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United States v. Smith

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

September 24, 2019

UNITED STATES OF AMERICA,
v.
SAMUEL SMITH

          MEMORANDUM OPINION

          ROBERT E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE.

         Samuel Smith, a federal inmate proceeding with counsel, filed this 28 U.S.C. § 2255 Motion ("§ 2255 Motion, " ECF No. 104) arguing that his firearm conviction is invalid under Johnson v. United States, 135 S.Ct. 2551 (2015). For the reasons set out below, the § 2255 Motion will be granted.

         I. PROCEDURAL HISTORY

         As pertinent here, on July 22, 2008, Smith was charged in a Superseding Indictment with: conspiracy to obstruct, delay, and affect commerce by robbery ("conspiracy to commit Hobbs Act robbery (Count One); the Hobbs Act robbery of Cash Advance Centers of VA in Richmond, Virginia (Count Two); use, carry and brandish a firearm during and in relation to a crime of violence, to wit, the conspiracy to commit Hobbs Act robbery charged in Count One and the Hobbs Act robbery charged in Count Two (Count Three); the Hobbs Act robbery of Check Into Cash, Inc., in Richmond, Virginia (Count Four); using, carrying, and brandishing a firearm during and in relation to a crime of violence to wit, the conspiracy to commit Hobbs Act robbery charged in Count One and the Hobbs Act robbery charged in Count Four (Count Five); the Hobbs Act robbery of the Advance America, Cash Advance Centers in Richmond, Virginia (Count Six); and using, carrying, and brandishing a firearm in furtherance of a crime of violence, and aiding and abetting that offense, to wit, the conspiracy to commit Hobbs Act robbery charged in Count One and the Hobbs Act robbery charged in Count Six (Count Seven). (ECF No. 22, at 1-4.)

         On November 14, 2008, pursuant to a Plea Agreement, Smith pled guilty to Counts One and Seven. (ECF No. 48, at 1-2.) The Plea Agreement specified the predicate crime of violence for the firearm charge in Count Seven as the Hobbs Act conspiracy charged in Count One. Specifically, the relevant portion of the Plea Agreement provided:

The defendant agrees to plead guilty to Counts One and Seven of the pending Superseding Indictment.
b. Count Seven charges that the defendant, in furtherance of a crime of violence for which he may be prosecuted in a court of the United States, to wit: conspiracy to interfere with commerce by threats and violence, did knowingly and unlawfully possess and brandish, and did aid, abet, counsel, command, induce, and cause to be possessed and brandished, firearms in violation of Title 18 United States Code, Section 924 (c).

(Id. at 1.) Critically, the Plea Agreement omitted the Hobbs Act robbery charged in Count Six as a predicate crime of violence for Count Seven.

         On February 18, 2009, the Court entered judgment and sentenced Smith to 240 months on Count One and 120 months on Count Seven, to be served consecutively. (ECF No. 63, at 2.)

         On June 3, 2016, Smith filed this § 2255 Motion arguing that his conviction and sentence on Count Seven must be vacated because of the Supreme Court's decision in 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] 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.

         In his § 2255 Motion, Smith asserts that after Johnson, conspiracy to commit Hobbs Act robbery can no longer qualify as crime of violence under 18 U.S.C. § 924(c)(3), and thus, that his conviction under Count Seven must be vacated. As explained below, recent decisions from the Supreme Court and the Fourth Circuit support Smith's challenge to Count Seven 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 Seven

         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 Smith's conviction, 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 of § 924(c). United States v. Davis, 139 S.Ct. 2319, 2336 (2019) (holding that “§ 924(c)(3)(B) is unconstitutionally vague"). Furthermore, as explained below, the Fourth Circuit has concluded that conspiracy to commit Hobbs Act robbery does not qualify as a crime of violence under ...


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