United States District Court, E.D. North Carolina, Southern Division
MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on petitioner's motion to
vacate under 28 U.S.C. Â§ 2255, [DE #156], and motion for
extension of time to file supplemental briefing, [DE #177].
November 9, 2009, pursuant to a signed Memorandum of Plea
Agreement, petitioner pled guilty to bank robbery, in
violation of 18 U.S.C. § 2113(a) (Count One);
interference with commerce by robbery, and aiding and
abetting, in violation of 18 U.S.C. §§ 1951 and 2
(Count Six); and use of 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 Seven).
Petitioner was sentenced by this court to a total term of
imprisonment of 155 months on February 9, 2010. Petitioner
did not appeal. Therefore, petitioner's judgment became
final at the entry of this court's judgment on February
18, 2010, "the date upon which [petitioner] declined to
pursue further direct appellate review." United
States v. Sanders, 247 F.3d 139, 142 (4th Cir. 2001).
20, 2016, petitioner, proceeding pro se, filed the
instant motion to vacate pursuant to 28 U.S.C. § 2255,
[DE #156], arguing that neither armed bank robbery, (Count
One) nor Hobbs Act Robbery (Count Six), qualifies as a crime
of violence to support his conviction under 18 U.S.C. §
924(c) in light of the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015)
Petitioner also argues his Sixth Amendment rights were
violated because his sentence was increased for brandishing a
firearm, rather than using and carrying a firearm, although
he argues he was only subject to a five year term of
imprisonment "based upon the indictment, conviction, and
plea." [DE #156 at 5 and DE #156-1 at 2] .
Supreme Court recently invalidated the residual clause of the
crime of violence definition under 18 U.S.C. §
924(c)(3)(B). United States v. Davis, 139 S.Ct. 2319, 2323-24
(2019). The precise question remaining before the court is
whether Hobbs Act Robbery is a crime of violence under the
force clause of 18 U.S.C. § 924(c)(3)(A). The Fourth
Circuit has recently decided this issue. United States v.
Mathis, 932 F.3d 242, 266 (4th Cir. 2019)
("Accordingly, we conclude that Hobbs Act robbery
constitutes a crime of violence under the force clause of
Section 924(c).") (citing United States v.
Garcia-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018);
United States v. Hill, 890 F.3d 51, 60 (2d Cir.
2018); United States v. Rivera, 847 F.3d 847, 849
(7th Cir. 2017); In re Fleur, 824 F.3d 1337, 1340-41 (11th
in light of Mathis, defendant's first claim is
claims his plea agreement and indictment did not encompass
brandishing a firearm. Petitioner's indictment charged as
Count Seven that he, with others, "did use and carry a
firearm, and did possess said firearm in furtherance of
[Count Six], and did aid and abet each other in so doing,
" in violation of 18 U.S.C. §§ 924(c)(1)(A)
and 2. [DE #2]. Petitioner entered a guilty plea to using,
carrying, and brandishing a firearm during in and relation to
a crime of violence, and aiding and abetting, in violation of
18 U.S.C. § 924 (c) (1) (A) (ii) (Count Seven).
Petitioner was then sentenced to seven years on Count Seven.
The Supreme Court has held "because the fact of
brandishing aggravates the legally prescribed range of
allowable sentences, it constitutes an element of a separate,
aggravated offense that must be found by the jury, regardless
of what sentence the defendant might have received
if a different range had been applicable." Alleyne v.
United States, 570 U.S. 99, 115 (2013). Even assuming
Alleyne would apply to the facts of petitioner's
case, Alleyne has not been made retroactive by the
Supreme Court. United States v. Cornette,
932 F.3d 204, 210 (4th Cir. 2019). Therefore, as
petitioner's judgment became final more than three years
prior to the Supreme Court's decision in
Alleyne, Alleyne does not afford relief to
petitioner. Therefore, this argument is without merit.
foregoing reasons, petitioner's motion, [DE #156], is
DENIED. Petitioner's motion to extend time to file
supplemental briefing, [DE #177], is DENIED AS MOOT. The
clerk is directed to close this case.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). A
reasonable jurist would not find this court's dismissal
of Petitioner's § 2255 Motion debatable. Therefore,
a Certificate of Appealability is DENIED.