United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge.
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.
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)(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.
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
18 U.S.C. § 924(c)
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).
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,
(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).
Application of Johnson and Welch
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 ...