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McQuiddy v. United States

United States District Court, M.D. Tennessee, Nashville Division

October 3, 2019

PAUL McQUIDDY, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE

         Before the court is the Motion to Vacate, Set Aside, or Correct Sentence in Accordance with 28 U.S.C. § 2255 (Doc. No. 1) filed by movant Paul McQuiddy, seeking to vacate and reduce the sentence entered upon McQuiddy's 2013 criminal conviction in United States v. Conyers et al., No. 3:09-cr-00240 (M.D. Tenn. Feb. 15, 2013) (Judgment, Doc. No. 1950), [1]based on Johnson v. United States, 135 S.Ct. 2551 (2015). The motion to vacate will be granted in light of the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019).

         I. PROCEDURAL BACKGROUND

         On February 4, 2013, the court (Nixon, S.J.) accepted McQuiddy's plea of guilty to seven charges against him in the multi-count Ninth Superseding Indictment against numerous co-defendants. (Crim. Doc. No. 1908.) These charges consisted of (1) five separate charges of conspiracy to interfere with commerce by robbery and extortion and to commit and threaten physical violence against another person and his property, in violation of 18 U.S.C. §§ 1951 and 2 (“Hobbs Act conspiracy”) (Counts 13, 16, 18, 30 and 41); (2) using and attempting to use physical force against an individual in retaliation for providing information to a law enforcement officer relating to the commission or possible commission of a federal offense, in violation of 18 U.S.C. § 1513(b)(2) (Count 34); and (3) possessing and discharging a firearm during and in relation to a crime of violence (specifically, “conspiracy to commit a Hobbs Act extortion and robbery”), in violation of 18 U.S.C. §§ 924(c) and 2 (Count 31). According to the Petition to Enter a Plea of Guilty (Crim. Doc. No. 1908) and as announced in open court at the plea hearing on February 4, 2013, McQuiddy and the government reached an agreement under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure for a total prison sentence of 18 years: 8 years concurrently on Counts 13, 16, 18, 30, 41, and 34, and the statutory minimum of 10 years on Count 31, to run consecutively to the 8 years on the other charges. (See Doc. No. 5-1 (Plea Hr'g Tr.), Crim. Doc. No. 1908 (Plea Petition).) This term was to be followed by 5 years of supervised release.

         As indicated in the plea petition and plea hearing transcript, McQuiddy was aware that Count 31 required a mandatory minimum consecutive sentence of 10 years, because a firearm was discharged during the underlying “crime of violence.” 18 U.S.C. § 924(c)(1)(A)(iii).[2] The written plea petition itself does not contain a waiver of appellate rights or of the right to bring a post-conviction challenge. At the plea hearing, conducted before Senior Judge John T. Nixon (now retired), the Assistant United States Attorney represented to the court that McQuiddy, along with the three other co-defendants who entered pleas the same day, had agreed to waive their appellate rights. The prosecutor stated on the record that the plea agreement with each defendant included a waiver of appellate rights and postconviction rights applicable under the plea agreement as to each of the four defendants. . . .

Regarding sentencing, each defendant is aware that 18 U.S.C. 3742 generally affords the defendant the right to appeal the sentence imposed. Acknowledging this, each defendant knowingly waives the right to appeal the sentence agreed to in that defendant's particular plea agreement pursuant to Federal Rule of Civil Procedure 11(c)(1)(C). Each defendant also knowingly waived their right to challenge that agreed sentence in any collateral attack, including, but not limited to, a motion brought pursuant to 28 U.S.C. 2255 and/or 2241 and/or 18 U.S.C. 3582(c).

(Plea Hr'g Tr., Doc. No. 5-1, at 55-56.) In Judge Nixon's colloquy with each defendant, however, the defendants confirmed their understanding that they were waiving their right to go to trial, but they were not asked to confirm their understanding that they were waiving their right to bring a collateral challenge to their sentence. (See Id. at 60.)

         In addition, while two of the other defendants' plea petitions included language acknowledging the waiver of the right to appeal or to bring a post-conviction collateral challenge (see Crim. Doc. No. 1910, at 4; Crim. Doc. No. 1909, at 4), the handwritten “Summary of Plea Agreement” appended to McQuiddy's plea petition contains no reference to waiver. (See Crim. Doc. No. 1908, at 6.)

         McQuiddy was sentenced on February 4, 2013 to 18 years in accordance with the agreement documented in the plea petition. (Minute Entry, Crim. Doc. No. 1903.) Judgment was entered on February 15. 2013. (Crim. Doc. No. 1950.) McQuiddy did not appeal his conviction or sentence.

         On June 27, 2016, McQuiddy filed a pro se motion to appoint counsel in the criminal case, asserting that he was entitled to relief under United States v. Johnson, 135 S.Ct. 2551 (2015), and arguing specifically that conspiracy to commit Hobbs Act robbery does not qualify as a crime of violence for purposes of 18 U.S.C. § 924(c)(3).[3] The court appointed counsel and directed the filing of a supplemental brief. Counsel filed his supplemental brief as a Motion to Vacate, initiating this civil action, rather than making a filing in the criminal case, on October 31, 2016. The Motion expressly incorporates the arguments raised in McQuiddy's pro se filing, arguing in particular that the Hobbs Act conspiracy convictions could only qualify as crimes of violence under the “residual clause” of § 924(c)(3)(B), which is unconstitutional in light of Johnson. (Doc. No. 1.) McQuiddy requested that his motion be held in abeyance pending the Supreme Court's review of United States v. Taylor, 814 F.3d 340 (6th Cir. 2016).

         The government filed a Response, arguing that (1) McQuiddy waived his right to bring a § 2255 motion; (2) his argument that the so-called residual clause in § 924(c)(3) falls within the scope of Johnson is foreclosed by binding Sixth Circuit precedent; (3) conspiracy to commit Hobbs Act robbery satisfies the elements clause of § 924(c)(3)(A); and (4) any reduction in sentence would violate the terms of the binding plea agreement under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure and, without the agreement, McQuiddy would have been subject to a “much more onerous” punishment than 18 years, with multiple additional charges under § 924(c). (Doc. No. 5, at 2.) In his Reply, the petitioner argues that any purported waiver was not knowing and that Supreme Court precedent requires a categorical approach to the determination of whether the elements of a criminal offense make it a crime of violence for purposes of § 924(c)(3). (Doc. No. 8.)

         II. LEGAL FRAMEWORK

         A. 28 U.S.C. § 2255

         The movant brings this action under 28 U.S.C. § 2255. Section 2255 provides that a prisoner serving a sentence for violation of a federal criminal law who claims that his sentence was imposed in violation of the Constitution “may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). In order to obtain relief under § 2255, a petitioner “‘must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the ...


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