United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant Vincente Wynder
Garcia's ("Defendant") Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255.
December 29, 2015, Defendant pleaded guilty to two counts
(Count Seven and Count Eight) of using a firearm during and
in relation to a "crime of violence, " in violation
of 18 U.S.C. § 924(c). The underlying "crime of
violence" for these counts was interference with
commerce by robbery, in violation of 18 U.S.C. § 1951
(Hobbs Act robbery). These counts stemmed from
Defendant's participation in the armed robbery of
multiple 7-Elevens, a Papa John's Pizza, and the Asia
Garden Chinese Restaurant. On April 1, 2016, this Court
sentenced Defendant to a term of 84 months on Count Seven
followed by a consecutive term of 300 months on Count Eight.
24, 2016, Defendant moved to vacate both convictions pursuant
to 28 U.S.C. § 2255, arguing that Hobbs Act robbery is
not a "crime of violence" under either the force
clause or residual clause of 18 U.S.C. § 924(c)
post-Johnson v. United States, 135 S.Ct. 2551
(2015). Defendant argues that the residual clause in 924(c)
is materially indistinguishable from the Armed Career
Criminal Act residual clause that the Supreme Court struck
down in Johnson. On August 8, 2016, the Government
filed an Opposition to Defendant's § 2255 Motion.
28 U.S.C. § 2255, a person may attack his sentence or
conviction on the grounds that it was imposed in violation of
the Constitution or laws of the United States, that the court
was without jurisdiction to impose such a sentence, that the
sentence exceeded the maximum authorized by law, or that the
sentence otherwise is subject to collateral attack. 28 U.S.C.
§ 2255; see also Hill v. United States, 368
U.S. 424, 426-27 (1962). The party seeking relief bears the
burden of proving his grounds for collateral relief by a
preponderance of the evidence. Vanater v. Boles, 377
F.2d 898, 900 (4th Cir. 1967).
person is guilty of Hobbs Act robbery if he or she "in
any way or degree obstructs, delays, or affects commerce or
the movement of any article or commodity in commerce, by
robbery or extortion or attempts or conspires so to do, or
commits or threatens physical violence . . . ." 18
U.S.C. § 1951(a). The statute defines robbery as an
unlawful taking or obtaining of personal property from the
person or presence of another by actual or threatened force,
violence, or fear of injury. If Hobbs Act robbery constitutes
a predicate offense under § 924(c)(3)(A), the force
clause, then the Court need not reach the constitutional
question raised under § 924(c)(3)(B), the residual
clause. For the reasons that follow, this Court joins other
courts to hold that Hobbs Act robbery contains as one of its
elements the actual, attempted, or threatened use of physical
force against the person or property of another, thereby
constituting a crime of violence under § 924(c)(3)(A).
the Fourth Circuit's decision in United States v.
McNeal, 818 F.3d 141, 153 (4th Cir.) supports the
conclusion that Hobbs Act robbery is a crime of violence and
thus a predicate offense under the force clause of §
924(c) (3) (A). In McNeal, the Fourth Circuit held
that bank robbery under 18 U.S.C. § 2119 is a crime of
violence and thus a predicate offense under the force clause.
Section 2119 uses the "intimidation" standard, but
that standard is not materially different from the "fear
of injury" standard used in the force clause of §
924(c)(3)(A). See, e.g., United States v.
Howard, 650 F.App'x 466, 468 (9th Cir. 2016)
("Because bank robbery by "intimidation"-which
is defined as instilling fear of injury-qualifies as a crime
of violence, Hobbs Act robbery by means of "fear of
injury" also qualifies as crime of violence.");
United States v. Standberry, 139 F.Supp.3d 734, 740
(E.D. Va. 2015) ("Although the bank robbery statute, 18
U.S.C. § 2113(a), uses different phraseology to describe
the crime of robbery, its import is the same.").
the legislative history from § 924 (c) (3) (A) supports
the conclusion that Hobbs Act robbery is a predicate offense.
Prior to the 1984 amendments to § 924 (c), armed bank
robbery was not a predicate offense under the force clause of
§ 924 (c) as the Supreme Court held in Simpson v.
United States, 435 U.S. 6, 12 (1978). In response to
Simpson, Congress amended § 924 (c) so that
bank robbery would constitute a predicate offense. According
to a Senate report, the amended "Section 924(c) provides
for a mandatory, determinate sentence for a person who uses
or carries a firearm during and in relation to any federal
'crime of violence, * including offenses such as bank
robbery . . ." S. Rep. No. 98-225, at 3491 (1983).
this Court joins the many other courts to hold that Hobbs Act
robbery is a crime of violence and constitutes a predicate
offense under the force clause of 924(c)(3)(A). See,
e.g., In re Fleur, 824 F.3d 1337, 1340 (11th
Cir. 2016) ("Hobbs Act robbery . . . clearly qualifies
as a "crime of violence' under the use-of-force
clause in § 924(c)(3)(A)."); United States v.
Hill, 832 F.3d 135, 144 (2d Cir. 2016). Thus,
Defendant's conviction under § 924(c) is proper
because Hobbs Act robbery is a predicate crime of violence
decided that Defendant's conviction for Hobbs Act robbery
is a crime of violence under the force clause, § 924 (c)
(3) (A), this Court need not reach the constitutional
question raised under the residual clause, § 924(c) (3)
(B) . Thus, the Defendant's § 2255 Motion to ...