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 53), wherein she asserts the court should
vacate her conviction for brandishing a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c). The government concedes that petitioner is
entitled to § 2255 relief, and requests that the court
set this matter for resentencing.
14, 2013, petitioner pleaded guilty to: 1) conspiracy to
commit Hobbs Act Robbery, in violation of 18 U.S.C. §
1951 (count one), and 2) brandishing a firearm in furtherance
of a crime of violence and aiding and abetting, in violation
of 18 U.S.C. §§ 924(c)(1)(A) and 2 (count two). On
December 20, 2013, the court sentenced petitioner to an
aggregate term of 192 months' imprisonment.
31, 2016, petitioner filed the instant motion to vacate, set
aside, or correct her sentence pursuant to 28 U.S.C. §
2255. Petitioner asserts that her § 924(c) conviction
should be vacated pursuant to Johnson v. United
States, 135 S.Ct. 2551 (2015). On July 8, 2016, the
court granted respondent'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 18, 2019, and directed the parties
to file supplemental briefing addressing the effect of
Simms and Davis on petitioner's motion.
Petitioner filed supplemental response on August 19, 2019,
and the government filed its response on August 29, 2019. The
government concedes that petitioner's § 924(c)
conviction should be vacated and the matter set for
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) conviction is conspiracy to commit Hobbs Act
Robbery. As set forth above, Simms and
Davis establish that conspiracy to commit Hobbs Act
Robbery no longer qualifies as a crime of violence under
§ 924(c)(3)(A), and that § 924(c)(3)(B) is
unconstitutionally vague. Petitioner's § 924(c)
conviction therefore is invalid. The government concedes
petitioner is entitled to § 2255 relief in these
circumstances, and asks that the court vacate
petitioner's § 924(c) conviction and her sentence in
on the foregoing, the court GRANTS petitioner's motion to
vacate (DE 53), VACATES petitioner's conviction on count
two, 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 parties an ...