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United States v. Mobley

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

August 26, 2019

United States of America,
v.
Eddie Wilbert Mobley, 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. 343. The Government filed a motion to dismiss or for summary judgment. ECF No. 347. Defendant filed a response in opposition to summary judgment. ECF No. 348.[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”; 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, ” and 7) felon in possession of a firearm. ECF No. 123.

         On April 3, 2013, Defendant pled guilty, pursuant to a Plea Agreement, to Counts 1, 5, and 7 of the Indictment: conspiracy to commit Hobbs Act Robbery (Count 1), a violation of § 924(c) (Count 5), and felon in possession (Count 7). ECF No. 142. 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 July 11, 2013. ECF No. 216. Defendant was sentenced to a total term of 111 months, consisting of 51 months as to Counts 1 and 7, to run concurrently, and 60 months as to Count 5, consecutive. Id. Defendant did not appeal. On July 27, 2015, an Amended Judgment was entered pursuant to Amendment 782, reducing Defendant's sentence to a total term of 101 months, consisting of 41 months as to Counts 1 and 7, concurrent, and 60 months consecutive as to Count 5. ECF No. 247.

         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 Nos. 327, 343. 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. ECF No. 343 at 3. The Government has moved for summary judgment, arguing Defendant's claim is barred by his valid guilty plea and appeal waiver, is untimely, [5] 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. 347-1. Defendant responded, arguing his §924(c) conviction was based only on the Hobbs Act Robbery conspiracy, not the drug trafficking crimes. ECF No. 348. He also argues his appeal waiver should not be enforced and his motion was not untimely. Id.

         The court finds Defendant's § 924(c) conviction is no longer valid. Conspiracy to commit Hobbs Act Robbery no longer qualifies as a crime of violence under the now invalidated residual clause or under the force clause of § 924(c), and Defendant did not admit facts supporting the elements of Counts 2 or 3, the drug trafficking crimes referenced in Count 5.

         a. Analysis

         Defendant was charged with knowingly using or carrying a firearm during and in relation to, and possessing a firearm in furtherance of, a drug trafficking crime and a crime of violence. ECF No. 123 at 5 (“That on or about October 30, 2012, in the District of South Carolina, the Defendants . . . did knowingly use and carry firearms during and in relation to, and did possess firearms in furtherance of, a drug trafficking crime as set forth in Counts 2 and 3 of this Indictment, and did knowingly use and carry firearms during and in relation to, and did possess firearms in furtherance of, a crime of violence as set forth in Count 1 of this Indictment, which are felonies prosecutable in a Court of the United States . . .”). His Plea Agreement reflects both bases for §924(c), though he did not plead guilty to either drug trafficking crime. ECF No. 142 at ¶ 1 (“The Defendant agrees to plead guilty to Counts 1, 5, and 7 of the Superseding Indictment now pending . . . Count 5 charges using/carrying firearm(s) during and in relation to, and possessing firearms in furtherance of a crime of violence and/or drug trafficking crime.”). At his change of plea hearing, the court explained the charge in Count 5 as follows:

Court: Count 5 charges that on or about October the 30 of 2012, here in South Carolina, that you along with others did knowingly use and carry firearms during and in relation to and did possess firearms in furtherance of a drug trafficking crime as set forth in Counts 2 and 3 of the indictment, and you did knowingly use and carry firearms during and in relation to and did possess the firearms in furtherance of a crime of violence as set forth in Count 1 of the indictment, . . .In order to prove Count 5, the Government would have to be able to prove that you knowingly used or carried a firearm during and in relation to and/or possessed a firearm in furtherance of a crime of violence or a drug trafficking crime, or aided and abetted another in committing such an offense, and that the crime of violence or the drug trafficking crime is prosecutable in a court of the United States. . . .Do you understand the charge, what the Government would have to prove, and the penalties that go with Count 5? Mr. Mobley?
… Defendant: Yes, ma'am.

ECF No. 340 at 32-34.

         The Government, through ATF Special Agent Brian Lovin, summarized the evidence against Defendant, explaining the involvement of a confidential informant:

[T]he confidential informant presented an opportunity to Mr. Jones that he knew individuals that were drug runners for other drug traffickers, and a robbery opportunity was presented to Mr. Jones. Later Mr. Jones and Mr. Boyce met with two undercover ATF agents to discuss that robbery opportunity of ten to 12 kilos of cocaine. . .
Later Mr. Jones, Mr. Boyce, Mr. Davis, and Mr. Howard also met with the undercover ATF agents to discuss that robbery, . . . [a]t the end of each of these meetings each individual was given the opportunity to withdraw from the conspiracy by the undercover agents. Each declined and again presented that they were willing to participate in the armed robbery of these drug traffickers for ten to twelve kilos of cocaine.
On October the 30th each of these individuals, to include Mr. Mobley, met with the ATF under - I'm sorry - the confidential informant. During that date Mr. Jones removed himself or did not go to the robbery. Instead, he provided a firearm to Mr. Mobley to go in his place which was a .40 caliber Taurus pistol.
These individuals, to include Mr. Howard - I mean, sorry - Mr. Boyce met with the undercover agents again. During that meeting prior to their arrest the undercover agents met with Mr. Mobley to discuss his willingness to participate in the robbery, discussed details of the robbery, and ...

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