Erbo v. United States

Background

Jose Erbo filed a successive motion under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence, seeking to set aside three convictions under 18 U.S.C. § 924(c). That statute prohibits using or carrying a firearm during and in relation to a “crime of violence” or drug-trafficking crime. The Court of Appeals had authorized Erbo to file the motion based on the Supreme Court’s 2019 decision in United States v. Davis.

The three challenged convictions arose from Erbo’s 2002 jury trial. Each § 924(c) count identified both a substantive murder and a conspiracy to commit murder as the relevant violent crime. The jury found Erbo guilty of the three § 924(c) counts and of the corresponding substantive murders. Erbo argued that the convictions could not stand because the jury’s general verdict did not reveal whether it relied on the murder or the murder-conspiracy predicate.

Legal standard and analysis

Section 924(c) has two definitions of “crime of violence.” The “force clause” covers a felony that has as an element the use, attempted use, or threatened use of physical force against a person or property. The “risk-of-force clause” covers a felony that, by its nature, involves a substantial risk that physical force may be used. In Davis, the Supreme Court held the risk-of-force clause unconstitutionally vague and invalidated it. After Davis, a predicate crime must qualify under the force clause to support a § 924(c) conviction.

The court agreed that a conspiracy to commit a violent crime ordinarily does not qualify under the force clause because conspiracy is an incomplete offense that does not necessarily result in a physical act. But the court concluded that Davis did not resolve Erbo’s motion because each challenged conviction also rested on a substantive murder predicate.

The court reviewed authorities stating that a valid predicate can sustain a § 924(c) conviction when the conviction is based on both valid and invalid predicates. It concluded that the substantive murder predicates were sufficient here because the jury found beyond a reasonable doubt that Erbo committed the corresponding murders. The court further held that murder in aid of racketeering qualifies as a crime of violence under the force clause because intentionally causing death necessarily involves physical force.

Disposition

Judge Loretta A. Preska denied Erbo’s motion for vacatur based on Davis. The court held that the substantive murder charges supplied valid predicates for all three § 924(c) convictions, even though the murder-conspiracy predicates could not independently serve that role. The court also found the motion timely, declined to issue a certificate of appealability because Erbo had not made a substantial showing of a constitutional violation, and directed the clerk to mail the order to Erbo and close the motion.