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United States v. Reed

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

September 23, 2019

UNITED STATES OF AMERICA,
v.
KENNETH A. REED, Defendant.

          MEMORANDUM OPINION (GRANTING § 2255 MOTION)

          HENRY E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE.

         Kenneth A. Reed, a federal inmate proceeding with counsel, filed this 28 U.S.C. § 2255 Motion ("§ 2255 Motion, " ECF No. 94) arguing that his firearm convictions are invalid under Johnson v. United States, 135 S.Ct. 2551 (2015). For the reasons discussed below, the § 2255 Motion will be granted.

         I. PROCEDURAL HISTORY

         On January 15, 2010, the Government charged Reed by Criminal Information with one count of conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951(a) ("conspiracy to commit Hobbs Act robbery") (Count One), and possessing and brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) and (2), to wit, the conspiracy to commit Hobbs Act robbery charged in Count One (Count Two). (Crim. Information 1-2, ECF No. 31.) That same day, Reed agreed to waive prosecution by indictment (ECF No. 33) and pled guilty to Counts One and Two. (ECF No. 34, at 1-2.)

         On April 27, 2010, the Court sentenced Reed to 180 months of incarceration on Count One and 180 months of incarceration on Count Two to be served consecutively. (J. 2, ECF No. 57.)

         On June 20, 2016, Reed filed his § 2255 Motion arguing that his conviction and sentence in Count Two must be vacated in light of Johnson v. United States, 135 S.Ct. 2551 (2015). Initially, the Government responded by moving to dismiss the § 2255 Motion on the ground that it was barred by the statute of limitations. As discussed below, after the Court required further briefing in light of recent decisions from the Fourth Circuit and the Supreme Court, the Government abandoned that defense.

         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.[1] 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, Reed asserts that after Johnson, conspiracy to commit Hobbs Act robbery can no longer qualify as a crime of violence under 18 U.S.C. § 924(c)(3), and thus, his conviction for Count Two must be vacated. As explained below, recent decisions from the Supreme Court and the Fourth Circuit support Reed's challenge to Count Two where his firearm conviction was predicated upon conspiracy to commit Hobbs Act robbery.

         A. Conspiracy to Commit Hobbs Act Robbery Cannot Serve as a Valid Predicate Crime of Violence for the § 924(c) Charge in Count Two

         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 Reed's convictions, 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").

         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. § 1951(a). That statute defines "robbery" as

the unlawful taking or obtaining of personal property from the person or in the presence of another, against his [or her] will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his [or her] person or property, or property in his [or her] custody or possession, or the person or property of a relative or member of his ...

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