United States District Court, E.D. Tennessee, Chattanooga
Travis R. McDonough
R. MCDONOUGH, UNITED STATES DISTRICT JUDGE
the Court now is Petitioner's pro se motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. (Doc. 29.) He bases his request for relief on
Johnson v. United States, 135 S.Ct. 2551 (2015), in
which the Supreme Court held that the residual clause of the
Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e), was unconstitutionally vague. (Id.)
The United States responded in opposition on August 3, 2016.
(Doc. 30.) Petitioner did not reply and the time for doing so
has now passed. E.D. Tenn. L.R. 7.1, 7.2. For the following
reasons, Petitioner's § 2255 motion will be DENIED
and DISMISSED WITH PREJUDICE.
2005, Petitioner pled guilty to, and was subsequently
convicted of, two Hobbs Act robberies, in violation of 18
U.S.C. § 1951, and two counts of using and carrying a
firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c). (Docs. 20, 25.) This
Court calculated the applicable Guideline range as 423 to 438
months' imprisonment- consisting in part of cumulative
statutorily mandated terms of thirty years' imprisonment
for the two § 924(c) offenses (see generally
Presentence Investigation Report ("PSR")), but
sentenced Petitioner to a below-guidelines term of 396
months' incarceration followed by three years'
supervised release. (Doc. 25.)
direct appeal was taken and, as a result, the conviction
became final for purposes of § 2255(f)(1) on May 10,
2005, at expiration of time to file an appeal. Ten years
later, Petitioner filed the instant petition seeking
correction of his sentence in light of Johnson.
argument appears to be that the Johnson decision
invalidated the similarly-worded residual clause in §
924(c)(3)(B), thereby removing Hobbs Act robbery from the
list of "crimes of violence" sufficient to support
a conviction under § 924(c)(1)(A). (Doc. 29 (arguing
that he is entitled to vacatur of his § 924(c)
convictions).) His argument fails for two reasons.
binding Sixth Circuit precedent holds that while
Johnson invalidated the residual provision of the
Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e), and identically worded clause in Section 4B1.2
of the United States Sentencing Guidelines, §
924(c)(3)(B)'s definition of crime of violence remains
unaffected. See United States v. Pawlak, 822
F.3d 902, 911 (6th Cir. 2016) (concluding "rationale of
Johnson applies equally" to the Guidelines'
definition of crime of violence); United States v.
Taylor, 814 F.3d 340, 376-79 (6th Cir. 2016)
(recognizing at least four "significant
differences" between the residual clause in §
924(c)(3)(B) and the ACCA's residual clause and noting
"the argument that Johnson effectively
invalidated [the former] is . . . without merit"). As
such, his Hobbs Act robberies remain crimes of violence
capable of supporting the convictions under §
even Johnson's reasoning could be used to
invalidate § 924(c)(3)(B)'s residual clause,
Petitioner's convictions for Hobbs Act robbery would
remain crimes of violence under the provision because the
offenses qualify under the use-of-physical-force clause
contained in § 924(c)(3)(A). An offense qualifies as a
crime of violence if it "has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another." 18 U.S.C. §
924(c)(3)(A). Petitioner's convictions for Hobbs Act
robbery, which by definition involves the taking of property
"by means of actual or threatened force, or violence, or
fear of injury, " 18 U.S.C. § 1951(b)(1),
categorically fall within the scope of that provision.
See, e.g., In re Fleur, 824 F.3d 1337, 1340 (11th
Cir. 2016) (finding, post-Johnson, that Hobbs Act
robbery categorically qualifies as a crime of violence under
the use-of-physical-force clause in 18 U.S.C. §
924(c)(3)(A)); United States v. Howard, 650
Fed.App'x 466, 468 (9th Cir. 2016) (same); accord
United States v. House, 825 F.3d 381, 386-87 (8th Cir.
2016) (finding that Hobbs Act robbery categorically qualifies
as a "serious violent felony" under 18 U.S.C.
§ 3559(c)(2)(F)(ii)'s use-of-physical-force clause);
United States v. McBride, 826 F.3d 293, 295-96 (6th
Cir. 2016) (finding that federal bank robbery, in violation
of 18 U.S.C. § 2113(a), which can be committed "by
force and violence, or by intimidation, " falls within
the Section 4B1.2(a)'s use-of-physical-force clause);
United States v. Mitchell, 743 F.3d 1054, 1058-60
(6th Cir. 2014) (finding that Tennessee robbery, which can be
committed "by violence or putting the person in fear,
" categorically qualifies as a violent felony under the
ACCA's use-of-physical-force clause). In light of the
foregoing, Johnson is inapposite and cannot operate
as a basis for collateral relief.
reasons discussed, Petitioner's § 2255 motion (Doc.
29) will be DENIED and DISMISSED WITH PREJUDICE. The Court
will CERTIFY any appeal from this action would not be taken
in good faith and would be totally frivolous. Therefore, this
Court will DENY Petitioner leave to proceed in forma
pauperis on appeal. See Fed. R. App. P. 24.
Petitioner having failed to make a substantial showing of the
denial of a constitutional right, a certificate of
appealability SHALL NOT ISSUE. 28 U.S.C. § 2253; Fed. R.
App. P. 22(b).