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United States v. Rice

United States District Court, D. South Carolina, Columbia Division

September 6, 2016

United States of America,
v.
Robert Louis Rice, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE Senior United States District Judge.

         Defendant, proceeding pro se, seeks relief in this court pursuant to 28 U.S.C. § 2255. ECF No. 41. The Government filed a motion for summary judgment and a response in opposition to Defendant's § 2255 motion/memorandum in support of its motion for summary judgment. ECF No. 51, 52. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Defendant of the summary judgment procedure and the consequences if he failed to respond. ECF No. 53. On August 19, 2016, Defendant replied to the Government's motion. ECF No. 56.

         I. Background

         On February 5, 2002, Defendant was charged in an eight count indictment in this court. ECF No. 1. On July 18, 2002, Defendant entered into a written plea agreement to plead guilty to counts 1, 2, 3, 5, and 7: four counts of armed bank robbery in violation of 18 U.S.C. §§ 2113 (d)[1](counts 1, 2, 5, and 7) and one count of use of a firearm during and in relation to the armed bank robbery (count 2) in violation of 18 U.S.C. § 924(c). ECF No. 29. As a part of the plea agreement, Defendant waived his direct appeal rights and his right to file a motion for relief under § 2255 except as to claims of ineffective assistance of counsel and/or prosecutorial misconduct. Defendant appeared before this court on July 24, 2002, and pled guity as above. ECF No. 30.

         On November 15, 2002, Defendant appeared for sentencing. The court sentenced Defendant to a total term of 336 months, consisting of 168 months on counts 1, 3, 5, and 7 (the armed bank robbery counts), to run concurrently with each other and with the undischarged term of imprisonment Defendant was then serving in Georgia, and 168 months consecutive as to count 2 (the firearms count). ECF No. 39. Defendant did not file a direct appeal.

         II. 18 U.S.C. § 924(c)

         Title 18 U.S.C. § 924(c) provides that a defendant shall be subject to a consecutive sentence if he or she, “during and in relation to any crime of violence or drug trafficking crime. . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm. . . .” 18 U.S.C. 924(c).

         The statute defines a “crime of violence” as:

an offense that is a felony and -
(A) has an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(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.

18 U.S.C. § 924(c)(3). The first clause is known as the “force” clause, while the second is the “residual” clause. United States v. Fuertes, 805 F.3d 485, 498 (4th Cir. 2015).

         III. Application of Johnson and Welch

         On June 26, 2015, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), violates due process as it “denies fair notice to defendants and invites arbitrary enforcement by judges.” Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551 (2015). By holding the ACCA residual clause unconstitutionally vague, the Court narrowed the predicate offenses that could serve to enhance a sentence to those that qualify under the ...


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