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 229]. 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.
Peterson, was sentenced on July 14, 2005, to a total term of
190 months' imprisonment after pleading guilty to
interference with commerce by robbery (Hobbs Act robbery) and
aiding and abetting (count two), 18 U.S.C. §§ 1951
and 2, and brandishing and discharging a firearm during and
in relation to a crime of violence (count three), 18 U.S.C.
§ 924(c). [DE 72].
filed a motion pursuant to 28 U.S.C. § 2255 in light of
the Supreme Court's holding in Johnson v. United
States, 135 S.Ct. 2551 (2015). Upon a motion by the
government, the case was stayed on August 17, 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).
§ 2255 motion, Peterson argues that his 18 U.S.C. §
924(c) conviction is invalid as it is based on a predicate
offense that is no longer a crime of violence. Peterson
further contends that his Guidelines sentencing range was
improperly enhanced under the career offender Guideline. Both
arguments rely on the Supreme Court's decision 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). Four years later, in
Davis, the Supreme Court invalidated the definition
of a crime of violence in 18 U.S.C. § 924(c)(3)'s
residual clause. 139 S.Ct. at 2336; see also Simms,
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 Peterson's
conviction under 18 U.S.C. § 924(c) is his Hobbs Act
robbery charge in count two. [DE 1].
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 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, Peterson's § 924(c) conviction
stands as he has a proper crime of violence predicate to
support the conviction.
Johnson challenge to his career offender advisory
Guidelines range is foreclosed by the Supreme Court's
decision in Beckles v. United States, which held
that the United States Sentencing Guidelines are not subject