United States District Court, E.D. Virginia, Alexandria Division
M. BRINKEMA UNITED STATES DISTRICT JUDGE.
the Court is Eric Sylvester Dorsey's ("Dorsey"
or "movant") motion filed under 28 U.S.C. §
2255, in which he seeks to have his conviction for violating
18 U.S.C. § 924(c) vacated in light of recent Supreme
Court precedent. For the reasons stated below, Dorsey's
§ 2255 motion will be dismissed.
4, 1999, a federal grand jury in the Eastern District of
Virginia returned a 12-count indictment charging Dorsey and
three codefendants with various offenses related to an
alleged robbery scheme. Specifically, Dorsey was charged with
conspiracy to commit robbery in violation of 18 U.S.C. §
371 (Count 1); robbery of a U.S. Post Office in violation of
18 U.S.C. § 2114(a) (Count 6); using a firearm during
and in relation to a crime of violence in violation of 18
U.S.C. § 924(c) (Count 7); possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1)
(Count 10); and possession of a sawed-off shotgun in
violation of 26 U.S.C. § 5861(c) (Count 11). The
indictment explicitly identified the post office robbery
charged in Count 6 as the predicate crime of violence on
which the § 924(c) charge in Count 7 was based.
See Indictment [Dkt. No. 14] 15.
August 17, 1999, after a four-day jury trial, the jury
convicted Dorsey of all five counts. On November 19, 1999, the
Court sentenced Dorsey to a total of 322 months'
incarceration, consisting of concurrent sentences of 60
months, 262 months, 180 months, and 120 months of
imprisonment as to Counts 1, 6, 10, and 11, respectively, to
be followed by a 60-month consecutive sentence as to Count 7.
Dorsey was also sentenced to five total years of supervised
release and ordered to pay restitution and $500 in special
assessments. Dorsey appealed his convictions and sentence,
the Fourth Circuit affirmed, and the Supreme Court denied
15, 2016, the Office of the Federal Public Defender was
appointed to represent Dorsey for purposes of filing a motion
seeking relief based on Johnson v. United States (Johnson
II), 135 S.Ct. 2551 (2015), in which the Supreme Court
held that the "residual clause" of 18 U.S.C. §
924(e)(2)'s definition of "violent felony" is
unconstitutionally vague, see Id. at 2557-63.
Dorsey's § 2255 motion argues that his § 924(c)
conviction (Count 7) should be vacated because the predicate
offense no longer qualifies as a crime of violence. In
October 2016, his § 2255 motion was stayed to await
further guidance from the Supreme Court and the Fourth
Circuit. On June 24, 2019, the Supreme Court held that the
residual clause of § 924(c)(3)'s definition of
"crime of violence" is also unconstitutionally
vague. See United States v. Davis, 139 S.Ct. 2319,
2336 (2019). In the wake of Davis, the stay
was lifted, and the parties were ordered to supplement their
briefing on whether Dorsey is entitled to § 2255 relief
and, if so, what form such relief should take. The matter is
now ripe for decision.
924(c) prohibits the use, carrying, or brandishing of a
firearm "during and in relation to any crime of
violence." 18 U.S.C. § 924(c)(1)(A). It further
defines "crime of violence" as any felony offense
that (A) "has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another" or (B) "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." Id. § 924(c)(3).
Subsection (A) of the definition is known as the
"force" clause; subsection (B), the
Davis, there is no dispute that the residual clause
is unconstitutionally vague and cannot be used to support
Dorsey's § 924(c) conviction. What remains is the
question whether the predicate offense underlying Count
7-post office robbery in violation of § 2114(a)-
qualifies as a "crime of violence" under §
924(c)'s force clause. If it so qualifies, Dorsey's
conviction remains valid, and his § 2255 motion must be
dismissed. If not, the conviction must be vacated.
case law sets forth the methodology the Court must employ in
answering that question. To determine whether a given offense
qualifies as a crime of violence under the force clause,
courts "use an inquiry known as the
'categorical' approach," in which they
"look to whether the statutory elements of the offense
necessarily require the use, attempted use, or threatened use
of physical force" and "consider only the crime as
defined, not the particular facts in the case."
United States v. Simms, 914 F.3d 229, 233 (4th Cir.
2019), petition for cert, filed. No. 18-1338 (U.S.
Apr. 24, 2019). Although a court employing the categorical
approach may not consider the defendant's actual conduct,
where "the criminal statute is 'divisible'-that
is, [where] it lists 'multiple, alternative elements, and
so effectively creates several different... crimes'-the
Court may look to 'a limited class of documents, such as
indictments and jury instructions, to determine which
alternative' served as the predicate offense."
Larode v. United States, 356 F.Supp.3d 561, 570
(E.D. Va. 2019) (second alteration in original) (quoting
Descamps v. United States, 570 U.S. 254, 257
(2013)); see also United States v. Gomez, 690 F.3d
194, 198 (4th Cir. 2012) (instructing that the modified
categorical approach should be used "for the sole
purpose of determining which part of the statute the
post office robbery offense at issue in Dorsey's §
924(c) conviction is defined as follows:
A person who assaults any person having lawful charge,
control, or custody of any mail matter or of any money or
other property of the United States, with intent to rob,
steal, or purloin such mail matter, money, or other property
of the United States, or robs or attempts to rob any such
person of mail matter, or of any money, or other property of
the United States, shall, for the first offense, be
imprisoned not more than ten years; and if in effecting or
attempting to effect such robbery he wounds the person having
custody of such mail, money, or other property of the United