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United States v. Collins

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

July 22, 2019

United States of America,
v.
Kelvin Spencer Collins, 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. 664. The Government filed a response in opposition and a motion for summary judgment. ECF Nos. 670, 671. Defendant filed a reply. ECF No. 674.

         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); three counts of Hobbs Act Robbery, in violation of § 1951 (Counts 7, 12, 14); and three 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 8, 13, 15). ECF No. 1.

         On February 25, 2000, after trial had begun, Defendant changed his plea of not guilty and 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 (Count 12), and the other on April 29, 1999 (Count 14). Judgment was entered on May 24, 2000. ECF No. 300. Defendant was sentenced to a total term of 420 months, consisting of 120 months as to Count 13 and 300 months as to Count 15, consecutive. Id. Defendant appealed, but the Fourth Circuit affirmed the District Court. ECF No. 366. On December 14, 2001, an Amended Judgment was entered reducing the total sentence to 360 months pursuant to Fed. R. Crim. P. 35(b). ECF No. 375.

         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) 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 approach and applied the categorical approach. Id. at *6-*10.

         III. ...


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