United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge.
Acevedo, a federal inmate proceeding with counsel, filed this
28 U.S.C. § 2255 Motion ("§ 2255 Motion,"
ECF No. 124) arguing that his conviction and sentence are
invalid under Johnson v. United States, 135 S.Ct.
2551 (2015). The Government filed a Motion to Dismiss the
§ 2255 Motion contending that it is barred by the
relevant statute of limitations. (ECF No. 130.) As discussed
below, the Court finds that Acevedo's Johnson
claim lacks merit and may be dismissed on that ground.
FACTUAL AND PROCEDURAL HISTORY
jury returned a three-count Indictment charging Acevedo with
interference with commerce by threats and violence and aiding
and abetting that offense, in violation of 18 U.S.C.
§§ 1951 (a) and 2 ("Hobbs Act robbery")
(Count One), use and carry of a firearm during and in
relation to the crime of violence as alleged in Count One and
aiding and abetting that offense, in violation of 18 U.S.C.
§§ 924 (c) (1) (A) and 2 (Count Two); and, stealing
firearms from a licensed firearms dealer, in violation of 18
U.S.C. §§ 922 (u) and 2. (Indictment 1-2, ECF No.
1.) On June 15, 2005, Acevedo pled guilty to Counts One and
Two of the Indictment. (Plea Agreement ¶ 1, ECF No. 27.)
On September 20, 2005, the Court sentenced Acevedo to
forty-six months of incarceration on Count One and
eighty-four months of incarceration on Count Two to be served
consecutively to Count One. (J. 2, ECF No. 73.)
filed no appeal. Counsel indicates that, on November 20,
2014, Acevedo was released into Immigrations & Customs
Enforcement, where he remained as of the date of filing his
§ 2255 Motion. (§ 2255 Mot. 3.) Neither party
indicates whether Acevedo remains in custody or whether he
has been removed from the country at this
9, 2016, Acevedo filed his § 2255 Motion arguing that
his conviction under 18 U.S.C. § 924 (c) in Count Two
must be vacated in light of the Supreme Court's decision
in Johnson v. United States, 135 S.Ct. 2551 (2015).
Thereafter, the Government moved to dismiss, arguing that the
§ 2255 Motion is barred by the relevant statute of
28 U.S.C. § 2255 (f) (1), Acevedo was required to file
any 28 U.S.C. § 2255 motion within one year after his
conviction became final. Accordingly, absent a belated
commencement of the limitation period, Acevedo's §
2255 Motion is untimely. Acevedo contends that he is entitled
to a belated commencement of the limitation period under 28
U.S.C. § 2255 (f) (3). Acevedo was convicted of using
and carrying a firearm during the commission of a crime of
violence, to wit, Hobbs Act robbery and aiding and abetting
that offense, in violation of 18 U.S.C. §§ 924 (c)
and 2. The right which is at the heart of his argument (that
the residual clause of § 924 (c) is unconstitutionally
vague) simply was not a right that was announced in
Johnson. Rather, the Supreme Court's holding in
Johnson only addressed the residual clause of ACCA.
As the Fourth Circuit has observed, although "the
Supreme Court held unconstitutionally vague the [residual
clause in ACCA], . . . the [Supreme] Court had no occasion to
review . . . the residual clause [of § 924 (c)]."
United States v. Fuertes, 805 F.3d 485, 499 n.5 (4th
Cir. 2015). Thus, Acevedo's contention that §
924(c)'s residual clause is unconstitutionally vague was
not a right announced by the Supreme Court in
Johnson. However, the Supreme Court's decision
in United States v. Davis, 139 S.Ct. 2319 (2019),
call into question the timeliness of Acevedo's §
2255 Motion. The Court need not engage in further discussion
of the timeliness of Acevedo's § 2255 Motion because
it can be dismissed for lack of merit.
Acevedo's Claim Lacks Merit.
Johnson claim plainly lacks merit. See United
States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994)
(noting that a district court may summarily dismiss a §
2255 motion where "files, and records 'show
conclusively that the movant is not entitled to relief"
(quoting United States v. Day, 969 F.2d 39, 41-42
(3d Cir. 1992))). Acevedo contends that, after
Johnson, the offense of Hobbs Act robbery and aiding
and abetting that offense can no longer qualify as crimes of
violence under 18 U.S.C. § 924(c)(3), and thus, his
conviction for Count Two must be vacated.
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) .
recently, the United States could demonstrate that an
underlying offense constituted a crime of violence if it
established that the offense was a felony and satisfied one
of two requirements. Namely, the statute defines 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 ...