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United States v. Brown

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

July 30, 2019

UNITED STATES OF AMERICA,
v.
WARREN HAROLD BROWN, Petitioner.

          MEMORANDUM OPINION (GRANTING IN PART AND DENYING IN PART 28 U.S.C. § 2255 MOTION)

          HENRY E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE.

         Warren 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).[1] 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 be denied.

         I. Procedural History

         On July 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.)

         II. Analysis

         In 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.[2] 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.

         In his § 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.

         A. Brown's Challenge to Count Four Lacks Merit

          Title 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).

         At the 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 "Residual Clause")].

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.

         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" 18 U.S.C. ...


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