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Brown v. United States

United States District Court, W.D. Tennessee, Eastern Division

May 2, 2019

RASHUN BROWN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING § 2255 PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          J. DANIEL BREEN UNITED STATES DISTRICT JUDGE.

         On June 15, 2016, Petitioner, Rashun Brown, filed a pro se motion to vacate, set aside, or correct his sentence (the “Petition”), pursuant to 28 U.S.C. § 2255. (Docket Entry (“D.E.”) 1.) For the reasons that follow, the Petition is DENIED.[1]

         BACKGROUND

         In April 2013, a federal grand jury returned an indictment charging Brown with two counts of aiding and abetting the robbery of a business engaged in interstate commerce, in violation of 18 U.S.C. §§ 2 and 1951 (“Hobbs Act robbery”), and two counts of aiding and abetting the knowing use, carrying, and brandishing of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c).[2] (United States v. Brown, No. 1:13-cr-10033-JDB-2, D.E. 2.) The Defendant subsequently pleaded guilty to the two robbery counts and one of the firearm counts. (Id., D.E. 52.) The Court sentenced him to an effective sentence of 130 months' incarceration and 3 years of supervised release. (Id., D.E. 71.) He did not take a direct appeal.

         DISCUSSION

         A prisoner seeking to vacate his sentence under § 2255 “must allege either: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted). Petitioner here argues that his conviction under § 924(c) should be set aside based on the ruling in Johnson v. United States, 135 S.Ct. 2551 (2015), that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), was unconstitutionally void for vagueness. See Johnson, 135 S.Ct. at 2557. The Court finds that Johnson has no relevance to Brown's § 924(c) firearm conviction.

         The firearm statute provides in pertinent part that,

[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) 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, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime-
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A)(i)-(iii) (emphasis added).

         Section 924(c)(3) sets forth a “two-part definition” of crime of violence, “only one part of which need apply.” United States v. Robinson, 708 Fed.Appx. 272, 273 (6th Cir. 2017). “First, a crime of violence is a felony that ‘has as an element the use, attempted use, or threatened use of physical force against the person or property of another.'” Id. (quoting 18 U.S.C. § 924(c)(3)(A)). This is known as the “use-of-force clause.” United States v. Camp, 903 F.3d 594, 597 (6th Cir. 2018). “Second, a crime of violence is a felony ‘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.'” Robinson, 708 Fed.Appx. at 273 (quoting 18 U.S.C. § 924(c)(3)(B)). This language is referred to as the statute's “residual clause.” Camp, 903 F.3d at 597 n.2.

         Even if Johnson's finding rendered § 924(c)(3)'s residual clause unconstitutionally vague, [3]Petitioner is not entitled to relief because aiding and abetting Hobbs Act robbery is a crime of violence under the statute's use-of-force clause. In 2017, the Sixth Circuit held that the principle offense of Hobbs Act robbery is a crime of violence under that clause. United States v. Gooch, 850 F.3d 285, 292 (6th Cir. 2017). And in 2018, it extended Gooch to aiding and abetting Hobbs Act robbery. See United States v. Richardson, 906 F.3d 417, 426 (6th Cir. 2018) (declining to address the constitutionality of ยง ...


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