United States District Court, E.D. North Carolina, Southern 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. 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.
Gaines, is serving a sentence of 252 months' imprisonment
after pleading guilty to charges of possession with intent to
distribute a quantity of marijuana (count 5), 21 U.S.C.
§ 842(a)(1); using and carrying a firearm during a crime
of violence (counts six and nine), 18 U.S.C. § 924(c);
and interference with commerce by robbery (Hobbs Act robbery)
(count eight), 18 U.S.C. §1951. [DE 205].
filed a 28 U.S.C. § 2255 motion challenging his
conviction on count nine, arguing that it was based on the
unconstitutionally vague residual clause of 18 U.S.C. §
924(c). Upon a motion by the government, this 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).
§ 2255 motion, Gaines argues that his 18 U.S.C. §
924(c) conviction on count nine is invalid as it is based on
a predicate offense that is no longer a crime of violence,
relying on the Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015). hi
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,
914 F.3d at 252.
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 Gaines'
conviction under 18 U.S.C. § 924(c) in count nine is his
Hobbs Act robbery charge in eight. [DE 6].
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, 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, Gaines' § 924(c)