United States District Court, E.D. North Carolina, Western Division
EARL BRITT SENIOR U.S. DISTRICT JUDGE
matter is before the court on petitioner's 28 U.S.C.
§ 2255 motion. (DE # 57.)
2007, petitioner pled guilty to conspiracy to commit Hobbs
Act robbery in violation of 18 U.S.C. § 1951
(“Count One”) and aiding and abetting the
brandishing of a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. §§ 2 and 924(c)
(“Count Three”). The court sentenced petitioner
to a total term of 276 months imprisonment. Petitioner did
not appeal. In 2012, petitioner filed his first § 2255
motion, (DE # 35), which the court dismissed on the
government's motion, (DE # 41). In May 2016, petitioner
filed a second § 2255 motion, (DE # 45), which the court
dismissed because he had not obtained prior authorization
from the Fourth Circuit Court of Appeals, (DE # 47).
2016, after obtaining the Fourth Circuit Court of
Appeals' authorization and with the assistance of
court-appointed counsel, petitioner filed this § 2255
motion. Petitioner challenges his conviction on Count Three
and his sentence. First, he claims that “[i]n light of
. . . [Johnson v. United States, 125 S.Ct. 2551
(2015)], Hobbs Act conspiracy no longer qualifies as a
‘crime of violence' within the meaning of Section
924(c) and, therefore, may not serve as a predicate for that
offense.” (Mot., DE # 57, at 4.) Second, again relying
on Johnson, he claims his sentence is
unconstitutional because his prior conviction for conspiracy
to commit robbery with a dangerous weapon is not a valid
predicate offense for the career offender enhancement under
the Sentencing Guidelines, U.S.S.G. § 4B1.2.
(Id. at 5.) He requests that the court vacate his
conviction on Count Three and resentence him. (Id.
government's unopposed motion, the court placed this
proceeding in abeyance pending the decisions in Beckles
v. United States, 137 S.Ct. 886 (2017); United
States v. Simms, 914 F.3d 229 (4th Cir. 2019) (en banc),
and United States v. Walker, 934 F.3d 375 (4th Cir.
2019). (DE # 62.) After those decisions issued, the court
directed the parties to file supplemental briefs regarding
the § 2255 motion. (8/27/19 Text Order.)
supplemental brief, the government argues because
petitioner's conviction on Cou Three was predicated on a
“crime of violence”-the Hobbs Act
robbery charged in Count Two, and not the Hobbs Act
conspiracy charged in Count One, the conviction on
Count Three is vali (DE # 71, at 3-4.) The government also
argues petitioner's challenge to his career offender
status fails based on Beckles, among other reasons.
(Id. at 4-5.) It maintains petitioner's §
2255 motion should be dismissed. (Id. at 6.)
Petitioner moves to extend the time to file his supplemental
brief. (DE # 70.)
to petitioner's first claim, a “crime of
violence” for purposes of § 924(c) is defined as
an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(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.
18 U.S.C. § 924(c)(3). The Supreme Court recently held
that the “residual clause” of § 924(c)(3)(B)
is unconstitutionally vague. United States v. Davis,
139 S.Ct. 2319, 2336 (2019). However, “Hobbs Act
robbery constitutes a crime of violence under the force
clause of Section 924(c)[(3)(A)].” United States v.
Mathis, 932 F.3d 242, 266 (4th Cir. 2019) (footnote and
citations omitted). Therefore, because Hobbs Act robbery,
which served as the predicate offense for petitioner's
conviction on Count Three, remains a crime of violence under
§ 924(c), petitioner is not entitled to relief under
§ 2255 on his first claim.
petitioner's second claim, in Beckles,
“the Supreme Court concluded that the [Sentencing]
Guidelines are not subject to a vagueness challenge under the
Due Process Clause.” United States v. Lee, 855
F.3d 244, 246 (4th Cir. 2017) (citing Beckles, 137
S.Ct. at 892). Thus, petitioner's reliance on
Johnson to support his second claim is misplaced,
and petitioner's second claim fails. See id. at
247 (“Johnson's vagueness holding does not
apply to the residual clause in § 4B 1.2(a)(2).”),
Because further briefing on the issues is unnecessary,
petitioner's motion for an extension of time is DENIED.
The § 2255 motion is DISMISSED. The court finds that
petitioner has not made “a substantial ...