United States District Court, D. South Carolina, Orangeburg Division
OPINION AND ORDER
CAMERON McGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
U.S.C. § 924(c), (j)
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).
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
18 U.S.C. § 924(c)(3).
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,
1) if the killing is a murder (as defined in section 1111),
be punished by death or by imprisonment of any term of ...