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United States v. Sapp

United States District Court, D. South Carolina, Orangeburg Division

July 16, 2019

United States of America,
v.
Jonathan Bernard Sapp, Defendant.

          OPINION AND ORDER

          CAMERON McGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE

         Defendant filed a pro se motion in this court pursuant to 28 U.S.C. § 2255, challenging his conviction for a violation of 18 U.S.C. § 924(j). ECF No. 406. The Federal Public Defender entered an appearance in his case, and filed a motion to vacate. ECF No. 410. The Government filed a motion to dismiss, arguing the motion was second or successive and not authorized by the Fourth Circuit. ECF No. 414. Defendant filed a response, requesting the court construe his pleading as a successive petition and forward it to the Fourth Circuit for proper consideration. ECF No. 415. The court entered an Order sending Defendant's motion to the Fourth Circuit (ECF No. 416), which authorized Defendant to file a second or successive § 2255 motion (ECF No. 419). The Government thereafter filed a motion to dismiss or for summary judgment and a response in opposition on the merits. ECF No. 425, 426. Defendant filed a reply. ECF No. 427.

         I. Background

         On September 18, 2002, Defendant was charged in a Second Superseding Indictment with four counts. ECF No. 142. On October 7, 2002, Defendant pled guilty to Counts 1 and 2 of the Second Superseding Indictment: one count of Hobbs Act Robbery and one count of causing the death of another person with a firearm during and in relation to a crime of violence, such killing being murder as defined in 18 U.S.C. § 1111, in violation of § 924(j). ECF Nos. 142, 203, 205. Judgment was entered on June 24, 2003. ECF No. 307. Defendant was sentenced to a total term of 500 months, consisting of 240 months as to Count 1 and 500 months as to Count 2, to run concurrently. Id. Defendant did not appeal.

         II. 18 U.S.C. § 924(c), (j)

         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).

         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.[1]

18 U.S.C. § 924(c)(3).

         In the same statute, subsection (j) notes:

A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall -
1) if the killing is a murder (as defined in section 1111), be punished by death or by imprisonment of any term of ...

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