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United States v. Brewer

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

July 25, 2019

UNITED STATES OF AMERICA
v.
ANTON LAMONT BREWER, Petitioner.

          OPINION

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

         Anton Lamont Brewer, 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. 39.) The government moved to dismiss the § 2255 motion. (Dk. No. 41.) As discussed below, the Court will grant the government's motion to dismiss because Brewer's claim lacks merit.[1]

         I. BACKGROUND

         On June 17, 2014, a grand jury charged Brewer with: conspiracy to obstruct, delay, and affect commerce by robbery, in violation of 18 U.S.C. § 1951 (Count One); three counts of interference with commerce by robbery, in violation of § 1951 (Counts Two, Three, and Five); and use and carry of a firearm during and in relation to a crime of violence, in violation of § 924(c) (Count Four). (Dk. No. 1.) The "crime[s] of violence" underlying Count Four were interference with commerce by robbery ("Hobbs Act robbery") allegedly committed on or about November 13, 2012; February 18, 2013; and March 25, 2013. Brewer pled guilty to Counts One and Four. On November 5, 2014, the Court sentenced Brewer to a total of 144 months of imprisonment. (Dk. No. 27.)

         Brewer filed a motion seeking appointment of counsel to raise a claim for relief under Johnson on June 22, 2016, which the Court granted on June 23, 2016. Brewer filed a § 2255 motion on June 26, 2016, 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). Appointed counsel filed an amended motion on July 15, 2016.

         Thereafter, the government moved to dismiss, arguing that the relevant statute of limitations barred the § 2255 motion. Brewer 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.

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

         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. 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. ...


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