Virginia Lawyers Weekly VA Lawyers Weekly
Where the defendant pleaded guilty to kidnapping and using a firearm during a crime of violence more than 15 years ago, but the Supreme Court later ruled that kidnapping is not a valid § 924(c) predicate offense, the district court erred by denying his motion to vacate his conviction. Although the district court concluded that the § 924(c) conviction was related to carjacking, the record did not support that conclusion.
Background
More than 15 years ago, Elliott Graham pleaded guilty to kidnapping and using a firearm during a crime of violence. Just over a decade later, Graham filed a handwritten pro se motion to vacate his § 924(c) conviction based on intervening authority.
The district court denied Graham’s motion. The court acknowledged it is now clear “kidnapping is not a § 924(c) predicate offense.” But the court concluded Graham’s § 924(c) conviction remained valid because “the factual basis for [Graham’s] guilty plea involved both carjacking and kidnapping” and “his § 924(c) conviction is related to a carjacking, which the Fourth Circuit has held is a valid § 924(c) predicate.”
Analysis
Neither the indictment nor Graham’s plea agreement “expressly” mentioned any predicate offense for the § 924(c) count. Standing alone, that is not a problem because the government need not “specify a specific § 924(c) predicate offense in the § 924(c) charge in the indictment,” nor “separately charge or convict the defendant[] of the § 924(c) predicate offense.” But the absence of that information from the indictment or plea agreement here means those documents are unhelpful in identifying any predicate offenses on which Graham’s guilty plea was “expressly based.”
For that, the court must turn to the plea transcript, the only other “critical record document[]” either side asks the court to consider. And that transcript makes clear — over and over — that Graham’s guilty plea on the § 924(c) offense was “expressly based” on one and only one predicate: kidnapping.
The 20-page transcript of Graham’s plea hearing contains 12 references to “kidnapping.” Upon being asked “for a summary of the plea agreement,” the first thing the government said was “Graham agrees to plead guilty to … kidnapping, as well as a 924(c) violation in connection with the kidnapping.” The district court also repeatedly asked Graham about his possession of a firearm during “the kidnapping.”
In addition, when describing Graham’s offense conduct, the prosecutor specifically disclaimed any relevance of whether the car had been manufactured out of state — a fact that would have been material to any federal carjacking charge — by stating: “This is a kidnapping, so it doesn’t matter.” Nor was Graham asked at any point during the plea hearing whether he possessed a firearm in connection with a carjacking or informed of the elements of a federal carjacking charge.
The government insists the kidnapping to which Graham pleaded guilty and the carjacking to which he did not were “inextricably intertwined” and “a single event.” But § 924(c) requires a predicate “crime” rather than a predicate event, and it is a commonplace that the same event can give rise to multiple offenses.
For this reason, the government errs in relying on cases involving jury verdicts rendered after trials. In that context, there is a full record, and it makes sense to ask what the jury’s verdict “necessarily” was based on or what any “rational juror[s]” would have found based on the evidence before them. When a defendant pleads guilty, in contrast, there is neither an evidentiary record nor a decision by the defendant’s peers.
Shifting gears, the government insists Graham’s § 924(c) conviction remains valid because he “admitted to facts supporting all the elements of the carjacking at his plea colloquy.” But even if that would be enough (a point this court need not decide), it is not true here. The judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Concurring opinion
Wilkinson, J., concurring:
I concur in Judge Heytens’s thoughtful majority opinion because we are bound by past decisions of the Supreme Court and those of this court that necessarily followed from them. I worry, however, that those precedents have left an incomplete whole. Worse, they run counter to the role that facts are meant to play in criminal sentencing, and they produce results that are simply inexplicable.
United States v. Graham, Case No. 19-7748, May 3, 2023. 4th Cir. (Heytens), from DSC at Florence (Wooten). Emily Deck Harrill for Appellant. William Jacob Watkins Jr. for Appellee. VLW 023-2-127. 20 pp.
