United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. [DE 221]. The stay previously entered in this
matter has been lifted and the parties have been permitted to
file supplemental briefing. For the reasons that follow,
petitioner's § 2255 motion is DENIED.
Carry, was sentenced on November 30, 2005, to a total term of
308 months' imprisonment after pleading guilty to counts
one, two, three, and six of an indictment charging him with
conspiracy to commit armed robbery (count one), 18 U.S.C.
§ 371; interference with commerce by robbery (Hobbs Act
robbery) and aiding and abetting (count two), 18 U.S.C.
§§ 1951 and 2; brandishing and discharging a
firearm during and in relation to a crime of violence (count
three), 18 U.S.C. § 924(c); and carjacking (count six),
18 U.S.C. § 2119. [DE 89].
filed a motion pursuant to 28 U.S.C. § 2255 arguing that
his 18 U.S.C. § 924(c) conviction is unconstitutional in
light of the Supreme Court's holding in Johnson v.
United States, 135 S.Ct. 2551 (2015). 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. § 924(e)(2).
motion by the government, the case was stayed on July 27,
2016, 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).
has filed a. pro se motion requesting that the Court
consider an intervening decision, which the Court construes
as a notice of supplemental authority and ALLOWS.
to 18 U.S.C. § 924(c), 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 Carry's
conviction under 18 U.S.C. § 924(c) is his Hobbs Act
robbery charge in count two. [DE l].
924(c) defines a crime of violence as a felony offense that
(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). Although, like the
ACCA's residual clause, the residual clause of §
924(c)(3) is now invalid, Davis, 139 S.Ct. at 2336,
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,
Carry's § 924(c) ...