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United States v. Kanard

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

July 25, 2019

UNITED STATES OF AMERICA
v.
JOHN J. KANARD, Petitioner.

          OPINION

          JOHN A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE.

         John J. Kanard, 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) and his designation as a career criminal. (Dk. No. 40.) The government moved to dismiss the § 2255 motion. (Dk. No. 48.) As discussed below, the Court will grant the government's motion to dismiss because Kanard's claims lack merit.[1]

         I. BACKGROUND

         On July 21, 2004, a grand jury charged Kanard with: two counts of interference with commerce by violence ("Hobbs Act robbery"), in violation of 18 U.S.C. § 1951 (Counts One and Three); discharge of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Two); possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Four); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Five). (Dk. No. 3.)[2] The "crimes of violence" underlying Counts Two and Four were Hobbs Act robberies allegedly committed on March 8, 2004, and March 3, 2004, respectively. Kanard pled guilty to Counts One and Two.

         The Court determined that Kanard qualified as a career offender under §§ 4B1.1 and 4B1.2 of the United States Sentencing Guidelines based on his prior convictions for felony bodily injury by a prisoner and felony bodily injury. Kanard says that without a career offender enhancement, his Guidelines range would have been 51 to 63 months on Count One instead of 271 to 308 months.[3] On December 6, 2005, the Court sentenced Kanard to a total of 271 months of imprisonment. (Dk. No. 36.)

         Kanard filed a § 2255 motion on June 24, 2016, asking the Court to vacate his conviction under Count Two and to hold the motion in abeyance pending a decision from the Fourth Circuit on whether the ruling in Johnson applies to convictions under § 924(c). On October 3, 2016, the government moved to dismiss Kanard's challenge to his § 924(c) conviction. The government also requested that the Court hold Kanard's related challenge to his career offender designation in abeyance pending a decision in Beckles v. United States, 137 S.Ct. 886 (2017). Kanard responded to the motion on October 26, 2016, and renewed his request that the Court hold his § 2255 motion in abeyance in light of pending Fourth Circuit litigation and the Supreme Court's decision to grant certiorari on a similar matter in Session v. Dimaya, 138 S.Ct. 1204 (2018). Kanard joined the government in asking the Court to hold his challenge to his career offender designation in abeyance pending a decision in Beckles.

         On October 31, 2016, the Court granted the parties' requests to hold the motions in abeyance. On July 16, 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")[4] 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. In Beckles, the Court held that Johnson did not invalidate the identical residual clause of U.S.S.G. §4B1.2 because the Guidelines are not subject to a vagueness challenge under the Due Process Clause. 137 S.Ct. at 892. Most recently, the Fourth Circuit in Simms, 914 F.3d at 236, and the Supreme Court in Davis, 139 S.Ct. at 2336, deemed the similar residual clause of 18 U.S.C. § 924(c) unconstitutionally vague.

         A. Kanard's Challenge to His Firearm Conviction

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

         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 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 ...

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