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. 422. The Government filed
a motion to dismiss or for summary judgment and a response in
opposition on the merits. ECF No. 435, 436. Defendant filed a
reply. ECF No. 450. Defendant also filed a motion to hold his
§ 2255 motion in abeyance pending Sessions v.
Dimaya, which the court granted. ECF Nos. 451, 452.
December 18, 2002, Defendant was charged in a Third
Superseding Indictment with seven counts: 1) Hobbs Act
Robbery, in violation of 18 U.S.C. § 1951; 2) knowing
use and carrying of a firearm in relation to a crime of
violence, causing the death of a person through the use of a
firearm, in violation of 18 U.S.C. § 924(j); 3) felon in
possession of a stolen firearm, in violation of 18 U.S.C.
§ 922(g); 4) conspiracy to use and carry firearms in
furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(o); 5) felon in possession of a firearm; 6)
possession and disposal of a stolen firearm, in violation of
18 U.S.C. § 922(j); and 7) obstruction of justice via
destruction of evidence, in violation of 18 U.S.C. §
1503. ECF No. 231.
proceeded to trial and was found guilty on Counts 1, 2, 4,
and 5; and not guilty on Counts 3 and 6. ECF No. 288.
Judgment was entered on August 19, 2004. ECF No. 341.
Defendant was sentenced to a total term of Life imprisonment,
consisting of 240 months as to Count 1, Life as to Count 2,
240 months as to Count 4, and 120 months as to Count 5, to
run concurrently. Id. Defendant appealed, and the
Fourth Circuit affirmed his convictions but remanded for
Booker resentencing. ECF No. 369. An Amended
Judgment was entered August 22, 2006, and Defendant was again
sentenced to Life imprisonment. ECF No. 377.
18 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 years
or for life; and
2) if the killing is manslaughter (as defined in section
1112), be punished as provided in that section.
18 U.S.C. § 924(j). As subsection (j) is committed
“in the course of a violation of subsection (c),
” the same analysis applies in determining whether an
offense qualifies as a predicate conviction under §
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.
argues his substantive Hobbs Act Robbery conviction in Count
1 cannot serve as a predicate offense for his § 924(j)
conviction in Count 2, as it is not a crime of violence as
defined in § 924(c)(3)(A), the “force clause,
” and §924(c)(3)(B) is invalid. ECF No. 422. The
Government has moved for summary judgment, arguing
Defendant's claim was procedurally defaulted, is
untimely, and fails on the merits as Hobbs Act Robbery is
categorically a crime of violence under the force clause and
the residual clause is not unconstitutionally vague. ECF No.
435. Defendant responded, arguing his motion was timely as it
was filed within a year after Johnson, and the claim
was not procedurally defaulted because it could not have been
raised previously. ECF No. 450. He also argues the Government
“constructively amend[ed] the statutory language of the
Hobbs Act violation charged in Count 1 to a conspiracy to
commit Hobbs Act Robbery, which no longer qualifies as a
predicate crime of violence under 18 U.S.C. Section
924(c).” Id. at 1.
Defendant's Constructive Amendment Argument
initial matter, the court disagrees the Government
“constructively amended” the Hobbs Act Robbery
charged in Count 1 from a substantive count into a
conspiracy. The court has reviewed the trial transcript and
determined the Government was discussing the charged
conspiracy to use and carry firearms in furtherance of a
crime of violence, in violation of 18 U.S.C. § 924(o)
(Count 4) and a proposed Pinkerton charge for Count 2 in the
transcript portions cited by ...