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United States v. Miller

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

July 23, 2019

United States of America,
v.
Stephen Ray Miller, 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).[1] 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. 397.[2]

         I. Background

         On 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.

         On June 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.

         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 approach for § 924(c) and applied the categorical approach. Id. at *6-*10.

         III. ...


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