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. 43. 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. 50.
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. 52. On September 1, 2016, Defendant
responded to the Government's motion. ECF No. 54.
February 20, 2002, Defendant was charged in an eight count
indictment in this court. ECF No. 11. On April 30, 2002,
Defendant entered into a written plea agreement to plead
guilty to counts 1 and 2: one count of armed bank robbery in
violation of 18 U.S.C. §§ 2113 (a),
(d)(count 1) 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. 23. Defendant
appeared before this court on the same day and pled guilty as
above. ECF No. 25.
October 15, 2002, Defendant appeared for sentencing. ECF No.
32. The court sentenced Defendant to a total term of 294
months, consisting of 210 months on count 1 (the armed bank
robbery count), and 84 months consecutive as to count 2 (the
firearms count). ECF No. 33. Defendant appealed, but the
Fourth Circuit affirmed the judgment of the district court.
ECF No. 42.
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
felon-in-possession sentence to those that qualify under the