United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr., United States District Judge.
MATTER is before the Court on Petitioner's
Motion to Vacate Sentence under 28 U.S.C. § 2255, (Doc.
pled guilty in the underlying criminal case to: (1)
conspiracy to commit robbery by threat or force or violence
(18 U.S.C. § 1951); and (2) brandishing a firearm during
and in relation to a crime of violence (18 U.S.C. §
924(c)(1)(A)(ii)). (3:11-cr-277, Doc. No. 24). The Court
sentenced him to a total of 235 months in prison; 151 months
for Count (1) and 84 months for Count (2), consecutive,
followed by two years of supervised release. (Id.,
Doc. No. 55).
filed a memorandum brief on direct appeal pursuant to
Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal but
questioning whether Petitioner received ineffective
assistance of counsel. The Fourth Circuit affirmed on July
22, 2013 after reviewing the entire record and declined to
address the ineffective assistance claim as premature.
United States v. Boyd, 534 Fed.Appx. 187
(4th Cir. 2013).
then filed a § 2255 Motion to Vacate alleging that
counsel's pre-plea strategy was deficient and resulted in
an increased sentence, case number 3:14-cv-594. The Court
dismissed the § 2255 Motion to Vacate with prejudice
because Petitioner's claim was waived and meritless.
Boyd v. United States, 2015 WL 1897094 (W.D. N.C.
April 27, 2015).
filed the instant § 2255 Motion to Vacate through
counsel on June 13, 2016, arguing that his conviction and
sentence under § 924(c) violates due process under
Johnson v. United States, 135 S.Ct. 2551 (2015).
(Doc. No. 1); see (Doc. No. 1-1) (Fourth
Circuit's order authorizing Petitioner to file a
successive § 2255 petition). These proceedings were
stayed for several years pending the Fourth Circuit's
consideration of United States v. Ali, 15-4433.
(Doc. No. 7).
has now filed a Supplemental Memorandum, (Doc. No. 8),
arguing that his § 924(c) conviction and sentence should
be vacated pursuant to See United States v. Simms,
914 F.3d 229 (4th Cir. 2019) (en banc)
and United States v. Davis, 139 S.Ct. 2319 (2019),
because Hobbs Act conspiracy is not a crime of violence under
§ 924(c)'s force clause. Petitioner asks that his
§ 924(c) conviction and sentence for Count (2) be
vacated and, if the Government requests it, that he be
resentenced for Count (1) under the sentencing package
Government concedes in its Corrected Response, (Doc. No. 13),
that the § 924(c) conviction is invalid and should be
vacated and asking that Petitioner be resentenced under the
sentencing package doctrine.
STANDARD OF REVIEW
federal prisoner claiming that his “sentence was
imposed in violation of the Constitution or the laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a).
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 arguments presented by Petitioner 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).
924(c) prohibits using or carrying a firearm “during
and in relation to any crime of violence or drug trafficking
crime….” 18 U.S.C. § 924(c)(1). A
“crime of violence” is ...