United States District Court, E.D. Virginia, Norfolk Division
Plaintiff, represented by Andrew C. Bosse, U.S.
Attorney's Office, Darryl James Mitchell, United States
Attorney's Office, Elizabeth M. Yusi, United States
Attorney's Office & Joseph E. DePadilla, United States
MEMORANDUM FINAL ORDER
REBECCA BEACH SMITH, Chief District Judge.
matter comes before the court on the Petitioner's pro se
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence ("Motion") and accompanying
Memorandum in Support, filed on June 29, 2016. ECF Nos. 196,
February 16, 2011, the Petitioner pled guilty to Counts Two,
Three, and Twelve of the Superseding Indictment. Count Two
charged the Petitioner with Interference with Commerce by
Means of Robbery, in violation of 18 U.S.C. § 1951(a), and
Counts Three and Twelve charged him with Use of a
Short-barreled Shotgun During a Crime of Violence, in
violation of 18 U.S.C. § 924(c)(1)(A) and (B) (i). On May 24,
2011, having adjudged the Petitioner guilty, the court
sentenced the Petitioner to a total term of four hundred
twenty-six (426) months imprisonment. The Petitioner did not
appeal his convictions or sentences.
February 2, 2012, the Petitioner filed a motion pursuant to
28 U.S.C. § 2255. ECF No. 98. On May 24, 2012, the court
granted a motion to withdraw this § 2255 motion and dismissed
it from the docket. ECF No. 119. On March 31, 2014, the
Petitioner filed a § 2255 motion, ECF No. 128, which the
court dismissed as untimely. ECF No. 136. The Petitioner
filed a Motion for Reconsideration, ECF No. 145, which the
court denied. ECF No. 146. The Petitioner appealed, and the
Fourth Circuit affirmed this court's ruling. ECF No. 171.
24, 2016, the Fourth Circuit granted authorization for the
Petitioner to file a successive § 2255 motion based on
Johnson v. United States, 135 S.Ct. 2551 (2015),
thus permitting consideration of the instant Motion by this
court. ECF No. 194. In Johnson, the Supreme Court struck down
the residual clause of the Armed Career Criminal Act of 1984
("ACCA"), in 18 U.S.C. § 924 (e) (2) (B) (ii),
because it was unconstitutionally vague. Johnson,
135 S.Ct. at 2563. Welch v. United States, 136 S.Ct.
1257 (2016), made the new right recognized in Johnson
applicable on collateral review.
the Petitioner was not sentenced under the ACCA. Instead, he
challenges his convictions on Counts Three and Twelve, for
Use of a Short-barreled Shotgun During a Crime of Violence,
in violation of 18 U.S.C. § 924(c)(1). Mem. Supp. at 1. The
Petitioner's underlying crimes of violence for Counts
Three and Twelve were Hobbs Act robbery, in violation of 18
U.S.C. § 1951(a). Superseding Indictment at 6,
15. "Crime of violence, " for
the purposes of § 924(c) (1), is an offense that is a felony
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) 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.
18 U.S.C. § 924(c)(3). Subsection (A) is the force clause,
and subsection (B) is the residual clause. The Petitioner
argues that Hobbs Act robbery qualifies as a "crime of
violence" only under the residual clause, §
924(c)(3)(B). Mem. Supp. at 16-17. He asserts that Johnson
invalidates the residual clause, and therefore his two
convictions under § 924(c)(1) must be vacated. Id.
Petitioner's conviction and sentence do not implicate the
ACCA and its residual clause in § 924 (e) (2) (B) (ii), and
the court declines to extend Johnson to hold that the
residual clause in the definition of "crime of
violence" in § 924(c) (3) is unconstitutionally
addition, the Petitioner's argument fails because the
predicate crime of Hobbs Act robbery, in violation of 18
U.S.C. § 1951(a), is categorically a crime of violence under
the force clause of § 924(c)(3), as this court has
consistently found. See Brown v. United States, No.
4:09cr81-15, 2016 WL 787450 (E.D. Va. Feb. 9, 2016); United
States v. Bennett, No. 3:15cr134, 2016 WL 354753 (E.D. Va.
Jan. 27, 2016); United States v. Walker, No. 3:15cr49, 2016
WL 153088 (E.D. Va. Jan. 12, 2016); United States v. Wilson,
No. 4:15cr21 (E.D. Va. Dec. 8, 2015); United States v.
McDaniels, No. I:15cr171, 2015 WL 7455539 (E.D. Va. Nov.
23, 2015); United States v. Wyche, No. 2:15cr97 (E.D. Va.
Nov. 9, 2015); United States v. Waites, No. 2:15cr110 (E.D.
Va. Oct. 30, 2015); United States v. Hunter, No.
2:12cr124, 2015 WL 6443084 (E.D. Va. Oct. 23, 2015);
United States v. Standberry, No. 3:15cr102, 2015 WL
5920008 (E.D. Va. Oct. 9, 2015). Indeed, "[a]mple case
law confirms the conclusion that Hobbs Act robbery can serve
as a crime of violence as defined by § 924(c)(3)(A)."
McDaniels, 2015 WL 7455539, at *6. The Petitioner
has not presented any arguments warranting departure from
this case law, and the court reaffirms the finding here.
Johnson does not invalidate the residual clause in §
924(c)(3), and because Hobbs Act robbery is categorically a
crime of violence under the force clause of § 924(c)(3), the
Petitioner's convictions for violations of 18 U.S.C. §
924 (c) (1) (A) do not implicate the holding in Johnson. The
Petitioner, therefore, fails to state a claim under Johnson,
and his Motion is meritless. Accordingly, the Motion is
Petitioner is ADVISED that he may appeal from this Memorandum
Final Order by forwarding, within sixty (60) days of the
entry date of this Memorandum Final Order, a written notice
of appeal to the Clerk of the United States District Court at
600 Granby Street, Norfolk, Virginia 23510. The ...