United States District Court, W.D. North Carolina, Charlotte Division
GEORGE E. DIRI, Petitioner,
UNITED STATES OF AMERICA, Respondent.
J. Conrad, Jr., United States District Judge.
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).
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);
pled guilty to Count (8) 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).
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).
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).
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.
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).
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).
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.
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).
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).