United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING IN PART AND DENYING IN
PART 28 U.S.C. § 2255 MOTION)
E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE.
Harold Brown, a federal inmate proceeding with counsel, filed
this 28 U.S.C. § 2255 Motion ("§ 2255
Motion," ECF No. 221) arguing that his firearm
convictions are invalid under Johnson v. United
States, 135 S.Ct. 2551 (2015). The Government initially
filed a Motion to Dismiss the § 2255 Motion contending
that it is barred by the relevant statute of limitations.
(ECF No. 219.) Thereafter, the Court ordered further
briefing. In its most recent response, the Government
concedes that in light of United States v. Davis,
139 S.Ct. 2319, 2336 (2019) and United States v.
Simms, 914 F.3d 229 (4th Cir. 2019), Brown's firearm
conviction in Count Two should be vacated. Nevertheless, the
Government maintains that Brown's challenge to his
firearm conviction in Count Four lacks merit and should be
dismissed. Brown agrees that Count Two should be vacated, but
has filed a Motion to Stay "pending decisions from the
Fourth Circuit Court of Appeals in United States v.
Ali, 4th Cir. No. 15-433 and United States
v. Mathis, 4th Cir. No. 16-4663(L), which will decide
whether Hobbs Act robberies meet the force clause definition
of 18 U.S.C. § 924(c)(3)(A)." (ECF No. 251, at 2.)
For the reasons set forth below, Brown's § 2255
Motion will be granted with respect to Count Two and denied
with respect to Count Four. Brown's Motion to Stay will
12, 2011, the Government charged Brown by Superseding
Indictment with: conspiracy to commit Hobbs Act robbery
(Count One); using and carrying a firearm in furtherance of a
crime of violence, in violation of 18 U.S.C. § 924(c)
and (2), to wit, the Hobbs Act conspiracy as charged in Count
One (Count Two); attempting to commit Hobbs Act robbery
(Count Three); using and carrying a firearm in furtherance of
a crime of violence, in violation of 18 U.S.C. § 924(c)
and (2), to wit, the attempted Hobbs Act robbery charged in
Count Three (Count Four). (ECF No. 62, at 1-6.) On September
14, 2011, a jury found Brown guilty of the above charges.
(ECF No. 101, at 1.) On January 19, 2012, the Court sentenced
Brown to 612 months of imprisonment on the above charges.
(ECF No. 136, at 2.)
Johnson v. United States 135 S.Ct. 2551 (2015), 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." Id. at
2563. The Johnson Court concluded that
the way the Residual Clause of the ACCA, 18 U.S.C. §
924(e)(2)(B)(ii), defined "violent felony" was
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 (citation omitted).
Subsequently, in Welch v. United States, 136 S.Ct.
1257 (2016), the Supreme Court held that
"Johnson announced a substantive rule [of law]
that has retroactive effect in cases on collateral
review." Id. at 1268.
§ 2255 Motion, Brown asserted that after
Johnson, conspiracy to commit Hobbs Act robbery and
attempted Hobbs Act robbery could no longer qualify as crimes
of violence under 18 U.S.C. § 924(c)(3), and thus, his
conviction for Counts Two and Four must be vacated. Although
Brown was not sentenced pursuant to ACCA, he asserted that
the residual clause of § 924(c) is materially
indistinguishable from the ACCA residual clause (18 U.S.C.
§ 924(e)(2)(B)(ii)) that the Supreme Court in
Johnson struck down as unconstitutionally vague. As
explained below, Brown's challenge to Count Four lacks
merit, but recent decisions from the Supreme Court and the
Fourth Circuit support Brown's challenge to Count Two
where his firearm conviction was predicated upon conspiracy
to commit Hobbs Act robbery.
Brown's Challenge to Count Four Lacks Merit
18 U.S.C. 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 baseline
additional period of imprisonment is five years. 18 U.S.C.
§ 924(c)(1)(A)(i). If the defendant brandishes the
firearm, the additional period of imprisonment increases to
at least seven years. Id. § 924(c)(1)(A)(ii).
And, if the defendant discharges the firearm, the additional
period of imprisonment increases to at least ten years.
Id. § 924(c)(1)(A)(iii).
time of Brown's conviction, the United States could
demonstrate that an underlying offense constitutes a crime of
violence if it established that the offense is a felony and
satisfies one of two requirements. Namely, the statute
defined a crime of violence as any felony:
(A) [that] has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another [(the "Force 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). The Supreme Court recently
invalidated the Residual Clause. United States
v. Davis, 139 S.Ct. 2319, 2336 (2019) (holding that
"§ 924(c)(3)(B) is unconstitutionally vague").
Nevertheless, as explained below, attempted Hobbs Act robbery
qualifies as a crime of violence under the Force Clause.
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" 18 U.S.C. ...