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United States v. Douglas

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

September 24, 2019

UNITED STATES OF AMERICA,
v.
JAQUAN C. DOUGLAS, Defendant.

          MEMORANDUM OPINION (GRANTING § 2255 MOTION)

          HENRY E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE.

         Jaquan C. Douglas, a federal inmate proceeding with counsel, filed this successive 28 U.S.C. § 2255 Motion ("§ 2255 Motion, " ECF No. 52) arguing that his firearm convictions are invalid under Johnson v. United States, 135 S.Ct. 2551 (2015).[1] The Government initially filed a Motion to Dismiss the § 2255 Motion contending that it is barred by the relevant statute of limitations. (ECF No. 56.) Thereafter, the Court ordered further briefing. In its most recent Supplemental Memorandum, the Government now argues that Douglas's claim is procedurally defaulted and barred from review here. (ECF No. 64, at 6-12.) The Government also asks in the alternative that, if the Court "were to disagree with the government's arguments about the validity of the defendant's § 924(c) conviction on Count Three and were to vacate that conviction, it should order a resentencing at which defendant and the government can urge an appropriate new sentence." (Id. at 12.) For the reasons discussed below, the § 2255 Motion will be granted.

         I. PROCEDURAL HISTORY

         On August 26, 2013, Douglas was charged by Criminal Information with: conspiracy to obstruct, delay, and affect, and attempt to obstruct, delay, and affect commerce by robbery by means of actual and threatened force and violence, in violation of 18 U.S.C. § 1951(a) ("conspiracy to commit Hobbs Act robbery") (Count One); aiding and abetting credit union robbery, in violation of U.S.C. §§ 2113(a) and 2 (Count Two); discharging a firearm in furtherance of a crime of violence, to wit, conspiracy to commit Hobbs Act robbery "as charged in in Count One, Overt Act 2, of this criminal information, " in violation of 18 U.S.C. § 924(c) and 2 (Count Three); and aiding and abetting brandishing a firearm in furtherance of a crime of violence, to wit, aiding and abetting credit union robbery, as charged in Count Two (Count Four). (ECF No. 30, at 1-5.)

         On September 13, 2013, Douglas pled guilty to Counts One through Four. (ECF No. 34, at 1-2.)

         On December 17, 2013, the Court sentenced Douglas to twelve months on Counts One and Two to be served concurrently, 120 months on Count Three to be served consecutively to Counts One and Two, and 300 months on Count Four to be served consecutively to Counts One, Two, and Three. (J. 2, ECF No. 46.) Douglas did not appeal.

         On June 24, 2016, Douglas filed his § 2255 Motion arguing that his conviction and sentence in Count Three 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.[2] 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, Douglas 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 Three must be vacated.[3] As explained below, recent decisions from the Supreme Court and the Fourth Circuit support Douglas's challenge to Count Three 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 Three

         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 Douglas'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 ...

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