United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON McGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
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. 302. The Government filed a motion
to dismiss or for summary judgment. ECF No. 314. Defendant
filed a response in opposition to summary judgment. ECF No.
February 19, 2013, Defendant was charged in a Superseding
Indictment with the following counts: 1) conspiracy to commit
Hobbs Act Robbery; 2) conspiracy to possess with intent to
distribute cocaine; 3) attempt to possess with intent to
distribute cocaine; 4) conspiracy to knowingly use and carry
a firearm in relation to a drug trafficking crime “as
set forth in Counts 2 and 3 of this Indictment, ” and
in relation to a crime of violence “as set forth in
Count 1 of this Indictment”; and 5) knowing use and
carrying of a firearm during and in relation to a drug
trafficking crime “as set forth in Counts 2 and 3 of
this Indictment, ” and in relation to a crime of
violence “as set forth in Count 1 of this
Indictment.” ECF No. 123.
12, 2013, Defendant pled guilty, pursuant to a Plea
Agreement, to Counts 1 and 5 of the Indictment: conspiracy to
commit Hobbs Act Robbery and a violation of § 924(c).
ECF No. 196. The Plea Agreement noted Count 5, the §
924(c) count, charged “using/carrying firearm(s) during
and in relation to, and possessing firearms in furtherance of
a crime of violence and/or drug trafficking crime.”
Id. at ¶ 1. Judgment was entered on October 9,
2013. ECF No. 216. Defendant was sentenced to a total term of
106 months, consisting of 46 months as to Count 1 and 60
months as to Count 5, consecutive. Id. Defendant
appealed, but the appeal was dismissed based on
Defendant's appeal waiver in the Plea Agreement. ECF No.
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)(1)(A).
“drug trafficking crime” for purposes of §
924(c) means “any felony punishable under the
Controlled Substances Act (21 U.S.C. §§ 801 et
seq.), the Controlled Substances Import and Export Act (21
U.S.C. §§ 951 et seq.), or chapter 705 of title
46.” § 924(c)(2). 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,
(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
Fourth Circuit has held conspiracy to commit Hobbs Act
Robbery cannot qualify as a crime of violence under the force
clause of §924(c)(3)(A). United States v.
Simms, 914 F.3d 229, 233-34 (4th Cir. 2019). The Simms
court also concluded the residual clause of
§924(c)(3)(B) is unconstitutionally vague and therefore
void. Id. at 236.
24, 2019, the Supreme Court also decided the residual clause
of § 924(c)(3)(B) is void for vagueness. United
States v. Davis, 139 S.Ct. 2319, 2336 (2019). In
doing so, the Court rejected application of a case-specific
approach for § 924(c) and applied the categorical
approach.Id. at 2327-2332.
argues his § 924(c) conviction in Count 5 was predicated
on the conspiracy to commit Hobbs Act Robbery conviction in
Count 1, which cannot serve as an underlying offense 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. 302. Defendant further argues the §
924(c) count was not predicated on the drug trafficking
crimes in Counts 2 and 3, as Defendant was not convicted on
those counts. Id. The Government has moved for
summary judgment, arguing Defendant's claim is barred by
his valid guilty plea and appeal waiver, is untimely, and
fails on the merits as Defendant's § 924(c) charge
was based on drug trafficking crimes as well as a crime of
violence. ECF No. 314-1. ...