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United States v. Edwards

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

July 25, 2019

UNITED STATES OF AMERICA
v.
CLEVON S. EDWARDS, Petitioner.

          OPINION

          John A. Gibney, Jr., United States District Judge

         Clevon S. Edwards, a federal inmate proceeding with counsel, brings this 28 U.S.C. § 2255 motion arguing that Johnson v. United States, 135 S.Ct. 2551 (2015), invalidates his conviction under 18 U.S.C. § 924(c). (Dk. No. 121.) The government moved to dismiss the § 2255 motion. (Dk. No. 122.) As discussed below, the Court will grant the government's motion to dismiss because Edwards' claim lacks merit.[1]

         I. BACKGROUND

         On June 3, 2003, a grand jury charged Edwards with: conspiracy to interfere with commerce by threats and violence, in violation of 18 U.S.C. § 1951 (Count One); attempted interference with commerce by threats and violence, in violation of §§ 1951 and 2 (Count Two); use and carry of a firearm during and in relation to a crime of violence, in violation of §§ 924(c) and 2 (Count Three); possession of a firearm by a convicted felon, in violation of § 922(g)(1) (Count Four); and possession of a firearm by an unlawful user of controlled substances, in violation of § 922(g)(3) (Count Five). (Dk. No. 13.) The "crime of violence" underlying Count Three was attempted interference with commerce by threats and violence ("attempted Hobbs Act robbery") as charged in Count Two. Edwards pled guilty to Counts One, Two, and Three. On November 5, 2003, the Court sentenced Edwards to a total of 540 months of imprisonment. (Dk. No. 62.)

         On June 27, 2016, Edwards filed a pro se § 2255 motion and requested appointment of counsel to seek relief under Johnson. On July 12, 2016, appointed counsel filed an amended § 2255 motion, asking the Court to hold the § 2255 motion in abeyance pending a decision from the Fourth Circuit regarding whether Hobbs Act robbery is a "crime of violence" under § 924(c).

         Thereafter, the government moved to dismiss, arguing that the relevant statute of limitations barred the § 2255 motion. Edwards responded that he timely filed his motion and renewed his request that the Court hold his motion in abeyance. On November 8, 2016, the Court held the motions in abeyance pending the Supreme Court's decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018). On July 30, 2018, the Court stayed all motions pending the Fourth Circuit's decision in United States v. Simms, 914 F.3d 229 (4th Cir. 2019), which was issued on January 24, 2019. On June 24, 2019, the Supreme Court decided United States v. Davis, 139 S.Ct. 2319 (2019). As Davis was "the last Johnson domino to fall," Simms, 914 F.3d at 252, the Court will now decide these motions.

         II. ANALYSIS

         In Johnson, the Supreme Court held "that imposing an increased sentence under the residual clause of the Armed Career Criminal Act [("ACCA")[2] violates the Constitution's guarantee of due process." 135 S.Ct. at 2563. The Johnson Court found the definition of a "violent felony" in the ACCA's residual clause unconstitutionally vague because the clause encompassed "conduct that presents a serious potential risk of physical injury to another," which defied clear definition. Id. at 2557-58. Recently, the Fourth Circuit in Simms, 914 F.3d at 236, and the Supreme Court in Davis, 139 S.Ct. at 2336, deemed the similarly worded residual clause of 18 U.S.C. § 924(c) unconstitutionally vague.

         Edwards says that the "residual clause" of § 924(c)(3) is unconstitutionally vague and that attempted Hobbs Act robbery does not qualify as a crime of violence under the "elements clause" of § 924(c)(3). Accordingly, Edwards asserts that attempted Hobbs Act robbery cannot constitute a crime of violence, so the Court must vacate his conviction for Count Three.

         Section 924(c)(1)(A) provides for consecutive periods of imprisonment when a defendant uses or carries a firearm in furtherance of a crime of violence. The law requires a minimum prison term of five years, which increases to seven years if the defendant brandishes the firearm and ten years if the defendant discharges the firearm. Id. § 924(c)(1)(A). An underlying offense constitutes a crime of violence under § 924(c)(3) if it is a felony and:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another [(the "elements clause")], or
(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 [(the "residual clause")].

Id. § 924(c)(3). As explained below, attempted Hobbs Act robbery constitutes a crime of violence under the elements clause.

         A defendant is guilty of Hobbs Act robbery if he or she "obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery... or attempts or conspires so to do." Id. ...


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