United States District Court, N.D. Illinois, Eastern Division
E. Bucklo, United States District Judge
1996, Wayne Gall (“Gall”) was charged with
several federal crimes, including multiple counts of robbery
under the Hobbs Act, 18 U.S.C. § 1951, in connection
with two robberies of tractor-trailers carrying shipments in
interstate commerce. See United States v. Gall, 116
F.3d 228, 229 (7th Cir. 1997). Based on his use of a firearm
in connection with the crimes, he was also charged with
carrying a firearm in the commission of a crime of violence
in violation of 18 U.S.C. § 924(c)(3). Gall pleaded
guilty and was sentenced by Judge Suzanne Conlon to 235
months' imprisonment for the robberies and other
offenses, and an additional 60 months' imprisonment to
run consecutively for the § 924(c) violation. He now
moves pursuant to 28 U.S.C. § 2255 to vacate his
sentence for the § 924(c)(3) violation. The motion is
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)(A)-(B). Prong (A) of the
definition is commonly referred to as the provision's
“elements” clause (or “force” clause)
and prong (B) is referred to as the “residual”
argues that § 924(c)(3)'s residual clause is
unconstitutionally vague in light of the Supreme Court's
recent decision Johnson v. United States, 135 S.Ct.
2551 (2015). There, the Court held that the similarly-worded
residual clause of the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(2)(B), was void for vagueness.
Johnson, 135 S.Ct. at 2257. Gall is correct: shortly
after the parties completed briefing on the instant motion,
the Seventh Circuit held that Johnson rendered
§ 924(c)(3)'s residual provision unconstitutional.
See United States v. Cardena, No. 12-3680, 2016 WL
6819696, at *25 (7th Cir. Nov. 18, 2016).
not entitled to relief, however, because his § 924(c)(3)
conviction can be sustained under the elements clause. Gall
disputes this, but his argument fails for two reasons. First,
the argument is untimely. Section 2255 has a one-year statute
of limitations. See 28 U.S.C. § 2255(f). The
instant motion comes nearly twenty years after Gall pleaded
guilty to the offense. Gall notes that Johnson has
been held to apply retroactively in cases under collateral
review. See Welch v. United States, 136 S.Ct. 1257,
1265 (2016). But since Johnson applies only to
§ 924(c)'s residual clause, it does not excuse
Gall's failure to raise his argument as to the elements
clause. See, e.g., Stanley v. United
States, 827 F.3d 562, 565 (7th Cir. 2016)
(“Johnson does not have anything to do with
the elements clause . . ., and § 2255(f)(3) therefore
does not afford prisoners a new one-year period to seek
collateral relief on a theory that the elements clause does
not apply to a particular conviction.”). Gall also
appears to invoke the “actual innocence”
exception to § 2255's statute of limitations,
asserting that in light of Johnson he is now
actually innocent of the § 924(c)(3) offense. Again,
however, Johnson at most shows his innocence only
with respect to the residual clause, not the elements clause.
argument that his § 924(c)(3) conviction cannot be
sustained under the elements clause also fails on the merits.
Gall contends that the predicate offense for his §
924(c)(3) conviction -- Hobbs Act robbery -- does not qualify
as a “crime of violence” within the meaning of
the provision. He correctly notes that courts use the
so-called “categorical approach” in determining
whether a predicate offense qualifies as a “crime of
violence” under § 924(c)(3). See, e.g.,
United States v. Cardena, No. 12-3680, 2016 WL
6819696, at *25 (7th Cir. Nov. 18, 2016). This approach
requires courts to look “only to the statutory elements
of the offense and not to the particular facts underlying the
offense.” United States v. Coleman, No.
14-CR-664, 2016 WL 1435696, at *2 (N.D. Ill. Apr. 12, 2016)
(citing Descamps v. United States, 133 S.Ct. 2276,
2283 (2013)). Further, under the categorical approach, a
“crime may only serve as a predicate offense for the
[elements] clause if the conduct that it encompasses does not
exceed the conceivable scope of the [elements] clause.”
to Gall, the conduct encompassed by Hobbs Act robbery exceeds
the scope of the elements clause. He points out that while
the elements clause requires the use or threatened use of
physical force, the Hobbs Act defines robbery as “the
unlawful taking or obtaining of personal property from the
person ... by means of actual or threatened force, or
violence, or fear of injury ... to his person or
property.” 18 U.S.C. § 1951(b)(1) (emphasis
added). Gall argues that Hobbs Act robbery may be
accomplished by creating the mere “fear of
injury” and thus, unlike the elements clause, need not
involve the use or threat of physical force.
argument has been presented to numerous courts and has been
consistently rejected. See, e.g., United States
v. Hill, 832 F.3d 135, 137 (2d Cir. 2016) (“We ...
hold that Hobbs Act robbery is a crime of violence under 18
U.S.C. § 924(c)(3).”); In re Fleur, 824
F.3d 1337, 1341 (11th Cir. 2016); United States v.
Howard, 650 F. App'x 466, 468 (9th Cir. 2016);
United States v. Bennett, No. 3:15CR134, 2016 WL
354753, at *4 & n. 6 (E.D. Va. Jan. 27, 2016) (collecting
cases). As the court observed in Coleman, “the
numerous recent cases applying section 924 to Hobbs Act
robbery have unanimously held that Hobbs Act robbery is a
crime of violence under the [elements] clause because
‘fear of injury, ' as that phrase is used in the
statute, may only be created through the use or threatened
use of physical force.” Coleman, 2016 WL
1435696, at *2. I agree.
short, while Johnson rendered § 924(c)(3)'s
residual provision unconstitutional, Gall's conviction
remains valid under the provision's elements clause.
Gall's challenge on the latter point is both ...