                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
UNITED STATES OF AMERICA             )
                                     )
      v.                             )  Criminal Action No. 13-262-01 (RMC)
                                     )
PABLO LOVO,                          )
                                     )
            Defendant.              )
____________________________________)



                                 MEMORANDUM OPINION

               Pablo Lovo was convicted by a jury on May 28, 2014, on two criminal counts: (1)

Conspiracy to Interfere with Interstate Commerce by Robbery in violation of 18 U.S.C. § 1951

(2012), and (2) Using, Carrying, and Possessing a Firearm During a Crime of Violence and

Aiding and Abetting in violation of 18 U.S.C. § 924(c)(1) and (2). On March 26, 2015, this

Court sentenced him to a period of incarceration of 64 months on Count One and a period of 60

months’ incarceration on Count Two, consecutive to Count One, as mandated. The Court also

imposed a period of post-incarceration supervised release of 36 months on each Count to be

served concurrently. Judgment was entered on April 8, 2015. Mr. Lovo filed a timely appeal on

April 9, 2015. While that appeal was pending, on December 23, 2016, Mr. Lovo filed a Motion

for Bail Pending Appeal [Dkt. 274], which the government opposed. Opp’n [Dkt. 277]. The

defendant did not file any reply. After considering Mr. Lovo’s arguments, the Court will deny

his motion for bail pending appeal, for the reasons stated below.

                                       I. BACKGROUND

               Mr. Lovo cites 18 U.S.C. § 3143(b) as authority for his motion. See Mot. at 3.

That statute governs release pending appeal by a person who “has been found guilty of an


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offense and sentenced to a term of imprisonment.” The statute directs that release pending

appeal is appropriate if the Court finds:

               (A) by clear and convincing evidence that the person is not likely to
               flee or pose a danger to the safety of any other person or the
               community . . .; and
               (B) that the appeal is not for purpose of delay and raises a substantial
               question of law or fact likely to result in—
                       (i) reversal,
                       (ii) an order for a new trial, . . . or
                       (iii) a reduced sentence to a term of imprisonment less than
                       the total of the time already served plus the expected
                       duration of the appeal process.

18 U.S.C. § 3143(b)(1) (2012). Mr. Lovo asserts that he meets the standards in this statute and

was not convicted of an offense that implicates mandatory detention; the United States opposes

his motion on both grounds.

               In response, the government relies on 18 U.S.C. § 3143(b)(2), which mandates

that a judicial officer order a defendant be detained pending appeal when that defendant “has

been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection

(f)(1) of section 3142 and sentenced to a term of imprisonment.” Section 3142(f)(1)(A)-(C), in

turn, lists the following offenses:

               (A) a crime of violence, a violation of section 1591, or an offense
               listed in section 2332b(g)(5)(B) for which a maximum term of
               imprisonment of 10 years or more is prescribed;
               (B) an offense for which the maximum sentence is life imprisonment
               or death; [or]
               (C) an offense for which a maximum term of imprisonment of ten
               years of more is prescribed in the Controlled Substances Act (21
               U.S.C. 801 et seq.), the Controlled Substances Import and Export
               Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46[.]

18 U.S.C. § 3142(f)(1)(A)-(C). On the face of these statutory provisions, Mr. Lovo is ineligible

for release because he was convicted of violating § 924(c)(1), which has a statutory maximum

sentence of life imprisonment. See Cassell v. United States, 00-cr-270(RMU), 03-cv-1914, 2006

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WL 2051371, n.8 (D.D.C. July 19, 2006), aff’d, 530 F.3d 1009 (D.C. Cir. 2008). Therefore,

§ 3143(b)(2) directs that Mr. Lovo be detained pending appeal.

               These provisions may be avoided “if it is clearly shown that there are exceptional

reasons why such person’s detention would not be appropriate.” 18 U.S.C. § 3145(c). While

§ 3145(c) does not define “exceptional reasons,” courts typically understand the phrase to mean

circumstances that are “clearly out of the ordinary, uncommon, or rare.” United States v. Hite,

12-cr-65 (CKK), 2013 WL 12158577, at *2 (D.D.C. July 30, 2013), aff’d, 540 F. App’x 2 (D.C.

Cir. 2013).

                                          II. ANALYSIS

               A. Mr. Lovo’s 18 U.S.C. § 924(c) Conviction

               In making his argument that such exceptional circumstances occur here, Mr. Lovo

predominantly relies on his argument that his § 924(c) conviction violates his right to

constitutional due process because the statute is void for vagueness under the holding of Johnson

v. United States, 135 S.Ct. 2551 (2015). See Mot. at 9. Johnson held that the “residual” clause

of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), which defines a “prior

offense” under that Act as something that “otherwise involves conduct that presents a serious

potential risk of physical injury to another,” is too vague to pass constitutional scrutiny. 135 S.

Ct. at 2558. Section 924(c) imposes a minimum five-year sentence for any person who uses or

carries a firearm in relation to a “crime of violence.” 18 U.S.C. § 924(c)(1)(A)(i). A “crime of

violence” is further defined in § 924(c)(3)(B) as a crime “that by its nature, involves a substantial

risk that physical force against the person or property of another may be used in the course of

committing the offense.” Based on Johnson, Mr. Lovo contends that his “§ 924(c) conviction[],

which was predicated on the Hobbs Act conspiracy as the ‘crime of violence[,]’ cannot be

sustained” on appeal because the language is similarly vague. Mot. at 9. In support, he cites a
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number of cases invalidating other provisions for vagueness due to Johnson. Id. at 9-10; see

United States v. Sheffield, 832 F.3d 296, 315 (D.C. Cir. 2016) (finding that “D.C.’s attempted

robbery statute simply does not qualify as a crime of violence as a categorical matter.”); United

States v. Gonzalez-Ruiz, 794 F.3d 832, 836 (7th Cir. 2015) (finding conspiracy to commit armed

robbery does not qualify as a violent felony under the ACCA); United States v. Edmundson, 153

F. Supp. 3d 857, 864 (D. Md. 2015) (Hobbs Act conspiracy not a crime of violence; §

924(c)(3)(B) is void for vagueness).

               In response, however, the government identifies several cases that have declined

to apply Johnson to § 924(c). Opp’n at 8; see United States v. Taylor, 814 F.3d 340, 375-76 (6th

Cir. 2016) (explaining that an “argument [that Johnson extends to 924(c)] is without merit”

because “§ 924(c)(3)(B) is considerably narrower”); United States v. Davis, No. 16-10330, 2017

WL 436037, at *2 (5th Cir. Jan. 31, 2017); United States v. Hill, 832 F.3d 135, 140 (2d Cir.

2016); United States v. Prickett, 839 F.3d 697 (8th Cir. 2016). The Court finds these cases

persuasive.

               Mirroring the arguments made in the cited cases, the government points to two

important distinctions between the ACCA residual clause and § 924(c)(3)(B). See Opp’n at 8-9.

First, the ACCA refers to offenses that involve any “conduct that presents a serious potential risk

of physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii), whereas § 924(c)(3)(B) refers to an

offense that “by its nature, involves a substantial risk that physical force against the person or

property or another may be used in the course of committing the offense.” Second, §

924(c)(3)(B) applies to those risks that arise “in the course of committing the offense,” and

avoids a key uncertainty in the ACCA’s residual clause, which required courts to evaluate the

risk of injury “after” completion of the offense. 135 S. Ct. at 2557.



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               The government also emphasizes the focus in § 924(c)(3)(B) that the risk in

question is the defendant’s use of force against a victim due to the “nature” of the criminal

conduct, not the risk of injury to a victim, as in the ACCA. Opp’n at 9; see Taylor, 814 F.3d at

376-77 (concluding that the “[r]isk of physical force against a victim,” under § 924(c)(3)(B) “is

much more definite than [the] risk of physical injury to a victim” under the ACCA’s residual

clause). The Supreme Court commented that ACCA’s residual clause “seemingly requires the

judge to imagine how the idealized ordinary case of the crime subsequently plays out.” Johnson,

135 S. Ct. at 2557-58. But, as Taylor found, under § 924(c)(3)(B), “the force must be used and

the risk must arise in order to effectuate the crime. Thus, unlike the ACCA residual clause,

§ 924(c)(3)(B) does not allow courts to consider ‘physical injury [that] is remote from the

criminal act,’ a consideration that supported the Court’s vagueness analysis in Johnson.” Taylor,

814 F.3d at 377 (quoting Johnson, 135 S. Ct. at 2559).

               While not expressly argued by Mr. Lovo, the Court also does not believe that

cases such as Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), increase the likelihood of Mr.

Lovo’s success on appeal. Dimaya held that 18 U.S.C. § 16(b), which defines a “crime of

violence” in language functionally identical to § 924(c)(3)(B), was unconstitutionally vague due

to Johnson’s reasoning. Id. at 1111. Unlike § 16(b), however, § 924(c) requires a nexus to use

of force in connection with the use or possession of a firearm during the commission of a crime.

Section 16(b) has far broader applicability, including, as is the case in Dimaya, its use to define

an “aggravated felony” for the purposes of the Immigration and Nationality Act, 8 U.S.C.

§ 1101(a)(43)(F). Dimaya, 803 F.3d at 1111. Section 924(c)’s additional nexus requirement

limits the applicability, and any potential vagueness, of § 924(c)(3)(B), in a way that § 16(b)’s

general definition does not, despite the similarity of language.



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               The D.C. Circuit has not spoken on this issue and Mr. Lovo’s appeal of his §

924(c) conviction raises a legitimate question. Nonetheless, the Court is not persuaded that such

a question rises to the level of exceptional circumstances as required. The differences between

the texts and the contexts of the ACCA and § 924(c) are too distinct, and the caselaw too

conflicted for the Court to conclude that Mr. Lovo is likely to win on appeal. Therefore, the

Court has no reason to consider his conviction any less serious or to lessen his obligation to show

“exceptional” circumstances to warrant release pending appeal.1

               B. Other Factors

               In addition to his legal argument against his § 924(c) conviction, Mr. Lovo offers

his employment history and ability to be re-employed if released, family support as demonstrated

by letters submitted at sentencing, and connections to the community to show that he is neither a

risk of flight nor a danger to the community if released. See Mot. at 4-8. Notably, these factors

all existed at the time of the criminal conduct for which he was convicted and did not prevent it.

               Finally, Mr. Lovo identifies other issues being raised on appeal, including: (1)

whether certain video and audio evidence was improperly admitted at trial; (2) whether the Court

erred in denying his motion to suppress tangible evidence from a warrantless search; (3) whether

the Court erred in failing to grant a new trial based on an entrapment theory; (4) whether Mr.

Lovo was denied effective assistance of counsel; and (5) whether Mr. Lovo’s sentence was

unreasonable for failure to consider entrapment, and other mitigating factors. Mot. at 11.

               These additional arguments made by Mr. Lovo do not provide out-of-the-


1
   As noted, a jury convicted Mr. Lovo based on trial evidence and legal instructions from the
Court, and his appeal is pending before the D.C. Circuit Court of Appeals. The Court addresses
his arguments here, also made on appeal, only in the context of Mr. Lovo’s argument that his §
924(c) conviction should not result in mandatory detention because the statute is void for
vagueness under Johnson v. United States.
                                                        6
ordinary, uncommon, or rare circumstances that would warrant release pending appeal. Many

criminal defendants come from supportive personal backgrounds, and any criminal conviction is

likely to bring with it appeals about the conduct of trial. Mr. Lovo has not identified why his

particular situation, because of these factors, is “exceptional.” The Court therefore concludes

that Mr. Lovo has not met his burden under 18 U.S.C. § 3143.

                                         CONCLUSION

               Mr. Lovo’s motion for release pending appeal will be denied. A memorializing

order accompanies this memorandum opinion.



Date: June 20, 2017                                           /s/
                                                 ROSEMARY M. COLLYER
                                                 United States District Judge




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