United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER UNITED STATES DISTRICT JUDGE
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), 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).
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
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). 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.)
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.)
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.
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). 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).
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.)
28 U.S.C. § 2255
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