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Boyd v. United States

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

November 6, 2019

RASHARD DEAN BOYD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Max O. Cogburn Jr., United States District Judge.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate Sentence under 28 U.S.C. § 2255, (Doc. No. 1).

         I. BACKGROUND

         Petitioner 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).

         Counsel 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).

         Petitioner 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).

         Petitioner 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).

         Petitioner 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 doctrine.

         The 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.[1]

         II. STANDARD OF REVIEW

         A 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).

         Rule 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).

         III. DISCUSSION

         Section 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 ...


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