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United States v. Brant

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

September 18, 2019

United States of America,
v.
Leon Brant Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE, SENIOR UNITED STATES DISTRICT JUDGE.

         Defendant 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).

         I. Background

         On 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.

         On 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.

         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).

         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.

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).

         The 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.

         On June 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 ...


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