United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
H. Lefkow, U.S. District Judge.
Hargrove moves to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255. (Dkt. 1.) On June 22, 2005,
a jury convicted Hargrove of one count of racketeering
conspiracy in violation of 18 U.S.C. 1962(d) (count 1), one
count of conspiracy to possess with intent to distribute and
to distribute cocaine and marijuana in violation of 21 U.S.C.
§ 846 (count 2), one count of conspiracy to commit
robbery and extortion in violation of 18 U.S.C. §§
1951 (Hobbs Act conspiracy) (count 4), and one count of
possessing a firearm in relation to a crime of violence in
violation of 18 U.S.C. §§ 924(c)(1)(A) (count 6).
(Cr. dkt. 129.) Hargrove was sentenced to 156 months'
imprisonment on counts 1, 2, and 4, to run concurrently. He
was also sentenced to a mandatory consecutive 60 months for
the § 924(c)(1)(A) conviction. (Cr. dkt. 143.)
Additionally, Hargrove was sentenced to three years'
supervised release on counts 1, 2, and 4, as well as five
years of supervised release on count 6, running concurrently.
(Cr. dkt. 152.) According to the Bureau of Prisons'
website, https://www.bop.gov/inmateloc, Hargrove is
scheduled to be released from custody on February 24, 2021.
filed his pro se habeas petition on July 1, 2016, seeking
relief from his consecutive sentence under §
924(c)(1)(A) in light of the Supreme Court's decision in
Johnson v. United States, 576 U.S. __, 135 S.Ct.
2551, 192 L.Ed.2d 569 (2015). The government responded in
opposition. Having considered the submissions of the parties,
the court grants the motion to vacate the sentence.
2255 allows a person held in federal custody to petition the
sentencing court for an order vacating, setting aside, or
correcting his sentence. 28 U.S.C. § 2255(a). Relief
under § 2255 is “reserved for extraordinary
situations.” Hays v. United States, 397 F.3d
564, 566 (7th Cir. 2005) (quoting Prewitt v. United
States, 83 F.3d 812, 816 (7th Cir. 1996)). A petitioner
must establish “that the district court sentenced him
in violation of the Constitution or laws of the United States
or that the sentence was in excess of the maximum authorized
by law or is otherwise subject to collateral attack.”
Id. at 566-67 (quoting Prewitt, 83 F.3d at
816). It is proper to deny a § 2255 motion without an
evidentiary hearing if “the motion and the files and
records of the case conclusively demonstrate that the
prisoner is entitled to no relief.” 28 U.S.C §
was sentenced to the mandatory minimum of 60 months'
imprisonment under 18 U.S.C. § 924(c)(1)(A)(i), which
applies to a defendant who uses or carries a firearm during
the commission of any “crime of violence.” A
“crime of violence” is defined as a felony that
either “has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, ” 18 U.S.C. § 924(c)(3)(A)
(force clause), or “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 [felony], ” id. § 924(c)(3)(B)
(residual clause). At trial, the jury was instructed as to
count 6 that
To prove the defendant guilty of the weapons offense charged
in Count Six, the government must prove the following
First, that the defendant committed the crime of conspiracy
to commit robbery, as charged in Count Four; and
Second, that the defendant knowingly possessed in furtherance
of, or carried a firearm during and in relation to that
(Cr. dkt. 127 at 42.) Therefore, Hobbs Act conspiracy was the
underlying crime of violence for Hargrove's conviction on
Johnson, the Supreme Court held unconstitutionally
vague the residual clause in the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). See
Johnson, 135 S.Ct. at 2557. Hargrove argues that his
sentence under § 924(c) cannot be sustained because
Johnson renders the statute's similar residual
clause unconstitutionally vague. In response, the government
argues that Hobbs Act robbery is a crime of violence under
the statute's force clause. This argument is misdirected
because, as the government concedes, the predicate crime of
violence was not Hobbs Act robbery, but rather
conspiracy to commit Hobbs Act robbery.
The Constitutionality of § 924(c)'s Residual Clause
Johnson, the Supreme Court held that ACCA's
residual clause, 18 U.S.C. § 924(e)(2), is
unconstitutionally vague. See Johnson, 135 S.Ct. at
2557. Applying the new constitutional rule announced
in Johnson,  the Seventh Circuit found §
924(c)(3)(B) likewise unconstitutionally vague. See
United States v. Cardena, 842 F.3d 959, 995-96 (7th Cir.
2016). Accordingly, if Hargrove's conviction under §