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Lymas v. United States

United States District Court, E.D. North Carolina, Western Division

September 25, 2019

XAVIER DESHAWN LYMAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE

         This 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 petitioner and respondent have be permitted to file supplemental briefing. For the reasons that follow, petitioner's § 2255 motion is DENIED.

         BACKGROUND

         Petitioner, Lymas, is currently serving a sentence of 123 months' imprisonment after pleading guilty to counts one and three of an eight-count indictment charging Lymas and others with robbery and firearm offenses. Lymas pleaded guilty to conspiracy to rob businesses engaged in interstate commerce (count one), 18 U.S.C. § 1951(b); and using and carrying a firearm during and in relation to a crime of violence and aiding and abetting (count three), 18 U.S.C. §§ 924(c)(1)(A) and 2. Lymas was sentenced to sixty-three months' imprisonment on count one and sixty months' imprisonment on count three, to be served consecutively. [DE 197].

         Lymas 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).

         Upon a motion by the government, the case was stayed on March 3, 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.

         DISCUSSION

         A 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).

         Pursuant 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 Lymas' conviction under 18 U.S.C. § 924(c) in count three is his interference with commerce by robbery (Hobbs Act robbery) charge in count two. [DE 1].

         Section 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 clause].

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). That the Hobbs Act robbery charge in count two supporting Lymas' § 924(c) conviction was dismissed is of no import. See United States v. Carter, 300 F.3d 415, 425 (4th Cir. 2002); United States v. Link, 214 F.Supp. 3d 506, 518 (E.D. Va. 2016). Accordingly, Lymas' § 924(c) conviction stands as he has a proper crime of violence predicate to support the conviction.

         Certificate ...


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