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United States v. Gingles

United States District Court, D. South Carolina, Rock Hill Division

July 10, 2019

United States of America,
v.
Roy Benquess Gingles, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE, SENIOR UNITED STATES DISTRICT JUDGE

         Defendant filed a motion in this court pursuant to 28 U.S.C. § 2255, challenging his conviction for a violation of 18 U.S.C. § 924(c). ECF No. 611. The Government filed a response in opposition and a motion for summary judgment. ECF Nos. 623, 624. Defendant filed a reply. ECF No. 640. Defendant also filed a pro se letter on July 1, 2019, requesting the court consider the recent Supreme Court case, United States v. Davis, No. 18-431, and grant him relief. ECF No. 675.

         I. Background

         On July 14, 1999, Defendant was charged with the following counts: (1) conspiracy to commit Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(b)(3); (2) 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); five counts of Hobbs Act Robbery, in violation of § 1951 (Counts 3, 5, 9, 12, 14); and five 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) (Counts 4, 6, 10, 13, 15). ECF No. 1.

         On October 29, 1999, Defendant pled guilty to Counts 13 and 15 of the Indictment: two counts of § 924(c) brandishing and discharging a firearm in relation to Hobbs Act Robbery, one of which took place on April 21, 1999, and the other on April 29, 1999. ECF Nos. 1, 188. Judgment was entered on April 7, 2000. ECF No. 274. Defendant was sentenced to a total term of 300 months, consisting of 60 months as to Count 13 and 240 months as to Count 15, consecutive. Id. Defendant did not appeal.

         II. 18 U.S.C. § 924(c)

         Title 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).[1]

         The 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, or
(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.[2]

18 U.S.C. § 924(c)(3).

         On June 24, 2019, the Supreme Court decided the residual clause of § 924(c)(3)(B) was void for vagueness. United States v. Davis, __ S.Ct. __, 2019 WL 2570623, at *13 (June 24, 2019). In doing so, the Court rejected application of a ...


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