United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING § 2255 PETITION, DENYING
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN
DANIEL BREEN UNITED STATES DISTRICT JUDGE.
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.
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). (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.
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.
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
(i) be sentenced to a term of imprisonment of not less than 5
(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).
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
Johnson's finding rendered §
924(c)(3)'s residual clause unconstitutionally vague,
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 § ...