United States District Court, W.D. Virginia, Abingdon Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States; Nancy C. Dickenson,
Assistant Federal Public Defender, Abingdon, Virginia, for
P. Jones United States District Judge
David Clarence Ward, a federal inmate, has filed a motion to
set aside or vacate his sentence pursuant to 28 U.S.C. Â§
2255. For the following reasons, I will deny the motion and
grant the United States' Motion to Dismiss.
defendant was sentenced by this court on May 2, 2003, after
pleading guilty to possession of a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c). The
predicate offense for his § 924(c) conviction is bank
robbery by force and violence, in violation of 18 U.S.C.
§ 2113(a), (d). He was sentenced to 300 months
24, 2016, Ward filed a pro se motion pursuant to 28 U.S.C.
§ 2255. The court appointed the Federal Public Defender
to represent him, who filed an amended § 2255 motion on
Ward's behalf. It was contended that Ward's sentence
was invalid based upon the holdings of the Supreme Court in
Johnson v. United States, 135 S.Ct. 2551 (2015)
(invalidating the residual clause of the “crime of
violence” definition in the Armed Career Criminal Act
(“ACCA”) as unconstitutionally vague), and
Welch v. United States, 136 S.Ct. 1257 (2016)
(holding that Johnson applied retroactively to
collateral review). The United States filed a Motion to
Dismiss, which made two arguments, the first being that even
if the residual clause of § 924(c) is constitutionally
infirm, the Fourth Circuit has held that bank robbery by
force or violence falls within the scope of §
924(c)(3)(A) rather than the residual clause. Second, the
government asserted that even if § 924(c)'s
“crime of violence” definition is vague in its
totality, Ward's Plea Agreement forecloses automatic
relief because the government agreed to dismiss the bank
robbery charge in return for the guilty plea.
§ 2255 motion was held in abeyance while the Supreme
Court and the Fourth Circuit heard related vagueness
challenges. See Sessions v. Dimaya, 138 S.Ct. 1204
(2018) (invalidating the residual clause of the “crime
of violence” definition in the Immigration and
Nationality Act's definition of an aggravated felony,
which originated from § 16(b)'s definition);
United States v. Simms, 914 F.3d 229, 252 (4th Cir.
2019) (holding that the residual clause of the “crime
of violence” definition in § 924(c)(3)(B) was
unconstitutionally vague, but noting that § 924(c)(3)(A)
does not suffer from the same vagueness concerns). As
relevant to Ward's § 2255 motion, the Supreme Court
recently invalidated the residual clause of § 924(c).
United States v. Davis, 139 S.Ct. 2319, 2324 (2019).
The Davis Court reasoned that § 924(c)(3)(B)
suffered from the same unconstitutional vagueness as the
ACCA's residual clause. The United States has filed a
Supplemental Response to address the applicability of the
Davis decision to Ward's § 2255 motion, and
the matter is now ripe for decision.
“crime of violence” is defined in §
924(c)(3) as a felony offense that “has as an element
the use, attempted use, or threatened use of physical force
against the person or property of another.” 18 U.S.C.
§ 924(c)(3)(A). Prior to Davis, the residual
clause in § 924(c)(3) encompassed any felony offense
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.” 18
U.S.C. § 924(c)(3)(B). The first clause of the statute
is referred to as the “force” clause, while the
second clause is known as the “risk of force”
clause and was found to be unconstitutionally vague in
contends that his § 924(c) conviction rests on the
invalidated residual clause, so that his conviction must be
set aside. However, the government is correct that the Fourth
Circuit has determined that bank robbery by force or violence
qualifies as a crime of violence pursuant to §
924(c)(3)(A) rather than the residual clause. United
States v. McNeal, 818 F.3d 141, 152-53, 157 (4th Cir.
2016) (holding that the crime of federal bank robbery, which
may be committed by “force and violence, or by
intimidation, ” qualifies as a crime of violence under
the force clause, because the statute necessarily
“involves the threat to use [physical] force.”),
cert. denied, 137 S.Ct. 164 (2016). As such,
Ward's § 924(c) conviction is not disturbed by
Davis, because his predicate offense of federal bank
robbery falls under § 924(c)(3)(A) rather than the
invalidated residual clause.
these reasons, the defendant's Motion to Vacate, Set
Aside, or Correct Sentence will be denied based upon the
United States' Motion to Dismiss. A separate final order
will be entered forthwith.
 No. reply has been filed to the
 The Fourth Circuit recently reaffirmed
its reasoning and holding in McNeal in determining
that Hobbs Act robbery qualifies as a crime of violence
pursuant to § 924(c)(3)(A) rather than the residual
clause. United States v. Mathis, 932 F.3d 242, 266
(4th Cir. 2019).
 I do not address the United
States' argument that Ward's Plea Agreement