United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
White, a federal inmate proceeding with counsel, filed this
28 U.S.C. § 2255 Motion ("§ 2255 Motion,
" ECF No. 48) 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 in part and denied in part.
3, 2008, White was charged in a three-count Superseding
Indictment. (ECF No. 10.) Count One charged White with
conspiracy to obstruct, delay, and affect commerce by robbery
("conspiracy to commit Hobbs Act robbery").
(Id. at 1.) Count Two charged that on October 20,
2007, White used, carried, and brandished 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 "interference with commerce by force."
(Id. at 1-2.) Count Three charged that on November
1, 2007, White used, carried, and brandished a firearm during
and in relation to a crime of violence, to wit, conspiracy to
commit Hobbs Act robbery charged in Count One "and
interference with commerce by force." (Id. at
9, 2008, pursuant to a Plea Agreement, White pled guilty to
Counts One and Three. (ECF No. 12, at 1; ECF No. 14.) The
Plea Agreement specified that the predicate crime of violence
for the firearm charge in Count Three was Hobbs Act
conspiracy. Specifically, the relevant portion of the Plea
The defendant agrees to plead guilty to Counts One and Three
of the pending Superseding Indictment.
b. Count Three 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,
(Id. at 1.) Critically, the Plea Agreement omitted
any reference to a non-conspiracy Hobbs Act robbery as a
predicate crime of violence for Count Three.
September 12, 2008, the Court sentenced White to 240 months
on Count One and 240 months on Count Three, to be served
consecutively. (ECF No. 23, at 2.)
WHITE'S § 2255 MOTION
27, 2016, White, by counsel, filed his § 2255 Motion
wherein he contends that, because of Johnson v. United
States, 135 S.Ct. 2551 (2015) his § 924(c)
conviction in Count Three must be vacated (Claim One) and his
designation as a career offender under the Sentencing
Guidelines must be vacated (Claim Two).
Two is easily dismissed. "[T]he Supreme Court concluded
that the Guidelines are not subject to a vagueness challenge
under the Due Process Clause. . . . Johnson's
vagueness holding does not apply to the residual clause in
[USSG] § 4Bl.2(a)(2)." United States v.
Lee, 855 F.3d 244, 246-47 (4th Cir. 2017) (citing
Beckles v. United States, 137 S.Ct. 886, 892
(2017)). Accordingly, Claim Two will be dismissed.
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
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,
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.
§ 2255 Motion, White 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 Three
must be vacated. As explained below, recent decisions from
the Supreme Court and the Fourth Circuit support White's
challenge to Count Three 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 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 White'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 ...