United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE.
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.
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.)
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.
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
Johnson, the Supreme Court held "that imposing
an increased sentence under the residual clause of the Armed
Career Criminal Act [("ACCA") 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)
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.
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
Id. § 924(c)(3). As explained below, Hobbs Act
robbery constitutes a crime of violence under the elements
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. ...