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 133]. 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 GRANTED.
Santiago, was sentenced on April 25, 2012, to a total term of
135 months' imprisonment after pleading guilty to
conspiracy to commit Hobbs Act robbery (count one), 18 U.S.C.
§ 1951, and using and possessing a firearm during and in
relation to a crime of violence (count three), 18 U.S.C.
§ 924(c). [DE82].
25, 2016, Santiago filed a counseled 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). [DE 133]. 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). Santiago also filed a pro se
motion for reduction of sentence in light of
Johnson. [DE 131]. On June 24, 2019, and August 8,
2019, Santiago filed pro se amended motions pursuant
to 28 U.S.C. § 2255. [DE 148 & 150]. In his amended
§ 2255 motions, Santiago seeks vacatur of his §
924(c) conviction based upon United States v. Simms,
914 F.3d 229 (4th Cir. 2019). Because each of the § 2255
motions seeks, at bottom, the same relief- vacatur of
Santiago's § 924(c) conviction - the Court will
consider them as a single amended motion to vacate, set
aside, or correct sentence.
motion, by the government, this case was stayed on November
1, 2016, to await decisions by the Fourth Circuit in
United States v. Walker, 934 F.3d 375 (4th Cir.
2019), and 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 amended § 2255 motion is ripe for
motion under 28 U.S.C. § 2255 will be granted where the
petitioner has shown that his 1 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).
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 Santiago's
conviction under 18 U.S.C. § 924(c) is his conspiracy to
commit Hobbs Act robbery charge in count one. [DE37at3].
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). The residual clause
of§ 924(c)(3) is now invalid. Davis, 139 S.Ct.
at 2336; Simms, 914 F.3d at 252. Conspiracy to
commit Hobbs Act robbery is no longer a proper predicate
crime of violence for a conviction under 18 U.S.C. §
924(c). See Simms, 914 F.3d at 233-34; see also
United States v. Calderon, No. 15-4420, 2019 W 3814570,
at *l (4t Cir. Aug. 14, 2019), as amended (Aug. 15, 2019)
("conspiracy to commit Hobbs Act robbery cannot
constitute a crime of violence."). Accordingly, as
Santiago's § 924(c) conviction is not predicated on
a qualifying crime of violence, it must therefore be vacated.
The government agrees that Santiago's § 924(c)
conviction must be vacated. [DE 166].
Santiago's challenge in his motion for reduction in
sentence to his advisory Sentencing Guidelines range based
upon Johnson, the Supreme Court held in Beckles
v. United States that the United States Sentencing
Guidelines are not subject t vagueness challenges under the
Due Process Clause. 137 S.Ct. 886, 894 (2017) ("Because
they merely guide the district courts' discretion, the
Guidelines are not amenable to a vagueness challenge.").
Beckles forecloses the argument raised by Santiago,
namely that the rule announced in Johnson renders
his advisory guideline sentence unconstitutional. Because the
relief sought in Santiago's motion fr reduction in
sentence seeking ...