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Criminal Practice – Sentencing – Kidnapping & Firearm Use – Crime of Violence – Guilty Plea

Criminal Practice – Sentencing – Kidnapping & Firearm Use – Crime of Violence – Guilty Plea

In exchange for the state’s dismissal of other charges – including carjacking – defendant pled guilty to kidnapping and using a firearm during a crime of violence. Years later, we determined that kidnapping is not a crime of violence under 18 U.S.C. § 924(c). Since the plea transcript shows that defendant’s § 924(c) offense was predicated upon the kidnapping, his conviction for using a firearm during a crime of violence cannot stand.

We reverse the district court’s denial of defendant’s motion to vacate his § 924(c) conviction.

While the government need not specify a specific § 924(c) predicate offense in the § 924(c) charge in an indictment, the absence of that information from the indictment or plea agreement here means those documents are unhelpful in identifying any predicate offenses on which defendant’s guilty plea was expressly based. Consequently, we must rely on the plea transcript for that information.

The 20-page transcript of defendant’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 defendant about his possession of a firearm during “the kidnapping.”

“Carjacking” was mentioned only once – in connection with defendant’s promise to cooperate in the government’s investigations into several kinds of unlawful activities.

The government contends that defendant nevertheless admitted to all the elements of carjacking. Even if this were sufficient, it is incorrect. Defendant was neither asked or required to admit the stolen car was “made outside South Carolina,” nor did defendant admit that, at the moment he demanded or took the car, he intended to cause death or serious bodily harm if necessary to steal the car. Defendant’s actions after he entered the car do not satisfy this element of carjacking.

Reversed and remanded.


(Wilkinson, J.) I concur in Judge Heytens’s thoughtful majority opinion because we are bound by past decisions.

However, even if a statutory enhancement under § 924(c) does not apply because of the categorical approach, as is the case here, judges may in their discretion calculate a guidelines range or grant upward variances based on the violent nature of the criminal activity. Exercising such discretion would be consistent with Supreme Court and circuit precedent. Even if the categorical approach renders violent predicates legally invalid, district courts are at liberty to sentence on the violent character of the cases that come before them.

United States v. Graham (Lawyers Weekly No. 001-059-23, 20 pp.) (Toby Heytens, J.) (Harvie Wilkinson, J., concurring) No. 19-7748. Appealed from USDC at Florence, S.C. (Terry Wooten, S.J.) Emily Deck Harrill for appellant; William Jacob Watkins, Adair Buroughs and Katherine Hollingsworth Flynn for appellee. United States Court of Appeals for the Fourth Circuit

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