United States District Court, E.D. Virginia, Richmond Division
E. Payne, United States District Judge.
Langley, Jr., a federal inmate proceeding with counsel, filed
this 28 U.S.C. § 2255 Motion ("§ 2255 Motion,
" ECF No. 141) arguing that his convictions and
sentences 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. 147-2.) Thereafter, the Court ordered further
briefing. In its most recent Supplemental Memorandum, the
Government now argues that Langley's claim lacks merit.
(ECF No. 165.) For the reasons set out below, the § 2255
Motion will be granted and Count Two and its corresponding
sentence will be vacated.
FACTUAL AND PROCEDURAL HISTORY
jury returned a three-count Indictment charging Langley with
conspiracy to commit robbery affecting commerce, in violation
of 18 U.S.C. §§ 1951(a) ("conspiracy to commit
Hobbs Act robbery") (Count One); use and discharge
firearm during a crime of violence causing death of another,
to wit: "Overt Act 3 of the Conspiracy alleged in Count
One, " in violation of 18 U.S.C. § 924(c)(1)(A),
924 (j), and 2 (Count Two); and possessing a firearm in
furtherance of a crime of violence as alleged in Count One,
in violation of 18 U.S.C. § 924(c) and 2 (Count Three).
(Sec. Superseding Indictment 1-7, ECF No. 39.)
March 2, 2012, Langley pled guilty to Counts One and Two and
the Government agreed to dismiss Count Three. (Plea Agreement
¶¶ 1, 12 ECF No. 50.) On July 3, 2012, the Court
sentenced Langley to 240 months of imprisonment on Count One
and life imprisonment on Count Two, to run concurrently. (J.
2, ECF No. 87.)
21, 2016,  Langley filed this § 2255 Motion
arguing that his conviction under 18 U.S.C. § 924(c) in
Count Two must be vacated because of the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). Thereafter, the Government moved to dismiss, arguing
that the § 2255 Motion is barred by the relevant statute
Johnson and Progeny
Johnson, 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, " 135 S.Ct.
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, " 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, Langley 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, that his conviction under Count
Two must be vacated. As explained below, recent decisions
from the Supreme Court and the Fourth Circuit support
Langley's challenge to Count Two where his firearm
conviction was predicated upon conspiracy to commit Hobbs Act
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 Langley'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 ...