United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
seeks relief in this court pursuant to 28 U.S.C. § 2255
and Johnson v. United States, 576 U.S., 135 S.Ct.
2551 (2015). ECF No. 379. Defendant's original pro
se motion argues that his 18 U.S.C. § 924(c) convictions
should be vacated because his underlying offenses, Hobbs Act
Robbery, fail to qualify as a “crime of
violence.” The Federal Public Defender filed a
supplemental motion to vacate on July 18, 2016. ECF No. 390.
The Government filed a response in opposition and filed a
motion to dismiss Defendant's § 2255 motion. ECF
Nos. 392, 393. Defense counsel filed a reply, ECF No. 396,
and Defendant, pro se, filed two supplements (ECF Nos. 399,
400). The Government filed a response in opposition to
Defendant's supplement (ECF No. 403), and Defendant
replied (ECF No. 404). Defendant filed an additional motion
to lift stay/supplement. ECF No. 408.
November 20, 2008, Defendant was charged via superseding
indictment with four counts: two counts of Hobbs Act Robbery,
in violation of 18 U.S.C. § 1951 (robbing a pharmacy at
gunpoint) (Counts 1 and 3); and two counts of using and
brandishing a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c) (Counts 2
and 4). ECF No. 75. Defendant went to trial and was found
guilty on all counts. ECF No. 157.
8, 2009, Defendant appeared for sentencing. The court granted
Defendant's request for a variance and sentenced him to
441 months, consisting of 57 months as to Counts 1 and 3; 84
months as to Count 2, to run consecutively; and 300 months as
to Count 4, consecutive. ECF No. 195. Defendant appealed his
convictions and sentence, but the Fourth Circuit granted an
unopposed motion to dismiss the appeal under Rule 42(b) of
the Federal Rules of Appellate Procedure. ECF No. 261.
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).
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,
(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.
18 U.S.C. § 924(c)(3). The first clause is known as the
“force” clause, while the second is the
“residual” clause. United States v.
Fuertes, 805 F.3d 485, 498 (4th Cir. 2015).
24, 2019, the Supreme Court decided the residual clause of
§ 924(c)(3)(B) is 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