United States District Court, E.D. North Carolina, Southern Division
Earl Britt Senior U.S. District Judge.
matter is before the court on petitioner's 28 U.S.C.
§ 2255 motion. (DE # 121.) In 2007, petitioner, along
with others, was indicted for (1) arson and attempted arson,
and aiding and abetting the same, in violation of 18 U.S.C.
§§ 2 and 844(i) (“Count One”); (2)
conspiracy to commit arson and to attempt to commit arson in
violation of 18 U.S.C. § 844(i), (n) (“Count
Two”); and, (3) possession of a destructive device in
furtherance of a crime of violence, and aiding and abetting
the same, in violation of 18 U.S.C. §§ 2 and 924(c)
(“Count Three”). Pursuant to a plea agreement,
petitioner pled guilty to Count Three, specifically
possession of a destructive device in furtherance of
attempted arson and aiding and abetting others in committing
such act. (DE # 69, at 5.) The court sentenced petitioner to
270 months imprisonment and dismissed Counts One and Two
pursuant to the plea agreement, (id. at 6).
Petitioner did not appeal.
2016, petitioner filed pro se this § 2255
motion. Petitioner claims that attempted arson is
not a “crime of violence” within the meaning of
§ 924(c), and therefore, his conviction, which was
predicated on that offense, and sentence must be
vacated. (See Mot., DE # 121, at 13.)
government's motion, the court placed this proceeding in
abeyance pending the decisions in United States v.
Simms, 914 F.3d 229 (4th Cir. 2019) (en banc), and
United States v. Walker, 934 F.3d 375 (4th Cir.
2019). (DE # 149.) After those decisions issued, the court
directed the parties to file supplemental briefs regarding
the § 2255 motion. (8/27/19 Text Order.)
briefing, based on United States v. Davis, 139 S.Ct.
2319 (2019), “the Government concedes that the
Petitioner's Section 924(c) conviction can no longer
stand, ” (Br., DE # 187, at 2), and thus recognizes
that the court should vacate petitioner's conviction,
(id. at 8, 9). However, the government contends,
because petitioner admitted as part of his plea to the
predicate offense of attempted arson, the court should
“substitute” that “lesser-included”
offense for the § 924(c) conviction and resentence
petitioner on the substituted offense. (Id. at 2,
8.) Alternatively, should the court not allow substitution of
the attempted arson offense, the government reserves the
right to seek reinstatement of Counts One and Two pursuant to
18 U.S.C. § 3296. (Id. at 2 n.3, 8.) In
response, petitioner argues that the court lacks authority to
substitute one offense for another and cannot reinstate any
count dismissed pursuant to the plea agreement. (DE # 189.)
outset, the court agrees with the parties that
petitioner's § 924(c) conviction (and, as a result,
sentence) is no longer valid and must be vacated. See
United States v. Hammond, Nos. 3:19-cv-00544-KDB,
3:94-cr-00110-3, 2019 WL 5295703, at *2-3 (W.D. N.C. Oct. 18,
2019) (recognizing that “under Davis,
Petitioner's [§ 924(c)] conviction . . . is valid
only if Petitioner's arson offense qualifies as a
‘crime of violence' under § 924(c)'s force
clause” and “hold[ing] arson under 18 U.S.C.
§ 844(i) is not a ‘crime of violence' as
defined under 18 U.S.C. § 924(c)'s force
clause”). In support of its argument, the government
cites several cases for the well-established proposition that
a court may direct entry of a conviction for a lesser
included offense where a jury has convicted the defendant of
the greater offense but it is later determined-on grounds
affecting only the greater offense-that the conviction was
erroneous. See, e.g., United States v.
Sepulveda-Hernandez, 752 F.3d 22, 28-29 (1st Cir. 2014)
(collecting cases) (adopting a multi-step test to determine
whether the court should exercise its authority to enter a
lesser included offense conviction); United States v.
Silvers, 90 F.3d 95, 99 (4th Cir. 1996) (recognizing
“an appellate court on direct appeal may impose a
conviction for a lesser-included offense when it vacates a
greater erroneous conviction, even though the jury did not
render an express verdict on the lesser offense”
(citations omitted)). The court has not located, and the
government does not cite, any case where a court has relied
on this authority in the case of a guilty plea. In fact, one
court in this circuit has refused to substitute one offense
for a § 924(c) conviction under circumstances like those
here. See Diri v. United States, Nos.
3:16-cv-476-RJC, 3:05-cr-376-RJC-1, 2019 WL 5076388, at *3-4
(W.D. N.C. Oct. 9, 2019) (on collateral review, declining to
substitute Hobbs Act extortion underlying the vacated §
924(c) conviction where the defendant had pled guilty to
§ 924(c) pursuant to a plea agreement). In the absence
of any authority, the court declines to substitute another
offense for petitioner's § 924(c) conviction.
§ 2255 motion is GRANTED, and petitioner's
conviction and sentence are VACATED. The court stays
petitioner's release from imprisonment pending the
government's determination of whether it will seek to
reinstate any dismissed count. After 60 days, if the
government has not filed a motion to reinstate any count,
defendant shall be released, subject to any detainer. The
court expresses no opinion on the appropriateness of
reinstatement of any count under 18 U.S.C. § 3296.
 After petitioner filed pro se
this § 2255 motion, court-appointed counsel filed a
notice of appearance on his behalf and a separate notice
stating that petitioner's pro se motion
“accurately presented his claim” and “[n]o
amendment to his motion is necessary, ” (DE # 140, at
 Petitioner raises two additional
claims. (Mot., DE # 121, at 13-15.) Given the court's
resolution of petitioner's first claim, the court does