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United States v. Johnson

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

September 27, 2019

UNITED STATES OF AMERICA,
v.
CORDARRELL A. JOHNSON, Defendant.

          MEMORANDUM OPINION (GRANTING § 2255 MOTION)

          HENRY E. HUDSON, UNITED STATES DISTRICT JUDGE.

         Cordarrell A. Johnson, a federal inmate proceeding pro se, filed this 28 U.S.C. § 2255 Motion ("§ 2255 Motion, " ECF No. 93) arguing that his firearm convictions are invalid under Johnson v. United States, 135 S.Ct. 2551 (2015). For the reasons discussed below, the § 2255 Motion will be granted.

         I. PROCEDURAL HISTORY

         On January 19, 2010, a grand jury charged Johnson in a nine count Superseding Indictment. The two counts relevant here are possessing and brandishing a firearm in furtherance of a crime of violence, and aiding and abetting that offense, to wit, conspiracy to interfere with commerce by force, in violation of 18 U.S.C. § 1951(a) ("conspiracy to commit Hobbs Act robbery") as charged in Count One, and interference with commerce by force ("Hobbs Act robbery"), as charged in Count Six (Count Seven); and, a second count of possessing and brandishing a firearm in furtherance of a crime of violence, and aiding and abetting that offense, to wit, conspiracy to commit Hobbs Act robbery as charged in Count One, and interference with commerce by force, as charged in Count Eight (Count Nine). (Super. Indictment 8-9, ECF No. 37.)[1]

         On January 29, 2010, Johnson pled guilty to Counts Seven and Nine. (ECF No. 39, at 1-2.) The Plea Agreement stated as follows:

The defendant agrees to plead guilty to Counts Seven and Nine [of] the pending Superseding Indictment.
a. 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)....
b. Count Nine 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. ¶ 1 (emphasis added).) Critically, the Plea Agreement omitted the substantive Hobbs Act robbery crimes charged in Counts Six and Eight as predicates for the § 924(c) charges in Counts Seven and Nine.

         On May 3, 2010, the Court sentenced Johnson to 84 months of incarceration on Count Seven and 300 months of incarceration on Count Nine to be served consecutively. (J. 2, ECF No. 61.)

         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, Johnson 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 convictions for Counts Seven and Nine must be vacated. Although Johnson was not sentenced pursuant to ACCA, he asserted that the residual clause of § 924(c) is materially indistinguishable from the ACCA residual clause (18 U.S.C. § 924(e)(2)(B)(ii)) that the Supreme Court in Johnson struck down as unconstitutionally vague. As explained below, recent decisions from the Supreme Court and the Fourth Circuit support Johnson's challenges to both Counts Seven and Nine because his firearm convictions were predicated upon conspiracy to commit Hobbs Act robbery.

         A. Conspiracy to Commit Hobbs Act Robbery Cannot Serve as Valid Predicate Crimes of Violence for Counts Seven and Nine

         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 Johnson'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 [(the "Residual Clause")].

Id. § 924(c)(3). The Supreme Court recently invalidated the Residual Clause. United States v. Davis, 139 S.Ct. 2319, 2336 (2019) (holding that "§ 924(c)(3)(B) is unconstitutionally vague").

         A defendant is guilty of Hobbs Act robbery if he or she "obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery ... or attempts or conspires so to do ...." 18 U.S.C. ...


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