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Byron v. United States

United States District Court, E.D. Virginia, Norfolk Division

October 3, 2016

DOUGLAS TYRONE BYRON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 2:11cr192-2

          USA, Plaintiff, represented by William David Muhr, United States Attorney's Office.

          MEMORANDUM OPINION AND ORDER

          RAYMOND A. JACKSON, District Judge.

         Douglas Tyrone Byron ("Petitioner") has submitted a Motion pursuant to Title 28, United States Code, Section 2255 to Vacate Sentence by a Person in Federal Custody ("§ 2255 Motion"). Having thoroughly reviewed the Parties' filings in this case, the Court finds this matter is ripe for judicial determination. For the reasons set forth below, Petitioner's § 2255 Motion is DENIED.

         I. FACTUAL AND PROCEDURAL HISTORY

         On November 8, 2011, the United States Attorney's Office ("Respondent") filed a criminal complaint against Petitioner. ECF No. 1. On November 16, 2011, an Eastern District of Virginia Grand Jury returned an indictment charging Petitioner with five counts. ECF No. 9.

         On March 13, 2012, Petitioner pled guilty to counts two and three of the indictment. ECF No. 67. Count two charged Petitioner with interference with commerce by robbery, in violation of 18 U.S.C. §§ 1951(a) and 2. Count three charged Petitioner with use of a firearm during a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. ECF No. 68.

         On June 18, 2012, Petitioner was sentenced to a term of sixty-six months imprisonment on count two and a term of eighty-four months imprisonment on count three, all to be served consecutively. ECF No. 119. The sentence was subsequently amended.

         On June 20, 2016, Petitioner, through counsel, filed the instant Motion to Vacate Sentence under 28 U.S.C. § 2255 ("§ 2255"). ECF No. 190. Petitioner's § 2255 Motion also requested that it be held in abeyance, pending a decision from the United States Court of Appeals for the Fourth Circuit regarding whether "Hobbs Act robbery" under 18 U.S.C. § 1951(a) is a crime of violence. Id. On July 21, 2016, Respondent filed a Motion to Dismiss Petitioner's § 2255 Motion. ECF No. 197.

         In his § 2255 Motion, Petitioner argues that his conviction on count three, under 18 U.S.C. § 924(c), should be vacated in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Specifically, Petitioner argues that the statutory language held unconstitutionally vague in Johnson is "materially indistinguishable" from the statutory language under which he was convicted on count three, i.e., the residual clause of 18 U.S.C. § 924(c)(3)(B) ("§ 924(c)(3)(B)"). Therefore, according to Petitioner, Johnson also invalidates § 924(c)(3)(B), requiring that his conviction on count three be vacated. Mot. Vacate 1-2, ECF No. 190.

         In response, Respondent argues that Petitioner is not entitled to file a motion under § 2255 because the Supreme Court has not yet recognized § 924(c)(3)(B) as unconstitutionally vague. According to Respondent, the Johnson holding does not invalidate § 924(c)(3)(B), leaving Petitioner without a cognizable right to assert on collateral review. Mot. Dismiss 1, ECF No. 197.

         II. LEGAL STANDARDS

         When a petitioner in federal custody wishes to collaterally attack his sentence or conviction, the appropriate motion is a § 2255 motion. United States v. Winestock, 340 F.3d 200, 203 (4th Cir. 2003). Section 2255 of Title 28 of the United States Code governs post-conviction relief for federal prisoners. It provides in pertinent part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral ...

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