Opinion
Criminal Action No. 1:16-cr-6 Civil Action No. 1:20-cv-486
2020-06-09
UNITED STATES of America v. Joshua SMITH
Rebeca H. Bellows, United States Attorney's Office, Alexandria, VA, for United States of America. Bruce A. Johnson, Jr., Bowie, MD, for Joshua Smith.
Rebeca H. Bellows, United States Attorney's Office, Alexandria, VA, for United States of America.
Bruce A. Johnson, Jr., Bowie, MD, for Joshua Smith.
ORDER
T. S. Ellis, III, United States District Judge
This matter is before the Court on Defendant Joshua Smith's motion for post-conviction relief pursuant to 28 U.S.C. § 2255. Defendant argues that his convictions must be vacated because of the Supreme Court's recent decision in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). The matter has been fully briefed and thus is ripe for disposition. Oral argument is dispensed with as the facts and legal contentions are adequately set forth in the existing record and oral argument would not aid the decisional process. For the reasons that follow, defendant's § 2255 motion must be denied. I.
The factual and procedural history recited here is drawn from the filings submitted in this case.
On March 3, 2016, a federal grand jury returned a Superseding Indictment charging defendant with conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Count 1); four separate counts of Hobbs Act robbery, in violation of 18 U.S.C. §§ 2 and 1951 (Counts 5, 9, 10, 17); and four separate counts of using, carrying, and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c) (Counts 21, 25, 26, 33). See Superseding Indictment (Dkt. 40). The charges against Smith in the Superseding Indictment arose out of Smith's participation in four armed robberies of commercial establishments in the Eastern District of Virginia. Id.
On May 17, 2016, Smith pleaded guilty to Counts 1 and 25 of the Superseding Indictment pursuant to a plea agreement. See Plea Agreement (Dkt. 76). As noted, Count 1 charged Smith with conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and Count 25 charged Smith with using, carrying, and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c). See Superseding Indictment (Dkt. 40), 1-14, 38. Specifically, the underlying crime of violence charged in Count 25 was the November 10, 2015 armed robbery of the Potomac Cleaners located at 5101 Seminary Road, Alexandria, Virginia charged in Count 9. See id. at 38.
As part of the statement of facts in Smith's plea agreement, Smith admitted to conspiring with three other people to commit armed robberies of commercial establishments and to participating in four separate armed robberies, including the November 10, 2015 robbery of the Potomac Cleaners, the crime of violence underlying Count 25. See Statement of Facts (Dkt. 77). Specifically, Smith admitted that at approximately 3:30 p.m. on November 10, 2015, Smith, while wearing a ski mask and brandishing a firearm, entered the Potomac Cleaners with another man and took approximately $200 in cash from the register. Id. at ¶ 3. The Court accepted Smith's guilty plea to Count 1 and to Count 25 of the Superseding Indictment, and thereafter dismissed the remaining counts of the Superseding Indictment against Smith on the government's motion. See United States v. Smith , 16-cr-6, Dkt. 78 (E.D. Va. May 17, 2016) (order granting government's motion to dismiss Counts 5, 9, 10, 17, 21, 26, and 33); Plea Agreement (Dkt. 76), at 7.
According to the Presentence Investigation Report ("PSR"), which was adopted by the Court at sentencing, defendant had a total offense level of 28 and a criminal history category of I. See PSR (Dkt. 119), at 22. Thus, a guidelines range of 78 to 97 months applied to Count 1, and a mandatory-minimum of 84 months to be served consecutively applied to Count 25. See id. On August 4, 2016, the Honorable James C. Cacheris, United States District Judge, sentenced Smith to a term of 96 months of imprisonment on Count 1 and to a term of 84 months of imprisonment on Count 25, to be served consecutively. See Judgment as to Joshua Smith (Dkt. 125). Accordingly, Smith was sentenced to a total term of 180 months of imprisonment. Id. Smith did not file a direct appeal of his conviction or his sentence.
On April 27, 2020, Smith filed a pleading styled as an "Informal Request to file a 2255 Motion." See Motion to Vacate (Dkt. 158). On April 28, 2020, an Order issued requiring the government to respond to defendant's motion. See United States v. Smith , 16-cr-6, Dkt. 159 (E.D. Va. Apr. 28, 2020). On May 28, 2020 the government filed a response opposing defendant's motion. See Response in Opposition (Dkt. 160). On June 8, 2020, defendant filed a reply to the government's opposition. See Reply to Opposition (Dkt. 163). For the reasons that follow, defendant's § 2255 motion must be denied.
II.
The Supreme Court has interpreted § 2255 as stating four grounds on which relief may be claimed: (1) that the sentence was imposed in violation of the Constitution or laws of the United States, (2) that the court was without jurisdiction to impose such sentence, (3) that the sentence was in excess of the maximum authorized by law, and (4) that the sentence is otherwise subject to collateral attack. Hill v. United States , 368 U.S. 424, 426-27, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (quoting 28 U.S.C. § 2255 ). A defendant attacking his conviction bears the burden of establishing at least one ground that justifies relief. See 28 U.S.C. § 2255. And defendant's burden in this respect is a "significantly higher hurdle" than "would exist on direct appeal." United States v. Frady , 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). It is well-settled that "[h]abeas review is an extraordinary remedy and will not be allowed to do service for an appeal." Bousley v. United States , 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Stated plainly, relief under § 2255 is designed to correct for fundamental constitutional, jurisdictional, or other errors, and it is therefore reserved for situations in which failing to grant relief would otherwise "inherently result[ ] in a complete miscarriage of justice." United States v. Addonizio , 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (quoting Hill v. United States , 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ). As discussed below, defendant's asserted ground for relief fails to meet this high hurdle and, therefore, defendant's motion must be denied.
III.
Defendant, citing the Supreme Court's decision in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), argues that his convictions must be vacated because conspiracy to commit Hobbs Act robbery no longer qualifies as a "crime of violence" under § 924(c). See Motion to Vacate (Dkt. 158), at 1. For the reasons that follow, defendant's convictions on Count 1 and Count 25 are not affected by Davis or any other case that has addressed the constitutionality of the residual clause of § 924(c). Accordingly, defendant's § 2255 motion must be denied. Defendant's convictions and sentence remain valid and lawful.
Federal law, as codified at 18 U.S.C. § 924(c)(1)(A), provides that a person who uses or carries a firearm "during and in relation to any crime of violence" or who "possesses a firearm" "in furtherance of any such crime" may be convicted of both the underlying crime and the additional, distinct crime of utilizing a firearm in connection with a "crime of violence." See United States v. Simms , 914 F.3d 229, 233 (4th Cir. 2019) (en banc). Section 924(c)(3) defines "crime of violence" as "an offense that is a felony" and:
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(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). Courts commonly refer to § 924(c)(3)(A) as the "force clause" and to Section 924(c)(3)(B) as the "residual clause." Simms , 914 F.3d at 233. In Davis , the Supreme Court case that defendant relies on in his § 2255 motion, the Supreme Court held that the "crime of violence" definition set forth in § 924(c)'s residual clause, 18 U.S.C. § 924(c)(3)(B), was unconstitutionally vague and vacated the defendants' conviction in that case for violating Section 924(c)(3)(B). See 139 S. Ct. at 2336.
The Fourth Circuit held that § 924(c)'s residual clause was unconstitutionally vague prior to the Supreme Court's decision in Davis. See United States v. Simms , 914 F.3d 229, 233-236 (4th Cir. 2019) (en banc) (holding that Section 924(c)(3)(B) is unconstitutionally vague).
As noted, defendant has been convicted of and sentenced for two federal crimes, namely Count 1 and Count 25 of the Superseding Indictment. With respect to Count 1, defendant was convicted of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a). In this respect, neither Davis , nor any other case cited by defendant or the government, calls into question the constitutionality of § 1951(a). To be clear, Davis does not affect the validity of Section 1951(a). The Supreme Court in Davis vacated those defendants' § 924(c)(3)(B) conviction; significantly, the Supreme Court did not disturb those defendants' conviction for conspiracy to commit Hobbs Act robbery in violation of § 1951(a). See id. at 2336. Simply put, § 924(c)(3)(B) and § 1951(a) are two entirely different federal criminal statutes, and conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), remains a valid federal crime. Indeed, case law is uniform in support of the validity of § 1951(a).
Section 1951(a) provides that: "Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both." 18 U.S.C. § 1951(a).
Moreover, on remand from the Supreme Court, the Fifth Circuit explicitly affirmed all the defendants' convictions in Davis other than the § 924(c)(3)(B) conviction. See United States v. Davis , 784 F. App'x 277, 278 (5th Cir. 2019) ("To summarize, we continue to affirm all convictions save Count Two [ (§ 924(c)(3)(B) ) ] which we vacate."). In addition to the § 924(c)(3)(B) conviction, the defendants in Davis were convicted of multiple counts of robbery affecting interstate commerce, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and one § 924(c) count based on Hobbs Act robbery pursuant to § 924(c)'s force clause. See United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2324, 204 L.Ed.2d 757 (2019).
Here, defendant pled guilty to conspiracy to commit Hobbs Act robbery, in violation of Section 1951(a), and defendant was sentenced to a guidelines range sentence of 96 months' imprisonment for that offense. Accordingly, neither Davis nor any other case provides any basis to vacate defendant's conviction on Count 1, and therefore defendant's motion to vacate his sentence with respect to the crime of conspiracy to commit Hobbs Act robbery in Count 1 must be denied.
With respect to Count 25, defendant was convicted of using, carrying, and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c). It is therefore necessary to determine whether defendant's § 924(c) conviction falls within § 924(c)'s residual clause, which has been deemed unconstitutional, or § 924(c)'s force clause, which remains a valid federal crime. Because defendant's conviction on Count 25 falls within § 924(c)'s force clause, there is no basis to vacate defendant's conviction on Count 25, and defendant's motion to vacate his sentence with respect to Count 25 must be denied.
To begin with, the Fourth Circuit, in a decision published after the Supreme Court's decision in Davis , has made clear that Hobbs Act robbery is a force clause crime under Section 924(c)(3)(A). See United States v. Mathis , 932 F.3d 242, 266 (4th Cir. 2019). Every other circuit court that has addressed the issue has also sensibly concluded that Hobbs Act robbery is a § 924(c) force clause crime. Notably, in Davis , the defendants were convicted of two § 924(c) counts, one in which the underlying crime was Hobbs Act robbery and one in which the underlying crime was conspiracy to commit Hobbs Act robbery. See United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2325, 204 L.Ed.2d 757 (2019). In holding § 924(c)'s residual clause unconstitutionally vague, the Supreme Court upheld the Fifth Circuit's decision to vacate the defendants' § 924(c) conviction based on conspiracy to commit Hobbs Act robbery because that conviction was based on § 924(c)'s residual clause. Id. at 2336. Importantly, neither the Fifth Circuit nor the Supreme Court vacated the Davis defendants' other § 924(c) conviction, which was based on Hobbs Act robbery, because that conviction was based on Section 924(c)'s force clause. United States v. Davis , 784 F. App'x 277, 278 n.2 (5th Cir. 2019). Thus, it is abundantly clear that § 924(c) convictions based on Hobbs Act robbery remain lawful convictions because Hobbs Act robbery is a crime of violence pursuant to § 924(c)'s force clause, § 924(c)(3)(A).
See United States v. Garcia-Ortiz , 904 F.3d 102, 106–09 (1st Cir. 2018) ; United States v. Hill , 890 F.3d 51, 60 (2d Cir. 2018) ; United States v. Robinson , 844 F.3d 137, 144 (3d Cir. 2016) ; United States v. Buck , 847 F.3d 267, 274–75 (5th Cir. 2017) ; United States v. Gooch , 850 F.3d 285, 290–92 (6th Cir. 2017) ; United States v. Rivera , 847 F.3d 847, 848–49 (7th Cir. 2017) ; Diaz v. United States , 863 F.3d 781, 783–84 (8th Cir. 2017) ; United States v. Melgar-Cabrera , 892 F.3d 1053, 1060–66 (10th Cir.), cert. denied , ––– U.S. ––––, 139 S. Ct. 494, 202 L.Ed.2d 386 (2018) ; United States v. St. Hubert , 883 F.3d 1319, 1328–29 (11th Cir. 2018) ; see also United States v. Howard , 650 F. App'x 466, 468 (9th Cir. 2016).
Here, defendant is mistaken in his belief that his § 924(c) conviction in Count 25 is based on his conviction for conspiracy to commit Hobbs Act robbery in Count 1. To the contrary, the crime of violence underlying defendant's § 924(c) conviction in Count 25 is the substantive Hobbs Act robbery charged in Count 9 of the Superseding Indictment, not the conspiracy to commit Hobbs Act robbery charged in Count 1. The Superseding Indictment makes that abundantly clear—namely, Count 25 of the Superseding Indictment states that the underlying crime of violence in Count 25 is "the November 10, 2015 interference with commerce by robbery of the Potomac Cleaners located at 5101 Seminary Road, Alexandria, Virginia, as set forth and charged in Count Nine of this Indictment." See United States v. Smith , 16-cr-6, Dkt. 40, at 38 (E.D. Va. Mar. 3, 2016). Thus, the crime of violence underlying defendant's § 924(c) conviction in Count 25 is not the conspiracy to commit Hobbs Act robbery charged in Count 1; it is the substantive Hobbs Act robbery charged in Count 9.
Accordingly, there is no basis to vacate defendant's conviction on Count 25. Defendant's conviction on Count 25 is based on the Hobbs Act robbery that defendant admitted committing, and his statement of facts makes clear that defendant brandished a firearm in the commission of that robbery. See Statement of Facts (Dkt. 77), at ¶ 3. Hobbs Act robbery is a crime of violence pursuant to the statutory definition in § 924(c)'s force clause, § 924(c)(3)(A), and § 924(c) convictions based on § 924(c)'s force clause remain valid criminal convictions even after the Supreme Court's decision in Davis. See United States v. Mathis , 932 F.3d 242, 266 (4th Cir. 2019) (holding that Hobbs Act robbery constitutes a crime of violence under the force clause of Section 924(c) ). Thus, defendant's motion to vacate his sentence with respect to the crime of using, carrying, and brandishing a firearm during and in relation to a crime of violence in Count 25 must be denied.
Importantly, the validity of defendant's § 924(c) conviction is not impacted by the fact that Count 9 of the Superseding Indictment, the Hobbs Act robbery that serves as the predicate offense to defendant's § 924(c) conviction, was dismissed on the government's motion. See United States v. Carter , 300 F.3d 415, 425 (4th Cir. 2002) (holding that § 924(c) convictions do not require a conviction of the underlying predicate offense); United States v. Nelson , 27 F.3d 199, 200-01 (6th Cir. 1994) ("[W]hile it is necessary for the government to present proof of the underlying crime to convict under § 924(c), a defendant need not be convicted or even charged with the underlying crime to be convicted under § 924(c)."). In the statement of facts in defendant's plea agreement, defendant admitted that he committed Hobbs Act robbery while brandishing a firearm on November 10, 2015. Accordingly, his conviction and sentence remain valid and appropriate.
For the reasons set forth above, defendant's motion to vacate his sentence and conviction pursuant to 28 U.S.C. § 2255 must be denied.
* * *
Accordingly,
It is hereby ORDERED that defendant's motion to vacate his sentence and conviction pursuant to 28 U.S.C. § 2255 (Dkt. 158) is DENIED and his petition is DISMISSED.
To appeal this decision, defendant must file a written notice of appeal with the Clerk of the Court within sixty (60) days of the date of the entry of this Order. Failure to file a timely notice of appeal waives defendant's right to appeal this decision. Defendant must also obtain a certificate of appealability from a judge or justice of this circuit pursuant to 28 U.S.C. § 2253(c)(1). This Court expressly declines to issue a certificate of appealability for the reasons stated above.