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Diri v. United States

United States District Court, W.D. North Carolina, Charlotte Division

October 8, 2019

GEORGE E. DIRI, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr., United States District Judge.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate Sentence under Johnson v. United States, 135 S.Ct. 2551 (2015), arguing that his conviction for violating 18 U.S.C. § 924(c) is invalid. (Doc. No. 1).

         I. BACKGROUND

         Petitioner was indicted along with two co-defendants in the underlying criminal case for his participation in a Hobbs Act extortion and arson conspiracy. The charges in the original Indictment pertaining to Petitioner are: Count (1), conspiracy to commit Hobbs Act extortion, arson, and property damage by arson, and using, carrying, and possessing a firearm in furtherance of a crime of violence, “extortion (18 U.S.C. § 1951);” Counts (5), (7), (9), attempted Hobbs Act extortion and aiding and abetting; and Counts (6), (8), (10), using and carrying a firearm in furtherance of a crime of violence, “extortion (18 U.S.C. § 1951).” (3:05-376-cr-87, Doc. No. 3 at 2, 7, 8) (Indictment). The overt act for the conspiracy charged in Count (1), paragraph 14 of the Indictment is: “On or about October 6, 2004, BROWN and other persons used a .40 caliber handgun to shoot into the Midtown Food Mart #2 while the store owners and store customers occupied the store.” (Id., Doc. No. 3 at 3);

         Petitioner pled guilty to Count (8)[1] of the Initial Indictment and “admit[ted] to being in fact guilty as charged in that Count.” (Id., Doc. No. 26 at 1) (First Plea Agreement). The First Plea Agreement reserves the Government's right to “proceed on any properly-filed dismissed, pending, superseding, or additional charges.” (Id.). At the Rule 11 hearing, the prosecutor described the crime underling Count (8) as “extortion, ” that is, the overt act charged in Count (1), paragraph 14 of the Indictment. (Id., Doc. No. 103 at 4-5). The Court went on to describe Count (8) as carrying a firearm during and in furtherance of “this extortion….” (Id., Doc. No. 103 at 6).

         The Government subsequently filed a Third Superseding Indictment that charged Petitioner with: Count (1), Hobbs Act extortion conspiracy; Count (2) aiding and abetting attempted Hobbs Act robbery; Count (3), aiding and abetting arson; Count (4), aiding and abetting attempted property destruction using fire and explosive materials; Count (5), use, carrying and possession of a firearm during and in relation to a crime of violence, a violation of 18 U.S.C. § 1951, and aiding and abetting the same (18 U.S.C. §§ 924(c) and 2); Count (7), aiding and abetting the use and carrying a firearm in furtherance of a crime of violence, a violation of 18 U.S.C. § 1951 (18 U.S.C. §§ 924(c) and 2). (Id., Doc. No. 87) (Third Superseding Indictment).

         Petitioner entered into the Second Plea Agreement in which he pled guilty to Count (1) of the Third Superseding Indictment, Hobbs Act extortion conspiracy. (Id., Doc. No. 122 at 1). The First Plea Agreement remained in full force and effect. (Id.). Both Plea Agreements state Petitioner's understanding that, “if he breaches [the] Plea Agreement, or violates federal, state or local law, or any order of any court, … the United States will be relieved of its obligation under [the] Plea Agreement, but the Defendant will not be allowed to withdraw his guilty plea.” (Id., Doc. No. 26 at 7); (Id., Doc. No. 122 at 8).

         The Court accepted both of Petitioner's pleas, (Id., Doc. Nos. 30, 124), and sentenced him to 87 months' imprisonment for the conspiracy in Count (1) and 120 months for the § 924(c) violation in Count (8), consecutive, for a total of 207 months' imprisonment followed by a total of five years of supervised release. (Id., Doc. No. 141). Petitioner did not appeal.

         Petitioner filed a pro se Motion to Vacate in 2007, case number 3:07-cv-505. The Court dismissed and denied the Motion to Vacate and granted summary judgment in the Government's favor. Diri v. United States, 2010 WL 3991482 (W.D. N.C. Oct. 12, 2010).

         Petitioner filed the instant § 2255 Motion to Vacate through counsel on June 24, 2016 raising a claim pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015) with the Fourth Circuit's authorization to do so. (Doc. Nos. 1, 1-1). This case was stayed for several years pending the Fourth Circuit's consideration of United States v. Ali, No. 15-4433 and United States v. Simms, No. 15-4640. (Doc. No. 4).

         Petitioner filed a Supplemental Memorandum in support of the § 2255 Motion to Vacate following the United States Supreme Court's issuance of its decision in United States v. Davis, 139 S.Ct. 2319 (2019), in which it held that § 924(c)'s residual clause is unconstitutionally vague. (Doc. No. 5). Petitioner argues that the § 924(c) conviction is no longer valid because the underlying offense, conspiracy to commit Hobbs Act extortion in Count (1), is no longer a crime of violence.

         The Government concedes that Petitioner's § 924(c) conviction should be vacated but asserts that the offense underlying the § 924(c) conviction is Hobbs Act extortion, not conspiracy. (Doc. No. 6). It further argues that a conviction for the “lesser included offense” of Hobbs Act extortion, which Petitioner admitted by pleading guilty, should be “substituted” for the § 924(c) conviction. (Id. at 9).

         Petitioner continues to assert that conspiracy to commit Hobbs Act extortion is the underlying offense for Count (8) and argues that substitution of Hobbs Act extortion for the § 924(c) conviction is improper because: this Court does not have the authority to substitute a new count of Hobbs Act extortion under the facts of the case; doing so would punish Petitioner for asserting his meritorious claim of actual innocence; the statute of limitations for substantive Hobbs Act extortion has expired; and substituting the offense would violate double jeopardy. (Doc. No. 9). Petitioner requests immediate release upon resentencing because he has already served the entire 87-month sentence for Count (1).

         II. ...


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