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United States v. Dickerson

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

July 25, 2019

UNITED STATES OF AMERICA
v.
CORBIN ALEXANDER DICKERSON, Petitioner.

          OPINION

          JOHN A. GIBNEY UNITED STATES DISTRICT JUDGE.

         Corbin Alexander Dickerson, 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. 69.) The government moved to dismiss the § 2255 motion. (Dk. No. 75.) As discussed below, the Court will grant the government's motion to dismiss because Dickerson's claim lacks merit.[1]

         I. BACKGROUND

         On August 17, 2009, a grand jury charged Dickerson with: conspiracy to obstruct, delay, and affect commerce by robbery, in violation of 18 U.S.C. § 1951(a) (Count One); four counts of robbery affecting commerce ("Hobbs Act robbery"), in violation of 18 U.S.C. §§ 1951(a) and 2 (Counts Two, Three, Six, and Ten); using, carrying, and possessing a firearm in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Count Seven); bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 2 (Count Nine); and possession of a firearm which is not registered in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d) (Count Eleven). (Dk. No. 1.) The "crime of violence" underlying Count Seven was Hobbs Act robbery allegedly committed on March 28, 2009. Dickerson pled guilty to Counts Seven, Nine, and Ten. On January 21, 2010, the Court sentenced Dickerson to a total of 121 months of imprisonment. (Dk. No. 63.)

         Dickerson filed a § 2255 motion on June 23, 2016, asking the Court to vacate his conviction under Count Seven 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). The government moved to dismiss on August 10, 2016. Dickerson responded to the motion on August 24, 2016, and renewed his request that the Court hold his § 2255 motion in abeyance. On October 31, 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 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")[2] violates the Constitution's guarantee of due process." 13 5 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.

         Dickerson 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, Dickerson asserts that Hobbs Act robbery cannot constitute a crime of violence, so the Court must vacate his conviction for Count Seven.

         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, 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. § 1951(a). The statute defines "robbery" as

the unlawful taking or obtaining of personal property from the person or in the presence of another, against his [or her] will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his [or her] person or property, or property in his [or her] custody or possession, or the person or property of a relative or member of his [or ...

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