appointment of counsel is DENIEL 9 || as moot. 10 IT IS SO ORDERED. 11 12 || Dated: March 30, 2021 □ gf, p 13 ayn: Hon. Dana M. Sabraw, Chief Judge 14 United States District Court 15 16 17 18 19 20 21 22 23 24 25 26 27 28