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United States v. Boyce

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

August 26, 2019

United States of America,
v.
John Wesley Boyce, III, Defendant.

          OPINION AND ORDER

          CAMERON McGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.

         Defendant 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).[1] 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. 318.[2]

         I. Background

         On 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.

         On July 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. 230.

         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)(1)(A).

         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, 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.[3]

§ 924(c)(3).

         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.

         On June 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.[4]Id. at 2327-2332.

         III. Discussion

         Defendant 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 ยง 924(c) charge was based on drug trafficking crimes as well as a crime of violence. ECF No. 314-1. ...


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