United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
MATTER is before the Court on the Petitioner’s
Motion to Vacate Sentence under 28 U.S.C. § 2255 [CV
Doc. 1] and the Government’s Response in
Opposition to Motion under 28 U.S.C. § 2255 [CV Doc. 8].
The Petitioner is represented by Caleb Newman of the Federal
Defenders of Western North Carolina.
December 13, 2011, Petitioner Jarvis Demond Hemphill
(“Petitioner”) was charged in a Bill of
Indictment with two counts of Hobbs Act robbery, in violation
of 18 U.S.C. § 1951 (Counts One and Three); two counts
of possessing and brandishing a firearm in furtherance of a
“crime of violence, ” that is Hobbs Act robbery,
in violation of 18 U.S.C. § 924(c)(1)(A) (Counts Two and
Four); and one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1) (Count
Five). [CR Doc. 1: Indictment]. On November 2, 2012,
Petitioner and the Government entered into a Plea Agreement,
pursuant to which Petitioner agreed to plead guilty to Counts
One, Two and Five, and the Government agreed to dismiss
Counts Three and Four. [CR Doc. 23 at 1: Plea Agreement].
November 13, 2012, Petitioner pleaded guilty to Counts One,
Two, and Five. [CR Doc. 25: Acceptance and Entry of Guilty
Plea]. Petitioner was subject to a Guidelines range of 46 to
57 months’ imprisonment on Counts One and Five due to a
§ 2K2.1 enhancement for a prior conviction on three
counts of North Carolina common law robbery. [CR Doc. 38 at
¶ 21; CR Doc. 42 at ¶ III: Statement of Reasons].
The Petitioner’s sentencing hearing was held on January
14, 2014. The Court sentenced Petitioner to a term of
imprisonment of 57 months on both Counts One and Five, to be
served concurrently, and 87 months on Count Two, to be served
consecutively to the term imposed on Counts One and Five, for
a total term of 144 months’ imprisonment. [CR Doc. 41
at 2: Judgment]. Judgment on this conviction was entered on
February 6, 2014. [Id.]. Petitioner appealed his
conviction based on his competency to enter a guilty plea.
[CR Docs. 53, 64]. The Fourth Circuit affirmed the District
Court’s judgment. [CR Doc. 64].
23, 2016, Petitioner filed motion to vacate sentence under 28
U.S.C. § 2255, arguing that his conviction under 18
U.S.C. § 924(c) is invalid under Johnson v. United
States, 135 S.Ct. 2551 (2015). [CV Doc. 1]. Petitioner
also argues that his sentence was improperly enhanced under
U.S.S.G. § 2K2.1 based on a prior conviction on three
counts of North Carolina common law robbery. [Id.;
see CR Doc. 38 at ¶ 21]. After conducting an
initial review of Petitioner’s § 2255 motion to
vacate, the Court ordered the Government to respond. [CV Doc.
upon the request of the Government, this matter was stayed
pending the Fourth Circuit’s decision in United
States v. Ali, No. 15-4433, or United States v.
Simms, No. 15-4640, and the Supreme Court’s
decision in United States v. Beckles, No. 15-8544.
The Fourth Circuit then ordered that Ali would be
held in abeyance pending the Supreme Court’s decision
in United States v. Davis, No. 18-431. On
the Government’s request, this matter was in turn
stayed pending Davis. [CV Doc. 7]. The Court ordered
that the Government would have 60 days to respond to
Petitioner’s motion once the Supreme Court issued its
ruling in Davis. [Id.]. The Supreme Court
decided Davis on June 24, 2019. The Government
timely responded to Petitioner’s § 2255 motion to
vacate. [CV Doc. 8]. The Petitioner, despite being
represented by counsel, did not reply.
matter is now ripe for disposition.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the motion to vacate can be resolved without an
evidentiary hearing based on the record and governing case
law. See Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
28 U.S.C. § 2255, a petitioner is entitled to relief
when his original sentence “was imposed in violation of
the Constitution or laws of the United States, or [when] the
court was without jurisdiction to impose such
sentence.” 28 U.S.C. § 2255(a). The Petitioner
claims argues he is entitled to relief on these grounds
because, under Johnson, his conviction on Count Two
was imposed in violation of the Constitution and laws of the
United States. [CV Doc. 1 at 2].
Johnson, the Supreme Court struck down the Armed
Career Criminal Act’s (ACCA) residual clause, 18 U.S.C.
§ 924(e)(2)(B)(ii), as unconstitutionally vague and held
that enhancing a sentence under the ACCA’s residual
clause violates due process. Johnson, 135 S.Ct. at
2563. The ACCA residual clause defined a “violent
felony” to include any crime punishable by a term of
imprisonment exceeding one year that “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. §
924(e)(2)(B). Accordingly, under Johnson, a
defendant who was sentenced to a statutory mandatory minimum
term of imprisonment based on a prior conviction that
satisfies only the residual clause of the “violent
felony” definition is entitled to relief from his
sentence. The Supreme Court has held that Johnson
applies retroactively to claims asserted on collateral
review. Welch v. United States, 136 S.Ct. 1257, 1265
the Petitioner argues his § 924(c) conviction is invalid
under Johnson. [Doc. 1 at 1]. Section 924(c)
criminalizes the use of a firearm in furtherance of a
“crime of violence.” Under § 924(c), a crime
is one of violence if it either “has an element the
use, attempted use, or threatened use of physical force
against the person or property of another, ” (the
“force clause”) or “by its nature involves
a substantial risk that physical force against the person or