United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
filed a pro se motion in this court pursuant to 28 U.S.C.
§ 2255. ECF No. 598. The Federal Public Defender
thereafter filed a supplemental motion, challenging
Defendant's conviction for a violation of 18 U.S.C.
§ 924(c). ECF No. 603. The Government filed a response
in opposition and a motion for summary judgment. ECF Nos.
630, 631. Defendant, though counsel, filed a response in
opposition to the Government's motion. ECF No. 637.
14, 1999, Defendant was charged with the following counts:
conspiracy to commit Hobbs Act Robbery, in violation of 18
U.S.C. § 1951(b)(3); conspiracy to use, carry and
brandish firearms during and in relation to, and possess
firearms in furtherance of crimes of violence, specifically
Hobbs Act Robbery, in violation of 18 U.S.C. §§ 924
(o); four counts of Hobbs Act Robbery, in violation of §
1951; and four counts of knowingly using, carrying,
brandishing, and discharging a firearm during and in relation
to a Hobbs Act Robbery, in violation of 18 U.S.C. §
924(c). ECF No. 1 (Counts 1, 2, 7, 8, 9, 10, 12, 13, 14, and
November 12, 1999, Defendant pled guilty to Counts 13 and 15
of the Indictment: two counts of § 924(c) brandishing in
relation to Hobbs Act Robbery, one of which took place on
April 21, 1999, and the other on April 29, 1999. ECF No. 213.
Judgment was entered on April 7, 2000. ECF No. 277. Defendant
was sentenced to a total term of 360 months, consisting of 60
months as to Count 13 and 300 months as to Count 15,
consecutive. Id. A reduction in sentence was granted
pursuant to Rule 35(b) on November 13, 2001, reducing
Defendant's total term to 348 months: 60 months as to
Count 13 and 288 months as to Count 15, consecutive. ECF No.
372. Defendant appealed his sentence and conviction, and the
Fourth Circuit affirmed. ECF No. 377. A second Rule 35(b)
reduction was granted on November 18, 2008, reducing
Defendant's total sentence to 288 months, 60 months on
Count 13 and 228 months on Count 15. ECF No. 435.
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)(1)(A).
“drug trafficking crime” for purposes of §
924(c) means “any felony punishable under the
Controlled Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C. 951 et
seq.), or chapter 705 of title 46.” 18 U.S.C. §
924(c)(2). The statute defines a “crime of
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
18 U.S.C. § 924(c)(3).
argues the substantive Hobbs Act Robberies cannot serve as
predicates for his § 924(c) convictions, as they are not
“crimes of violence” as defined in §
924(c)(3)(A) or (B). ECF Nos. 598, 603. He also, through his
attorney, attempts to argue his plea was invalid because he
admitted guilt pursuant to the residual clause of §
924(c), which is void under Johnson. ECF No. 603. The
Government has moved for summary judgment, arguing
Defendant's claim was waived, is untimely, and fails on
the merits as Hobbs Act Robbery is categorically a crime of
violence under the force clause. ECF No. 630. Defendant