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. 383. Defendant's original pro
se motion argues that his 18 U.S.C. § 924(c) conviction
should be vacated because his underlying offense, Hobbs Act
Robbery, fails to qualify as a “crime of
violence.” The Federal Public Defender filed a motion
to join in this pro se motion on June 29, 2016. ECF No. 387.
The Government filed a response in opposition and a motion to
dismiss Defendant's § 2255 motion. ECF Nos. 389,
394. Defendant filed a response in opposition to the
Government's motion to dismiss. ECF No.
November 20, 2008, Defendant was charged via superseding
indictment with two counts: Hobbs Act Robbery, in violation
of 18 U.S.C. § 1951 (robbing a pharmacy at gunpoint)
(Count 3), and using and brandishing a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c) (Count 4). ECF No. 75. Defendant went to trial
and was found guilty on both counts.
8, 2009, Defendant appeared for sentencing. The court granted
Defendant's request for a variance and sentenced him to
121 months, consisting of 37 months as to count 3 and 84
months as to count 4, to run consecutively. ECF No. 200.
Defendant appealed his conviction 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.
18 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 case-specific approach for § 924(c) and
applied the categorical approach. Id. at *6-*10.