United States District Court, D. South Carolina, Florence Division
L. Wooten Terry L. Wooten Senior United States District Judge
Michael Scott Crisp pled guilty to using a firearm during and
in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c) (Count 4). His § 924(c) conviction was
related to a Hobbs Act robbery, in violation of 18 U.S.C.
§ 1951(a) (Count 1). The Court sentenced him as a career
offender to 204 months incarceration. ECF No. 103.
February 2016, Petitioner filed a pro se § 2255
petition, then a supplemental petition. ECF Nos. 142, 149.
His petition was not entirely clear, but the Court construed
it to be alleging that he should be resentenced without the
application of the career offender enhancement in light of
Johnson v. United States, 135 S.Ct. 2551 (2015). In
light of the Court's standing order appointing the
Federal Public Defender to represent defendants who may be
entitled to relief under Johnson, the Court appointed the
Federal Public Defender to represent him. ECF No. 155.
However, no one from the Federal Public Defender's office
noticed an appearance on Petitioner's behalf.
the Supreme Court issued its decision in Beckles v.
United States, 137 S.Ct. 886 (2017), the Court denied
the petition. ECF No. 158.
the Court denied the petition, the oversight was realized and
an assistant federal public defender noticed his appearance.
ECF No. 161. Petitioner, through counsel, filed a consent
Rule 60(b)(6) motion, along with an accompanying memorandum
of law, seeking to vacate the order denying his petition and
clarify his petition to also raise the issue of whether Hobbs
Act robbery is not a valid § 924(c) predicate. ECF Nos.
162, 163. In the motion, counsel says that “due to the
sheer volume of Johnson petitions pending, [counsel] did not
realize that a notice of appearance had not been filed,
” and that “counsel did not receive notice of the
dismissal.” ECF No. 162 at 1. For the reasons set forth
in the motion and without objection from the Government, the
Court concludes that it would be appropriate to vacate the
prior order denying his § 2255 petition and consider it
anew. Accordingly, Petitioner's motion to vacate, ECF No.
162, is GRANTED. The Court's prior order denying his
petition and the corresponding judgment, ECF Nos. 158, 159,
waded through the procedural morass, the Court now turns to
the merits of the petition. Considering Petitioner's
original pro se filings together with the assistant federal
public defender's later filings, 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
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 circuits.
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. 142, 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.