20

- 578 United States v. Holloway



## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO TATION “ SUMMARY ORDER ” ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 1 5 t h da y of F e b r u a r y , two thousand twenty

- two

. 3 4 PRESENT: 5 MICHAEL H. PARK , 6 WILLIAM J. NARDINI , 7 MYRNA P É REZ , 8 Circuit Judges. 9

____________________________ _________ 10 11 UNITED STATES OF AMERICA , 12 13 Appell ee , 14 15

v. 20

- 578 16 17 MALIK HOLLOWAY , A/K/A BLEEK, 18 19 Defendant

- Appell ant

. * 20

_____________________________________ 21 22 F OR APPELL EE : Jo Ann M. Navickas and Erik Paulsen, 23 Assistant United States Attorneys, for 24 Jacquelyn M. Kasulis, Acting United States 25 Attorney for the Eastern District of New 26 York, Brooklyn, NY. 27 28

* The Clerk of Court is respectfully directed to amend the caption of the case as set forth.2 F OR DEFENDANT

- APPELL ANT : Steven Y. Yurowitz , Newman & Greenberg 1 LLP, New York, NY. 2 3 Appeal from a judgment of the United States District Court for the Eastern District of New 4
York ( Chen
, J

. ). 5

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 6

DECREED that the judgment of the district court is AFFIRMED

. 7
On August 20, 2018, Malik Holloway pleaded guilty to a conspiracy to violate the Travel 8

Act, 18 U.S.C. § § 371 , 1952(a)(3)

. The district court imposed a below

- Guidelines, 14

- month 9
sentence, followed by two years’ supervised release. After Holloway served his sentence, the U.S. 10

Pro bation Department reported over a dozen violations of his supervised release to the district 11

court. The alleged violations included Holloway’s arrest for selling crack cocaine to an informant
, 12
as well as possession of ammunition and drugs at his residence

. 13

The district court held a hearing on these violations on October 10, 2019. T he court 14
remanded Holloway to custody pending resolution of the supervised release violations. A standard 15
strip search conducted by the U.S. Marshals Service before his confin ement revealed a scalpel and 16
seven bags of narcotics in his rectal cavity. Based on this conduct, Probation submitted an 17

amended Violation of Supervised Release (“VOSR”) Report charg ing Holloway with “ Charge 18

Seventeen ” for “possession of a dangerous weapon in a federal court facility, in violation of 18 19

U.S.C. [§] 930(e)(1).” Holloway pleaded guilty to this charge, and the district court sentenced 20
Holloway to 24 months’ imprisonment

— the maximum statutory sentence allow ed. 1 Holloway 21

now argues , for the first time on appeal, that his conviction and sentence on this charge must be 22
vacated because the definition of “dangerous weapon” contained in 18 U.S.C. § 930(e)(1)

— the 23

1 On the government’s motion, the district court dismissed the remaining 16 supervised release violations.3 statute referenced in the VOSR Report

— is void for vagueness. We assume the parties’ familiarity 1
with the underlying facts, procedural history, and issues on appeal. 2

This Court reviews a n unpreserved vagueness challenge for plain error. See United States 3
v. Rybicki , 354 F.3d 124, 129 (2d Cir. 2003) (en b anc) . “Under plain error review, an appellant 4
must demonstrate that (1) there is an error; (2) the error is clear or obvious, rather than subject to 5
reasonable dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary 6

case means it affected the outcome of the district court proceedings; and (4) the error seriously 7
affects the fairness, integrity or public reputation of judicial proceedings.” United States v. 8

Napout , 963 F.3d 163, 183 (2d Cir. 2020) ( cleaned up )

. 9

“The void

- for

- vagueness doctrine requires that a penal statute define the criminal offense 10
with sufficient definiteness that ordinary people can understand what conduct is prohibited and in 11
a manner that does not encourage arbitrary and discriminatory enforcement.” Id. at 181 (citation 12
omitted). The doctri ne implicates two concerns: “fair notice” and “arbitrary and discriminatory 13
prosecutions.” Skilling v. United States , 561 U.S. 358, 412 (2010). A two

- step process governs 14

o ur analysis: we must (1) “determine whether the statute gives the person of ordinary intelligence 15
a reasonable opportunity to know what is prohibited ” and (2) “ then consider whether the law 16
provides explicit standards for those who apply it.” Rubin v. Garvin , 544 F.3d 461, 4 68 (2 d Cir. 17
2008) ( citation omitted )

. 18
As a threshold matter, the parties dispute the basis for Holloway’s conviction. The 19
government contends that the scope of 18 U.S.C. § 930(e)(1) is not at issue, because the VOSR 20
Report charged Holloway with violating a con dition of supervis ed release that directly prohibited 21
him from retaining or possessing a dangerous weapon. Holloway, on the other hand, asserts that 22
the VOSR Report alleged a violation of the condition directing him to refrain from committing a 234 federal fe lony, therefore implicating section 930(e)(1). We need not resolve this dispute because, 1
even assuming a constitutional

- vagueness analysis of section 930(e)(1) applies, Holloway fails to 2

show plain error. 3
Section 930(e)(1) authorizes a fine and term of im prisonment for “whoever knowingly 4
possesses or causes to be present a firearm or other dangerous weapon in a Federal court facility.” 5
18 U.S.C. § 930(e)(1). Meanwhile, s ection 930(g)(2) defines “dangerous weapon” as “a weapon, 6

device, instrument, materia l, or substance, animate or inanimate, that is used for, or is readily 7
capable of, causing death or serious bodily injury, except that such term does not include a pocket 8

knife with a blade of less than 2 1⁄2 inches in length.” Id. § 930(g)(2). Holloway ch allenges the 9

facial validity of section 930(e)(1)
, claim ing that it prohibits possession of innocuous items such 10
as boots, doors, handkerchiefs, and pencils, and thus is unconstitutional because it “invites wholly 11
arbitrary enforcement

. ” Appellant’s Br. at 11

. 12

“ [W] e typically evaluate vagueness challenges to statutes not threatening First Amendment 13
interests . . . in light of the facts of the case at hand, i.e. , only on an as

- applied basis.” United 14

States v. Requena , 980 F.3d 30, 40 (2d Cir. 2020) (cleaned up)

. This requirement is based on the 15
general tenet that , to succeed in a facial challenge , “the challenger must establish that no set of 16
circumstances exists under which the [challenged statute] would be valid.” Id. at 39 ( citation 17

omitted )

. “ N either the Supreme Court nor our Court has definitely resolved whether facial 18
vagueness challenges not based on the First Amendment may proceed against statutes that can 19
constitutionally be applied to the challenger’s own conduct.” Id. at 40

. In any event, Holloway 20

fails to demonstrate section 930(e)( 1 )’s invalidity either on its face or as applied to his conduct. 21

First, section 930(e)(1) is not unconstitutionally vague as applied to Holloway. B ased on 22
the plain text of the provision , a “person of ordinary intelligence” would have “a reasonable 235 opportunity to know” that smuggling a scalpel into a federal courthouse is prohibited by the statute. 1

R ybicki , 354 F.3d at 132 (citation omitted ). 2 It cannot be seriously disputed that a scalpel is an 2

item “readily capable of[] causing death or serious bodily injury.” 18 U.S.C. § 930(g)(2). 3

Second, even assuming this C ourt can consider Holloway’s facial challenge
, it is meritless. 4
An item may quali fy as a dangerous weapon under section 930(e)(1) if it is (1) “used for . . . 5
causing death or serious bodily injury” or (2) “is readily capable of [] causing death or serious 6
bodily injury.” 18 U.S.C. § 930(g)(2). Holloway cites several case s concluding that items like 7
water pitchers and boots are “dangerous weapons ” under a definition of that term contained in the 8
Sentencing Guidelines
, see U.S.S.G. § 2A2.2(b)(2)(B), (C)

. 3 He thus argues that section 930(e)( 1 ) 9

covers possession of innocuous, everyday items , rendering it unconstitutionally vague

. 10
We disagree . The definition of “dangerous weapon” in section 930(g)( 2 ) requires no 11
“judge

- imagined abstraction” in its application , which instead depend s on “real

- world facts

. ” 12

Johnson v. United States , 576 U.S. 591, 59 8 (2015)

. Moreover, the potential breadth of conduct 13
covered by a criminal statute does not render it unconstitutionally vague. “Statutes need not . . . 14
achieve meticulous specificity, which would come at the cost of f lexibility and reasonable breadth. 15
The test is whether the language conveys sufficiently definite warning as to the proscribed conduct 16

2 While the relevant inquiry focuses on a hypothetical “person of ordinary intelligence,” the circumstances here also demonstrate Holloway’s actual knowledge that h e engaged in prohibited conduct. Holloway evaded detection by courthouse security by concealing the scalpel in his rectal cavity

— an
e xtraordinary action that no reasonable person would take unless he believed that he was engaged in prohibited conduct

.
3 None of the cases cited by Holloway involved section 930(e)( 1 ) or the definition of “dangerous weapon” in section 930(g)(2)

. See, e.g.
, United States v. Tolbert , 668 F.3d 798, 802 (6th Cir. 2012); United States v. Serrata , 425 F.3d 886, 910

– 11 (10th Cir. 2005) ; U.S.S.G. §§ 1B1.1 cmt. n.1 (defining “[d]angerous weapon” as “an instrument capable of inflicting death or serious bodi ly injury”); 2A2.2 cmt. n.1 (for purposes of a sentencing enhancement for aggravated assault, including in the definition of “[d]angerous weapon . . . any instrument that is not ordinarily used as a weapon . . . if such an instrument is involved in the off ense with the intent to commit bodily injury”).6 when measured by common understanding and practices.” Arriag a v. Mukasey , 521 F.3d 219, 224 1
(2d Cir. 2008) (cleaned up) . A person of ordinary intelligence would understand the type of 2
conduct covered by section 930(e)(1). We are also unpersuaded by Holloway’s assertion that the 3

statute “invites wholly arbitrary enforcement.” Appellant’s Br. at 11. Holloway fails to cit e a 4
single instance of this statute being enforced in a way that “allows policemen, prosecutors, and 5
juries to pursue their personal predilections.” Arriag a , 521 F.3d at 2 28 (citation omitted). Thus, 6
Holloway has not show n that section 930(e)(1) “denies fair notice to defendants and invites 7
arbitrary enforcement by judges.” Johnson , 576 U.S. at 597. 8
We have considered the remainder of Holloway’s arguments and find them to be without 9

merit. For the foregoing reasons, we affirm the judgment of the distri ct court. 10

FOR THE COURT: 11 Catherine O ’ Hagan Wolfe, Cler k of Court 12