United States District Court, W.D. North Carolina, Charlotte Division
Kenneth D. Bell United States District Judge.
MATTER is before the Court on the parties'
Emergency Consent Motion to Vacate Sentence under 28 U.S.C.
§ 2255. [Doc. 1]. The Petitioner is represented by Ann
Hester of the Federal Defenders of Western North Carolina.
6, 1994, Petitioner William Hammond
(“Petitioner”) was charged, along with two
co-defendants, in a Bill of Indictment with one count of
conspiracy to commit attempted bank larceny, in violation of
18 U.S.C. § 371 (Count One); one count of possession of
a destructive device and aiding and abetting the same, all in
violation of 26 U.S.C. §§ 5845(a) and (f), 5861(c),
5871 and 18 U.S.C. § 2 (Count Two); one count of
possession of an unregistered destructive device and aiding
and abetting the same, all in violation 26 U.S.C.
§§ 5841, 5845(a) and (f), 5861(d), and 5871 and 18
U.S.C. § 2 (Count Three); one count of damage by means
of an explosive device and aiding and abetting the same, all
in violation of 18 U.S.C. §§ 844(i) and 2 (Count
Four); and one count of use of a destructive device in
furtherance of a crime of violence, as set forth in Count
Four, and aiding and abetting the same, in violation of 18
U.S.C. §§ 924(c)(1) and 2 (Count Five). [Doc. 1-2;
Criminal No. 3:94-cr-00110-KDB-3 (“CR”), Doc. 1:
18, 1995, following a jury trial, Petitioner was found guilty
on all five counts of his Indictment. [Doc. 1-2; CR Doc. 58:
Verdict Sheet; see Doc. 1 at 3]. On October 5, 1995,
Petitioner's sentencing hearing was held. [Doc. 1-4 at
3]. The Court sentenced Petitioner to a term of 120
months' imprisonment on Counts One through Four, each to
run concurrently, and a consecutive term of 30 years'
imprisonment on Count Five. [Id.]. On June 8, 2007,
Petitioner filed a motion for a reduced sentence pursuant to
18 U.S.C. § 3582(c)(2) in light of Amendment 599 of the
United States Sentencing Guidelines. [CR Doc. 106]. On April
9, 2009, this Court granted this motion and reduced
Petitioner's sentence to a term of 70 month's
imprisonment on Counts One through Four, to be served
concurrently, followed by a consecutive term of 30 years'
imprisonment on Count Five. [CR Docs. 123, 124].
appealed his conviction to the Fourth Circuit Court of
Appeals. The Fourth Circuit denied Petitioner's appeal
and affirmed the Court's judgment. United States v.
Hammond, No. 96-4231, slip op. at 1 (4th Cir. Feb. 11,
1997). On April 30, 2007, Petitioner filed his first Section
2255 motion [CR Doc. 104], which was dismissed by this Court
as untimely [Doc. 105]. On May 16, 2016, Petitioner sought
and was denied authorization from the Fourth Circuit to file
a successive Section 2255 motion to make a vagueness
challenge to his § 924(c) conviction under United
States v. Johnson, 135 S.Ct. 2551 (2015).
again sought authorization from the Fourth Circuit after the
Supreme Court's recent decision in United States v.
Davis, 138 S.Ct. 1204 (2019). On October 11, 2019, the
Fourth Circuit granted Petitioner's request for
authorization to file the instant successive petition [Doc.
1-1] and the instant motion followed. At issue is the
constitutionality of Petitioner's conviction on Count
Five for use of a destructive device in furtherance of a
“crime of violence” in violation of 18 U.S.C.
§ 924(c)(1)(A). [See Doc. 1]. The parties agree
that Petitioner's conviction under § 924(c) is
invalid under Davis and jointly request that the
Court vacate this conviction and sentence Petitioner to time
served on the remaining counts of conviction. [Doc. 1 at 11].
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the motion to vacate can be resolved without an
evidentiary hearing based on the record and governing case
law. See Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
Johnson, the Supreme Court struck down the Armed
Career Criminal Act's (ACCA) residual clause, 18 U.S.C.
§ 924(e)(2)(B)(ii), as unconstitutionally vague and held
that enhancing a sentence under the ACCA's residual
clause violates due process. Johnson, 135 S.Ct. at
2563. The ACCA residual clause defined a “violent
felony” to include any crime punishable by a term of
imprisonment exceeding one year that “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. §
924(e)(2)(B). Accordingly, under Johnson, a
defendant who was sentenced to a statutory mandatory minimum
term of imprisonment based on a prior conviction that
satisfies only the residual clause of the “violent
felony” definition is entitled to relief from his
sentence. The Supreme Court has held that Johnson
applies retroactively to claims asserted on collateral
review. Welch v. United States, 136 S.Ct. 1257, 1265
three years after Petitioner originally sought authorization
from the Fourth Circuit to file a successive petition under
Johnson, the Supreme Court decided United States
v. Davis, 139 S.Ct. 2319 (2019). In Davis, the
Supreme Court specifically held the residual clause of §
924(c)'s definition of “crime of violence, ”
which is substantially similar to the ACCA's residual
clause, is “unconstitutionally vague.” 139 S.Ct.
at 2336. Therefore, under Davis, Petitioner's
conviction on Count Five is valid only if Petitioner's
arson offense qualifies as a “crime of violence”
under § 924(c)'s force clause.
924(c)'s force clause requires force against the person
or property “of another.” 18 U.S.C.
§ 924(c)(3)(A) (emphasis added). As such, an offense
that can be made out by applying force to one's own
property is not a qualifying offense under the force clause.
See United States v. Torres-Miguel, 701
F.3d 165, 167 (4th Cir. 2012). Petitioner's statute of
conviction for Count Five, 18 U.S.C. § 844(i) provides
(and provided at the time of Petitioner's alleged
Whoever maliciously damages or destroys, or attempts to
damage or destroy, by means of fire or an explosive, any
building, vehicle, or other real or personal property used in
interstate or foreign commerce or in any activity affecting