United States District Court, D. South Carolina, Florence Division
L. Wooten Senior United States District Judge
Ithamar Renee Southern pled guilty to two counts of using a
firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c), and the Court sentenced
him to a total of 32 years incarceration, consisting of 7
years on Count 4 and 25 years consecutive on Count 11. ECF
No. 219. Count 4 was related to a Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a). Count 11 was related
to a kidnapping and carjacking, in violation of 18 U.S.C.
§§ 1201(a) and 2119, respectively.
Petitioner's initial pro se § 2255 petition, he only
challenged Count 4, saying that Hobbs Act robbery is not a
valid § 924(c) predicate conviction and that he was
therefore “convicted of a non-offense as to Count 4
over which this court did not have jurisdiction.” ECF
No. 342-1 at 1. After the Government moved for summary
judgment, ECF No. 344, an assistant federal public defender
noticed his appearance on Petitioner's behalf, ECF No.
363, filed a response in opposition to summary judgment, ECF
No. 364, and filed a motion seeking to amend the petition to
also challenge his conviction on Count 11, ECF No. 365, which
the Court granted, ECF No. 397. The proposed amended petition
filed in conjunction with the motion to amend was then filed
at ECF No. 398.
Petitioner's conviction on Count 4, he makes two
arguments why Hobbs Act robbery 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 §
Petitioner's conviction on Count 11, the Fourth Circuit
has foreclosed his argument, holding that “the
carjacking statute qualifies as a crime of violence under
Section 924(c), because the carjacking statute ‘has as
an element the use, attempted use, or threatened use of
physical force against the person or property of
another.'” Evans, 848 F.3d at 244 (quoting 18
U.S.C. § 924(c)(3)(A)).
Hobbs Act robbery and carjacking qualify as crimes of
violence under § 924(c)(3)(A), the Government's
Motion for Summary Judgment, ECF No. 344, is GRANTED, and
Petitioner's petition and amended petition for relief
pursuant to § 2255, ECF Nos. 342, 398, are 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, 2018).
 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 ...