United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING § 2255
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE.
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). 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.
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.)
September 13, 2013, Douglas pled guilty to Counts One through
Four. (ECF No. 34, at 1-2.)
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.
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.
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, 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. 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
Conspiracy to Commit Hobbs Act Robbery Cannot Serve
As a Valid Predicate Crime of Violence for the § 924(c)
Charge in Count Three
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 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 ...