United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING § 2255
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.)
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.)
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.
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. 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.
§ 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.
Conspiracy to Commit Hobbs Act Robbery Cannot Serve as a
Valid Predicate Crime of Violence for the § 924(c)
Charge in Count Two
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).
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
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").
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 ...