United States District Court, E.D. North Carolina, Eastern Division
W. FLANGAN UNITED STATES DISTRICT JUDGE
matter is before the court on petitioner's motions to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§2255 (DE 92) and for reduction of sentence (DE 87),
where he asserts the court should vacate his conviction for
discharging a firearm in furtherance of a crime of violence,
in violation of 18 U.S.C. § 924(c). The government
concedes that petitioner is entitled to § 2255 relief,
and requests that the court set this matter for resentencing.
January 13, 2015, petitioner pleaded guilty to: 1) conspiracy
to commit Hobbs Act Robbery, in violation of 18 U.S.C.
§1951 (count one), and 2) discharging a firearm in
furtherance of a crime of violence and aiding and abetting,
in violation of 18 U.S.C. § 924(c)(1)(A) and 2 (count
two). On May 7, 2015, the court sentenced petitioner to an
aggregate term of 133 months' imprisonment.
17, 2016, petitioner filed the instant pro se motion for
reduction of sentence. That same day, the court appointed
counsel for petitioner pursuant to Standing Order 15-SO-02.
On June 15, 2016, petitioner filed the instant motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. Petitioner asserts that his § 2255
conviction should be vacated pursuant to Johnson v.
United States, 135 S.Ct. 2551 (2015). On July 8, 2016,
the court granted respondent's motion to stay the §
2255 proceedings pending the United States Court of Appeals
for the Fourth Circuit's decision in United States v.
Simms, No. 15-4640 (4th Cir. 2016). The Fourth Circuit
decided Simms on January 24, 2019, but stayed the
mandate pending the United States Supreme Court's
decision in United States v. Davis, No. 18-431
(2019). The Supreme Court decided Davis on June 24,
2019. The court entered order lifting the stay on July 18,
2019, and the parties completed supplemental briefing on
September 19, 2019. The government concedes that
petitioner's § 924(c) conviction should be vacated
and the matter set for resentencing.
924(c)(1)(A) provides that a person who uses or carries a
firearm “during and in relation to any crime of
violence or drug trafficking crime” or possesses a
firearm “in furtherance of any such crime” may be
convicted of both the underlying predicate crime and
utilizing a firearm in connection with a crime of violence or
drug trafficking offense. Upon conviction, the court must
sentence the defendant to at least five years'
imprisonment consecutive to the sentence imposed for the
predicate crime of violence or drug trafficking crime. §
924(c)(1)(A). Section 924(c)(3) defines crime of violence as
an offense that is a felony and:
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(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.
Id. § 924(c)(3)(A)-(B).
Davis, the Supreme Court held that §
924(c)(3)(B) is unconstitutionally vague, relying in part on
Johnson, which held a similar provision of the Armed
Career Criminal Act is unconstitutionally vague. United
States v. Davis, 139 S.Ct. 2319, 2336 (2019). In
Simms, the Fourth Circuit held that conspiracy to
commit Hobbs Act Robbery does not qualify as a crime of
violence under § 924(c)(3)(A). United States v.
Simms, 914 F.3d 229, 233-34 (4th Cir. 2019).
the predicate crime of violence supporting petitioner's
§ 924(c) conviction is conspiracy to commit Hobbs Act
Robbery. As set forth above, Simms and
Davis establish that conspiracy to commit Hobbs Act
Robbery no longer qualifies as a crime of violence under
§ 924(c)(3)(A), and that § 924(c)(3)(B) is
unconstitutionally vague. Petitioner's § 924(c)
conviction therefore is invalid. The government concedes
petitioner is entitled to § 2255 relief in these
circumstances, and asks that the court vacate
petitioner's § 924(c) conviction and his sentence in
on the foregoing, the court GRANTS petitioner's motions
for reduction of sentence and to vacate (DE 87, 92), VACATES
petitioner's conviction on count two, and VACATES
petitioner's sentence in its entirety. Petitioner's
conviction for conspiracy to commit Hobbs Act Robbery remains
intact. The clerk is DIRECTED to schedule this matter for
resentencing at the next available regularly scheduled term
of court. Petitioner has waived his right to be present at
the resentencing hearing (DE 118 & Ex. A.),
therefore the parties do not need to ensure petitioner's
attendance. The United States Probation Office is DIRECTED to
investigate, prepare, file under seal, and publish to the