Abrue v. United States

Background

Omar Abrue moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The Government had charged him with conspiracy to commit murder in aid of racketeering, attempted murder in aid of racketeering, and using a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924(c). Abrue pleaded guilty to all three counts. Judge Harold Baer Jr. sentenced him principally to 246 months of imprisonment.

Abrue’s § 924(c) conviction relied on the two murder-related offenses as predicate crimes of violence. He argued that the Supreme Court’s decision in Johnson and its later decision in Davis invalidated the basis for his firearm conviction. The petition was filed on June 27, 2016, and the court later ordered the Government to respond after Davis addressed the constitutionality of § 924(c)’s definition of a crime of violence.

Government’s Procedural Arguments

The Government argued that Abrue could not bring the challenge because he had not appealed his § 924(c) conviction directly. It also argued that he could not show an exception to that procedural bar, because he lacked cause and prejudice and could not establish actual innocence. The court did not resolve these arguments. Instead, it concluded that the petition failed on the merits.

Section 924(c) and Davis

Section 924(c) applies when a person uses or carries a firearm during and in relation to a crime of violence. The statute contains an “elements clause,” which covers a felony that has as an element the use, attempted use, or threatened use of physical force, and a “residual clause,” which covers offenses involving a substantial risk that physical force may be used.

The court explained that Davis held the residual clause unconstitutionally vague but did not invalidate the elements clause, also called the force clause. After Davis, a predicate offense qualifies only if it falls within the force clause.

Attempted Murder in Aid of Racketeering

The Government relied only on Abrue’s attempted-murder conviction. The court therefore focused on whether that offense remained a crime of violence and declined to decide whether conspiracy to commit murder in aid of racketeering qualified.

The court applied the “categorical approach,” which examines the minimum conduct required for conviction under the relevant offense and focuses on the offense’s elements rather than the specific facts of the defendant’s conduct. Although Abrue’s conviction arose under a federal racketeering statute, the charging document alleged that he attempted to murder Luis Claudio in violation of New York State Penal Law. The court identified New York Penal Law §§ 125.25 and 110.00 as the relevant state provisions.

The court rejected Abrue’s argument that attempted murder did not necessarily require the attempted use of violent physical force. Relying on Second Circuit decisions, including summary orders, it concluded that attempted murder under New York law is categorically a crime involving an attempted use of physical force. Because the attempted-murder conviction qualified under § 924(c)’s force clause, the court held that Abrue’s petition failed even without resolving the conspiracy issue.

Disposition

Senior United States District Judge William H. Pauley III denied Abrue’s petition. The court also stated that it would not issue a certificate of appealability because Abrue had not made a substantial showing that a constitutional right was denied. The Clerk of Court was directed to terminate all pending motions and close the case.