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United States v. Singleton

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

July 31, 2019

United States of America,
v.
John Singleton, Defendant.

          OPINION AND ORDER

          Cameron McGowan Currie Senior United States District Judge.

         Defendant filed a pro se motion in this court pursuant to 28 U.S.C. § 2255, [1] challenging his conviction for a violation of 18 U.S.C. § 924(j).[2] 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.

         I. Background

         On 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.

         Defendant proceeded to trial and was found guilty on Counts 1, 2, 4, and 5; and not guilty on Counts 3 and 6.[3] 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.

         II. 18 U.S.C. § 924(c), (j)

         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).

         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.[4]

18 U.S.C. § 924(c)(3).

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

         III. Discussion

         Defendant 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.[5] 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.

         a. Defendant's Constructive Amendment Argument

         As an 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 ...


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