United States District Court, E.D. North Carolina, Northern Division
CALVIN D. BRITT, Petitioner,
UNITED STATES OF AMERICA, Respondent.
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE
cause comes before the Court on petitioner's amended
motion to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255. [DE 69]. The stay previously entered
in this matter has been lifted, and the parties have filed
supplemental briefing or the time for doing so has expired.
For the reasons that follow, petitioner's § 2255
motion is DENIED.
Britt, was sentenced on July 10, 2007, to a total term of 180
months' imprisonment following his plea of guilty to
counts one and two of a superseding indictment charging
interference with commerce by robbery (count one), 18 U.S.C.
§ 1951; using, carrying, and possessing a firearm during
and in relation to a crime of violence (count two), 18 U.S.C.
§ 924(c)(1)(A); and possession of a firearm by a
convicted felon (count three), 18 U.S.C. §§
922(g)(1) and 924. [DE 48].
filed a 28 U.S.C. § 2255 motion, arguing that his
conviction on count two and his career offender enhancement
under section 4B1.1 of the United States Sentencing
Guidelines were based on the unconstitutionally vague
residual clause of 18 U.S.C. § 924(c). Upon a motion by
the government, the case was stayed on August 3, 2016, and
again on July 19, 2017, to await decisions by the Fourth
Circuit in United States v. Walker, 934 F.3d 375
(4th Cir. 2019), and United States v. Simms, 914
F.3d 229 (4th Cir. 2019). Although Simms was decided
on January 24, 2019, the mandate in Simms was stayed
to await the Supreme Court's decision in United
States v. Davis, 139 S.Ct. 2319 (2019). Following the
Supreme Court's decision in Davis and the Fourth
Circuit's mandate in Simms, this Court sua
sponte lifted the stay in this matter and ordered
additional briefing. In this posture, the § 2255 motion
is ripe for adjudication.
motion under 28 U.S.C. § 2255 will be granted where the
petitioner has shown that his sentence was imposed in
violation of the Constitution or laws of the United States,
that the court was without jurisdiction to impose the
sentence, that the sentence was in excess of the maximum
sentence authorized by law, or that it is otherwise subject
to collateral attack. 28 U.S.C. § 2255(a).
amended § 2255 motion, Britt argues first that he is no
longer a career offender under U.S.S.G. § 4B1.1 and
second that his 18 U.S.C. § 924(c) conviction is invalid
as it is based on predicate offense that is no longer a crime
of violence. Britt relies on the Supreme Court's holding
in Johnson v. United States, 135 S.Ct. 2551 (2015),
as the basis for both claims. In Johnson, the
Supreme Court held that the residual clause of the Armed
Career Criminal Act's definition of a crime of violence
is unconstitutionally vague. Id. at 2563; 18 U.S.C.
Britt's first claim for relief, it is properly denied.
The Supreme Court in Johnson held that the
ACCA's residual clause is unconstitutionally vague and
that to increase a defendant's sentence under that clause
denies the defendant due process of law. Id. at
2557. In Welch v. United States, the Supreme Court
held that Johnson announced a substantive rule that
applies retroactively on collateral review. 136 S.Ct. 1257
(2016). However, and in contrast to the ACCA, the Supreme
Court held in Beckles that the United States
Sentencing Guidelines are not subject to vagueness challenges
under the Due Process Clause. Beckles v. United
States, 137 S.Ct. 886, 894 (2017) ("Because they
merely guide the district courts' discretion, the
Guidelines are not amenable to a vagueness challenge.").
Beckles forecloses the argument raised by Britt,
namely that the rule announced in Johnson renders
his advisory guideline sentence unconstitutional.
second claim for relief is also properly denied. A defendant
shall be subject to a consecutive sentence if he "during
and in relation to any crime of violence or drug trafficking
crime ... for which the person may be prosecuted in a court
of the United States, uses or carries a firearm or who, in
furtherance of any such crime, possesses a firearm . .
.." 18 U.S.C. § 924(c)(1)(A). The predicate offense
for Britt's conviction under 18 U.S.C. § 924(c) for
using, carrying, and possessing a firearm during and in
relation to a crime of violence is his interference with
commerce by robbery (Hobbs Act robbery) charge in count one.
Section 924(c) defines a crime of violence as a felony
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
another [the force clause], or
(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 [the residual
18 U.S.C. § 924(c)(3)(A)-(B). The residual clause of
§ 924(c)(3) is now invalid. Davis, 139 S.Ct. at
2336; Simms, 914 F.3d at 252. However, Hobbs Act
robbery remains a crime of violence under the force clause of
§ 924(c)(3)(A). United States v. Mathis, 932
F.3d 242, 266 (4th Cir. 2019). Accordingly, Britt's
§ 924(c) conviction stands because Hobbs Act robbery
remains a qualifying predicate crime of violence under §