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Hargrove v. United States

United States District Court, N.D. Illinois, Eastern Division

September 19, 2017

LARRY HARGROVE, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 01 CR 101-4

          OPINION AND ORDER

          Joan H. Lefkow, U.S. District Judge.

         Larry Hargrove moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (Dkt. 1.)[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.

         Hargrove 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.

         LEGAL STANDARD

         Section 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 § 2255(b).[2]

         ANALYSIS

         Hargrove 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 propositions:
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 crime.

(Cr. dkt. 127 at 42.) Therefore, Hobbs Act conspiracy was the underlying crime of violence for Hargrove's conviction on count 6.

         In 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.

         I. The Constitutionality of § 924(c)'s Residual Clause Post-Johnson

         In 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, [3] 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 ยง 924(c) ...


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