United States District Court, E.D. Tennessee
A. VARLAN UNITED STATES DISTRICT JUDGE
Augustus Young has filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255 [Doc.
At the Court's direction, the government filed a response
[Doc. 5], and Young filed a reply [Doc. 6]. Because
Young's § 2255 motion is squarely foreclosed by
binding Sixth Circuit precedent, the Court finds that it is
unnecessary to hold an evidentiary hearing,  and the motion
will be denied.
pleaded guilty to aiding and abetting Hobbs Act robbery, in
violation of 18 U.S.C. §§ 2 and 1951, and aiding
and abetting the use, carrying, and brandishing of a firearm
during and in relation to a crime of violence, in violation
of 18 U.S.C. § 924(c)(1) [Doc. 56, No. 3:16-cr-145].
Young was classified as a career offender with an accordant
guideline range of 262 to 327 months' imprisonment [Doc.
66, No. 3:16-cr-145]. He was sentenced, below that range, to
204 months' imprisonment: 120 months for the robbery,
followed by the 84-month mandatory minimum for the §
924(c) offense [Doc. 98, No. 3:16-cr-145]. Young waived his
right to appeal and thus did not [Doc. 56, No. 3:16-cr-145],
but he now brings this § 2255 motion disputing his
§ 924(c) conviction and sentence in light of
Sessions v. Dimaya, 138 S.Ct. 1204 (2018), which
held unconstitutional the so-called residual clause of 18
U.S.C. § 16(b).
924(c) contains a similar residual clause. That statute makes
it a federal crime to use or carry a firearm during and in
relation to a crime of violence, which is defined as a
federal felony offense that:
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(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). Dimaya could only impact
(B), the residual clause; clause (A), the use-of-force
clause, is not going anywhere.
regardless of whether the similarly worded residual clause of
§ 924(c) is also unconstitutional-a question currently
before the Supreme Court in United States v. Davis,
139 S.Ct. 782 (2019) (granting certiorari)-Young's
conviction must still stand because Hobbs Act robbery also
qualifies as a “crime of violence” under the
use-of-force clause. The Sixth Circuit has held exactly that:
A conviction under § 1951(b)(1) [i.e., Hobbs Act
robbery] requires a finding of “actual or threatened
force, or violence, or fear of injury, immediate or
future.” Section 1951(b)(1) clearly “has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another” as
necessary to constitute a crime of violence under §
United States v. Gooch, 850 F.3d 285, 291-92 (6th
Cir. 2017). In light of this precedent, Young pleaded guilty
to a crime of violence regardless of what happens to the
residual clause of § 924(c).
disagrees. He maintains that Hobbs Act robbery requires only
“common-law force, ” which can apparently be
applied by even the slightest touch [Doc. 6], and thus does
not count as a crime of violence. But
Gooch-especially when read alongside United
States v. Rafidi, 829 F.3d 437, 445 (6th Cir. 2016),
which held that § 924(c)(3)(A) requires at least the
threatened use of “force capable of causing physical
pain or injury, ” a laJohnson v. United
States, 559 U.S. 133, 140 (2010)-says essentially the
opposite. And this Court has no choice but to follow these
binding appellate precedents.
of these reasons, Young is not entitled to relief under 28
U.S.C. § 2255, and his motion to vacate, set aside or
correct sentence [Doc. 1] will be DENIED,
and this action will be DISMISSED. The Court
will CERTIFY that 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. Moreover, because
Camacho has not made a substantial showing of the denial of a
constitutional right and jurists of reason would not dispute
the above conclusions, Slack v. McDaniel, 529 U.S.
473, 484 (2000), a certificate of appealability SHALL
NOT ISSUE. 28 U.S.C. § 2253; Fed. R. App. P.
22(b). A judgment will enter DENYING the
Motion [Doc. 1].