United States District Court, D. South Carolina, Florence Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE, SENIOR UNITED STATES DISTRICT JUDGE.
seeks relief in this court pursuant to 28 U.S.C. § 2255
and Johnson v. United States, 576 U.S. __, 135 S.Ct.
2551 (2015). ECF Nos. 260, 271. Defendant’s original
pro se motion argues that his 18 U.S.C. §
924(c) conviction should be vacated because his underlying
offense fails to qualify as a “crime of
violence.” ECF No. 260. The Federal Public Defender
filed a supplemental motion to vacate on July 20, 2016. ECF
No. 271. The Government filed a motion to dismiss
Defendant’s § 2255 motion, citing only
untimeliness as grounds to dismiss. ECF No. 275. Defense
counsel filed a reply. ECF No. 276. This matter was held in
abeyance pending the en banc decision of the Fourth
Circuit in United States v. Simms, 914 F.3d 229 (4th
Cir. 2019), and the decision of the Supreme Court in
United States v. Davis, 139 S.Ct. 2319, 2336 (2019).
After Simms and Davis were decided, the
court entered an order requesting supplemental briefing from
the parties. ECF No. 318. Defendant filed a supplemental
brief in support (ECF No. 334) and the Government filed a
response in opposition (ECF No. 336).
March 18, 1998, Defendant was charged via Fourth Superseding
Indictment with three counts: attempting to kill an
individual with the intent to prevent his attendance and
testimony in an official proceeding, in violation of 18
U.S.C. §§ 1512(a)(1) and 2 (Count 5); knowingly
using and carrying firearms during and in relation to a crime
of violence, specifically, an attempt to kill another person
with intent to prevent his attendance and testimony at an
official proceeding, in violation of 18 U.S.C. § 924(c)
(Count 6); and felon in possession of a firearm (Count 7).
ECF No. 43. Defendant went to trial and was found guilty on
all three counts. ECF No. 77.
December 21, 1998, Defendant appeared for sentencing.
Defendant was sentenced to 300 months, consisting of 240
months on Count 5, 120 months on Count 7, concurrent, and 60
months as to Count 6, to run consecutively. ECF No. 112.
Defendant appealed his convictions and sentence, but the
Fourth Circuit affirmed. ECF No. 149.
18 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).
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.
18 U.S.C. § 924(c)(3) (emphasis added). The first clause
is known as the “force” clause, while the second
is the “residual” clause. United States v.
Fuertes, 805 F.3d 485, 498 (4th Cir. 2015).
Fourth Circuit has held the residual clause of
§924(c)(3)(B) is unconstitutionally vague and therefore
void. United States v. Simms, 914 F.3d 229, 236 (4th
Cir. 2019). However, the mandate in Simms was held
in abeyance pending the Davis decision in the
Supreme Court, which would conclusively decide the issue.
24, 2019, the Supreme Court decided the residual clause of
§ 924(c)(3)(B) is void for vagueness. United States
v. Davis, 588 U.S. __, 139 S.Ct. 2319, 2336 (2019). In
doing so, the Court rejected application of a case-specific