Opinion
Case No. 11-20020-01-JWL Case No. 16-cv-2460-JWL
03-25-2020
United States of America, Plaintiff, v. Abasi S. Baker, Defendant.
MEMORANDUM & ORDER
Petitioner Abasi Baker was convicted of using or carrying a firearm during and in relation to a crime of violence or possessing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c). Recently, he received authorization from the Tenth Circuit to file a successive § 2255 petition alleging that his underlying conviction for Hobbs Act robbery qualifies as a "crime of violence" only as that phrase is defined in § 924(c)(3)'s residual clause—a clause that the Supreme Court invalidated as unconstitutionally vague in United States v. Davis, 139 S. Ct. 2319, 2336 (2019). The motion is denied.
In Davis, the Supreme Court held that the residual clause of § 924(c)(3)(B) is unconstitutionally vague, but the residual clause was implicated in that case because the defendant had been charged with conspiracy to commit Hobbs Act robbery. Id. at 2324. Here, defendant was charged with Hobbs Act robbery—not conspiracy to commit Hobbs Act robbery. The Tenth Circuit has squarely held that Hobbs Act robbery is categorically a crime of violence under the elements clause of § 924(c)(3)(A) because that clause requires the use of force and the force element in Hobbs Act robbery "can only be satisfied by violent force." See United States v. Melgar-Cabrera, 892 F.3d 1053, 1064-65 (10th Cir. 2018). The Supreme Court reaffirmed the reasoning of Melgar-Cabrera in Stokeling v. United States, 139 S. Ct. 544 (2019); see also United States v. Harris, 761 Fed. Appx. 852 (10th Cir. 2019) (order denying certificate of appealability: "Stokeling did not overrule or call into doubt Melgar-Cabrera; rather, it supports it.").
Mr. Baker argues that Hobbs Act robbery is not a crime of violence because it can be accomplished by damaging property. In support of his argument, Mr. Baker relies on the Tenth Circuit's decision in United States v. Bowen, 936 F.3d 1091 (10th Cir. 2019). Bowen, however, involved the relationship between 18 U.S.C. § 924(c)(3) and witness retaliation—not Hobbs Act robbery. Id. at 1105. Regardless, Melgar-Cabrera is binding precedent on this court, and, therefore, Mr. Baker has not identified a viable constitutional challenge of his sentence. Simply put, the Supreme Court's invalidation of § 924(c)(3)'s residual clause does not change Hobbs Act robbery's status as a crime of violence under Tenth Circuit precedent.
IT IS THEREFORE ORDERED BY THE COURT THAT Mr. Baker's motion to vacate under 28 U.S.C. § 2255 (doc. 233) is denied.
IT IS SO ORDERED.
Dated this 25th day of March, 2020, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge