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United States v. Byrd

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

September 10, 2019

UNITED STATES OF AMERICA,
v.
KHALIEF BYRD, Petitioner.

          MEMORANDUM OPINION

          ROBERT E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.

         Khalief Byrd, a federal inmate proceeding with counsel, filed this 28 U.S.C. § 2255 Motion ("§ 2255 Motion," ECF No. 57) 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. 62.) For the reasons set out below, Byrd's Johnson claim lacks merit and will be dismissed on that ground.

         I. FACTUAL AND PROCEDURAL HISTORY

         A grand jury returned a four-count Indictment charging Byrd with interference with commerce by threats and violence, in violation of 18 U.S.C. §§ 1951(a} ("Hobbs Act robbery"} (Count One); use, carry, display, brandish, and possess a firearm during and in relation to the crime of violence as alleged in Count One, in violation of 18 U.S.C. §§ 924(c)(Count Two); attempted Hobbs Act robbery (Count Three); and, use, carry, display, brandish, and possess a firearm during and in relation to the crime of violence as alleged in Count Three. (Indictment 1-4, ECF No. 10.) On November 29, 2012, Byrd pled guilty to Counts One and Two of the Indictment. (Plea Agreement ¶ 1, ECF No. 24.) On February 22, 2013, the Court sentenced Byrd to one hundred and eighty 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. 46.)

         On June 17, 2016, Byrd filed this § 2255 Motion arguing that his conviction under 18 U.S.C. § 924(c) in Count Two must be vacated because 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 limitations. It is not necessary to address the timeliness of Byrd's § 2255 Motion because it lacks substantive merit.

         II. ANALYSIS

         Byrd's Johnson claim plainly lacks merit. It is settled that a district court may summarily dismiss a § 2255 motion "if it plainly appears from the motion . . . and the record of prior proceedings that the moving party is not entitled to relief." Rules Governing Section 2255 Proceedings 4(b); see United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994); Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970) ("Where the files and records conclusively show that the prisoner is entitled to no relief, summary dismissal is appropriate.")

         In 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, because the residual clause of the ACCA, 18 U.S.C. § 924(e) (2) (B) (ii), defined "violent felony" in an unconstitutionally vague manner for the reason that the residual clause encompassed "conduct that presents a serious potential risk of physical injury to another." 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.

         Byrd contends that after Johnson, the offense of Hobbs Act robbery can no longer qualify as a crime of violence under 18 U.S.C. § 924(c)(3), and thus, that his conviction under Count Two must be vacated. Byrd is incorrect.

         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 Byrd's conviction, 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 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, or§ 924(c)(3)(B), in United States v. Davis,139 S.Ct. 2319, 2339 (2019). However, Hobbs Act robbery remains a qualifying crime of violence under the Force Clause. United States v. Mathis, ___F.3d ___, Nos. 16-4633, 16-4635, 16-4637, 16-4641, 16-4837, 16-4838, 2019 WL 3437626, at *16 (4th Cir. July 31, 2019) (citations omitted) (holding that "Hobbs Act robbery constitutes a ...


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