United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
matter is before the court on petitioner's motion to
vacate, set aside, or correct sentence, under 28 U.S.C.
§ 2255 (DE 42), wherein he asserts that his convictions
for violating 18 U.S.C. § 924(c) should be vacated. The
government concedes that petitioner is entitled to §
2255 relief, and requests that the court set this matter for
December 8, 2008, petitioner pleaded guilty to: 1) conspiracy
to commit Hobbs Act Robbery, in violation of 18 U.S.C. §
1951 (count one); 2) brandishing a firearm during and in
relation to a crime of violence and aiding and abetting, in
violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 (count
two); and 3) use and carry a firearm during and in relation
to a crime of violence and aiding and abetting, in violation
of 18 U.S.C. §§ 924(c)(1)(A) and 2 (count three).
On March 30, 2009, the court sentenced petitioner to an
aggregate term of 360 months' imprisonment. Petitioner
filed his first § 2255 motion to vacate, set aside, or
correct his sentence on May 5, 2014, which the court denied.
Petitioner appealed the court's judgment on his first
§ 2255 motion, but the United States Court of Appeals
for the Fourth Circuit declined to issue a certificate of
appealability and dismissed the appeal.
2, 2016, the Fourth Circuit issued order granting petitioner
authorization to file second or successive § 2255
motion, pursuant to 28 U.S.C. §§ 2244, 2255(h).
Petitioner filed the instant § 2255 motion on June 30,
2016, asserting that his convictions under § 924(c)
should be vacated pursuant to Johnson v. United
States, 135 S.Ct. 2551 (2015). On August 9, 2016, the
court granted petitioner's motion to stay the § 2255
proceedings pending the United States Court of Appeals'
decision in United States v. Simms, No. 15-4640 (4th
Cir. 2016). The Fourth Circuit decided Simms on
January 24, 2019, but stayed the mandate pending the United
States Supreme Court's decision in United States v.
Davis, No. 18-431 (2019). The Supreme Court decided
Davis on June 24, 2019. The court entered order
lifting the stay on July 24, 2019, and directed the parties
to file supplemental briefing on the effect of Simms
and Davis on petitioner's motion. On August 23,
2019, the parties filed joint response to the court's
order, wherein the government concedes that petitioner's
§ 924(c) convictions should be vacated and the matter
set for resentencing.
to 18 U.S.C. § 924(c)(1)(A), a person who uses or
carries a firearm, “during and in relation to any crime
of violence or drug trafficking crime” or who possesses
a firearm “in furtherance of any such crime” may
be convicted of violating § 924(c)(1)(A) and the
predicate crime of violence or drug trafficking crime. Upon
conviction, the court must sentence the defendant to at least
five years' imprisonment consecutive to the sentence
imposed for the predicate crime of violence or drug
trafficking crime. § 924(c)(1)(A). Section 924(c)(3)
defines crime of violence as an offense that is a felony and:
(A) has an element the use, attempted use, or threatened use
of physical force against the person or property of another,
(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.
Id. § 924(c)(3)(A)-(B).
Davis, the Supreme Court held that §
924(c)(3)(B) is unconstitutionally vague, relying in part on
Johnson, which held a similar provision in the Armed
Career Criminal Act is unconstitutionally vague. United
States v. Davis, 139 S.Ct. 2319, 2336 (2019). In
Simms, the Fourth Circuit held that conspiracy to
commit Hobbs Act Robbery does not qualify as a crime of
violence under § 924(c)(3)(A). United States v.
Simms, 914 F.3d 229, 233-34 (4th Cir. 2019).
the predicate “crime of violence” supporting
petitioner's § 924(c) convictions is conspiracy to
commit Hobbs Act Robbery. As set forth above, however,
Simms and Davis establish that
petitioner's predicate conviction is not a crime of
violence under § 924(c)(3)(A), and that §
924(c)(3)(B) is unconstitutionally vague. Petitioner's
§ 924(c) convictions therefore are invalid. The
government concedes petitioner is entitled to § 2255
relief in these circumstances, and asks that the court vacate
petitioner's § 924(c) convictions and his sentence
in its entirety.
on the foregoing, the court GRANTS petitioner's motion to
vacate (DE 42), VACATES petitioner's convictions on
counts two and three, and VACATES petitioner's sentence
in its entirety. Petitioner's conviction for conspiracy
to commit Hobbs Act Robbery remains intact. The clerk is
DIRECTED to schedule petitioner for resentencing at the next
available regularly scheduled term of court. The government
is DIRECTED to ensure petitioner's timely writ,
transportation, and housing for the resentencing hearing. The
United States Probation Office is DIRECTED to investigate,
prepare, file under seal, and publish to the appropriate