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United States v. Tisdale

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

July 18, 2019

United States of America,
v.
Monticello Tisdale, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE Senior United States District Judge.

         Defendant 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), and requests appointment of counsel. ECF Nos. 51, 52. The Government filed a motion to dismiss and memorandum in support. ECF No. 58. The Federal Public Defender filed a supplemental motion to vacate on June 23, 2016. ECF No. 63. The Government thereafter filed a response in opposition and a motion for summary judgment. ECF Nos. 65, 66. Defense counsel filed a reply. ECF No. 71. The court has also received letters in support from Defendant's family members.

         I. Background

         On September 22, 2004, Defendant was charged in a seven count Indictment with the following: four counts of Hobbs Act Robbery, in violation of 18 U.S.C. § 1951 (Counts 1, 3, 5, and 7); and three counts of use and possession of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Counts 2, 4, and 6). ECF No. 1.

         On February 1, 2005, Defendant pled guilty, pursuant to a Plea Agreement, to Counts 2 and 4 of the Indictment: two counts of § 924(c) possession of a firearm in furtherance of a crime of violence, namely Hobbs Act Robbery, one of which took place on February 21, 2004, and the other on February 23, 2004. ECF Nos. 1, 36. Judgment was entered on April 25, 2005. ECF No. 43. Defendant was sentenced to a total term of 360 months, consisting of 60 months as to Count 2 and 300 months as to Count 4, consecutive. Id. Defendant did not appeal his convictions or sentence. Defendant's sentence was later reduced to a total term of 262 months. ECF No. 49.

         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).

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.

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).

         On June 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 case-specific ...


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