United States District Court, D. South Carolina, Florence Division
L. Wooten Senior United States District Judge
Irby Gene Dewitt pled guilty to charges of Hobbs Act robbery,
in violation of 18 U.S.C. § 1951(a) (Count 1); and using
a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c) (Count 2). The Court
sentenced him as a career offender to 312 months
incarceration. ECF No. 127. In his § 2255 petition, he
makes two arguments: (1) that he is no longer a career
offender; and (2) that Hobbs Act robbery is not a valid
§ 924(c) predicate conviction and that he was therefore
“convicted of a non-offenses over which this court did
not have jurisdiction.” ECF No. 267 at 1.
Petitioner's career offender argument, the Supreme Court
has now foreclosed that argument, having held that “the
advisory Sentencing Guidelines are not subject to a vagueness
challenge under the Due Process Clause and that §
4B1.2(a)'s residual clause is not void for
vagueness.” Beckles v. United States, 137
S.Ct. 886, 895 (2017); see also United States v.
Foote, 784 F.3d 931, 936 (4th Cir. 2015) (concluding
that an erroneous application of the Sentencing Guidelines,
including a career offender designation, is not cognizable on
collateral review pursuant to § 2255).
the Hobbs Act robbery argument, Petitioner makes two
arguments why it is not a § 924(c) predicate crime of
violence: (1) that Hobbs Act robbery does not qualify
categorically under § 924(c)'s force clause in light
of Descamps v. United States, 570 U.S. 254 (2013)
and related cases; and (2) that § 924(c)'s residual
clause is unconstitutionally vague in light of Johnson v.
United States, 135 S.Ct. 2551 (2015).
argument as to the force clause is not persuasive. Every
circuit court that has addressed the issue has concluded that
substantive Hobbs Act robbery is a valid § 924(c)
predicate under the force clause. See United States v.
Garcia-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018);
United States v. Melgar-Cabrera, 892 F.3d 1053,
1064-65 (10th Cir. 2018); United States v. Hill, 890
F.3d 51, 60 (2d Cir. 2018); United States v. Gooch,
850 F.3d 285, 292 (6th Cir. 2017); United States v.
Rivera, 847 F.3d 847, 848-49 (7th Cir. 2017); United
States v. Buck, 847 F.3d 267, 274-75 (5th Cir. 2017);
United States v. Howard, 650 Fed.Appx. 466, 468 (9th
Cir. 2016); In re Saint Fleur, 824 F.3d 1337, 1340-41 (11th
Cir. 2016); United States v. House, 825 F.3d 381,
387 (8th Cir. 2016). There is no basis to conclude that the
Fourth Circuit would rule contrary to its sister
analysis in the above cases applies here and is persuasive.
Accordingly, the Court embraces that authority and concludes
that Hobbs Act robbery qualifies as a § 924(c) predicate
under the force clause. See also Stokeling v. United
States, 139 S.Ct. 544, 551, 554 (2019) (concluding that
a robbery conviction is a violent felony under the ACCA's
force clause as long as the conviction categorically required
force sufficient to overcome a victim's resistance,
however slight the resistance); United States v.
Evans, 848 F.3d 242, 247-48 (4th Cir. 2017) (concluding
that carjacking under 18 U.S.C. § 2119 is a crime of
violence under § 924(c)(3)(A)); United States v.
McNeal, 818 F.3d 141, 153 (4th Cir. 2016) (concluding
that bank robbery under 18 U.S.C. § 2113(a) is a crime
of violence under § 924(c)(3)(A)).
the Guidelines are not subject to a vagueness challenge and
because Hobbs Act robbery qualifies as a crime of violence
under § 924(c)(3)(A), Petitioner's petition for
relief pursuant to § 2255, ECF No. 267, is DENIED. This
action is hereby DISMISSED.
Court has reviewed this petition in accordance with Rule 11
of the Rules Governing Section 2255 Proceedings. In order for
the Court to issue a certificate of appealability, Rule 11
requires that Petitioner satisfy the requirements of 28
U.S.C. § 2253(c)(2), which in turn requires that he
“has made a substantial showing of the denial of a
constitutional right.” The Court concludes that he has
not made such a showing, and it is therefore not appropriate
to issue a certificate of appealability as to the issues
raised in this petition. Petitioner is advised that he may
seek a certificate from the Fourth Circuit Court of Appeals
under Rule 22 of the Federal Rules of Appellate Procedure.
 The Court notes that this issue is
currently before the Fourth Circuit in at least three cases:
United States v. Allen, No. 4:02-cr-00750-TLW-2
(D.S.C. Feb. 5, 2019) (order denying § 2255 petition),
appeal docketed, No. 19-6305 (4th Cir. Mar. 4, 2019);
United States v. Gleaton, No. 3:18-cr-00006-TLW-1
(D.S.C. Mar. 26, 2018) (order denying motion to dismiss),
appeal docketed, No. 18-4558 (4th Cir. Aug. 8, 2018);
United States v. Wilson, No. 3:17-cr-00138-TLW-1
(D.S.C. Sept. 22, 2017) (order denying motion to dismiss),
appeal docketed, No. 18-4159 (4th Cir. Mar. 15,
 As to § 924(c)'s residual
clause, the Fourth Circuit recently concluded that it is
unconstitutionally vague. United States v. Simms,
914 F.3d 229, 232 (4th Cir. 2019) (en banc). However, Simms
has no impact on this case because that decision only
involved the residual clause, not the force clause.
 A response from the Government is not
required because “the motion and the files and records
of the case conclusively show that [Petitioner] is entitled
to no relief . . ...