United States District Court, E.D. North Carolina, Northern 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 167]. 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.
Kearney, was sentenced on February 18, 2005, to a total term
of 204 months' imprisonment following his plea of guilty
to counts one and two of a superseding indictment charging
robbery of a postal carrier and aiding and abetting (count
one), 18 U.S.C. §§2114(a) and 2; and using and
carrying a firearm during and in relation to a crime of
violence (count two), 18 U.S.C. § 924(c)(1)(A). Kearney
was sentenced to 120 months' imprisonment on count one
and 84 months on count two, to be served consecutively. [DE
filed a pro se 28 U.S.C. § 2255 motion
challenging his § 924(c) conviction on count two,
arguing that it was based on the unconstitutionally vague
residual clause of 18 U.S.C. § 924(c)(3) in light of
Johnson v. United States, 135 S.Ct. 2551 (2015). Upon a
motion by the government, the case was stayed on November 15,
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).
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 Kearney's conviction under 18 U.S.C. §
924(c) for using and carrying a firearm during and in
relation to a crime of violence is his robbery of a postal
carrier charge in count one. 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
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; Simms, 914 F.3d at 252, the Court
determines that Kearney's conviction for robbery of a
postal carrier is a crime of violence under the force clause,
and is therefore a proper § 924(c) predicate offense.
Section 2114(a) of Title 18 provides that
A person who assaults any person having lawful charge,
control, or custody of any mail matter or of any money or
other property of the United States, with intent to rob,
steal, or purloin such mail matter, money, or other property
of the United States, or robs or attempts to rob any such
person of mail matter, or of any money, or other property of
the United States, shall, for the first offense, be
imprisoned not more than ten years; and if in effecting or
attempting to effect such robbery he wounds the person having
custody of such mail, money, or other property of the United
States, or puts his life in jeopardy by the use of a
dangerous weapon, or for a subsequent offense, shall be
imprisoned not more than twenty-five years.
18 U.S.C. § 2114(a). Courts considering § 2114(a)
agree that it is divisible - that it lists multiple,
alternative elements - and thus when considering whether it
encompasses a crime of violence courts have applied the
modified categorical approach. See, e.g., Dorsey v.
United States, No. l:16-CV-738 (LMB), 2019 WL 3947914,
at *3 (E.D. Va. Aug. 21, 2019); see also Descamps v.
United States, 570 U.S. 254, 257 (2013); United
States v. Gomez, 690 F.3d 194, 198 (4th Cir. 2012).
"Under the modified categorical approach, [courts] look
only to the fact of conviction and the statutory definition
of the prior offense, and  generally do not consider the
particular facts disclosed by the record of conviction."
Gomez, 690 F.3d at 198 (internal quotations and
was charged with "rob[bing] a person of money and other
property of the United States, said person having lawful
charge, control, and custody of said money and property, and
did aid and abet others in so doing ...." [DE 25].
Kearney's judgment reflects that he was convicted of
robbery of a postal carrier and aiding and abetting. [DE 43].
Although the court of appeals has not addressed this issue
specifically, the Court, relying on the appellate court's
reasoning in similar contexts, concludes that robbery of a
postal carrier under § 2114(a) is a proper crime of
violence predicate under the force clause of § 924(c).
See, e.g., United States v. McNeal,818 F.3d 141,
152-53, 157 (4th Cir. 2016) (unarmed bank robbery is a crime
of violence); see also Stokeling v. United States,139 S.Ct. 544, 553 (2019) ("Robbery thus has always been
within the 'category of violent, active crimes' that
Congress included in ACCA.") (citation omitted);
United States v. Enoch,86 ...