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Jones v. United States

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

June 15, 2018

Robert D. Jones, Petitioner,
v.
United States of America, Respondent.

          MEMORANDUM OPINION & ORDER

          HONORABLE THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE

         Robert D. Jones filed this pro se petition for relief under 28 U.S.C. § 2255 maintaining that his conviction for brandishing a firearm during a Hobbs Act robbery in violation of 18 U.S.C. § 924(c) is unconstitutional in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Jones argues that, because his conviction is unconstitutional, he is entitled to relief from his conviction and sentence pursuant to § 2255(a). For the following reasons, the Court denies Jones's petition (R. 1).

         Background

         On March 10, 2005, Jones pleaded guilty to two counts of Hobbs Act robbery and one count of Hobbs Act conspiracy in violation of 18 U.S.C. § 1951. In addition, Jones pleaded guilty to one count of brandishing a firearm during a Hobbs Act robbery in violation of 18 U.S.C. § 924(c)(1)(A). The district court sentenced Jones to 219 months of imprisonment, 84 of which were imposed for violating 18 U.S.C. § 924(c)(1)(A). Jones did not appeal. Jones now moves to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 with respect to the count under § 924(c)(1)(A).

         Standard

         Section 2255 allows “a prisoner under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . [to] move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). A criminal defendant is entitled to relief from his conviction and sentence if “the court finds . . . that there has been a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” Id. § 2255(b). Section 2255 relief is reserved for “extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013).

         Analysis

         Section 924(c)(1)(A) imposes criminal liability upon “any person who, during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). A “crime of violence” is defined by 18 U.S.C. § 924(c)(3) as:

[A]n 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.

         Jones argues that, in light of the Supreme Court's decision in Johnson, 135 S.Ct. 2551, his execution of Hobbs Act robbery does not constitute a crime of violence, and that he is therefore entitled to relief from his conviction and sentence under § 924(c)(1)(A).

         In Johnson, the Supreme Court held that 18 U.S.C. § 924(e)(2)(B)(ii), a provision of the Armed Career Criminal Act, is unconstitutionally vague and violates due process. 135 S.Ct. 2551, 2557. That holding applies retroactively to cases on collateral review. Welch v. United States, 136, S.Ct. 1257, 1265 (2016). The Seventh Circuit in United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015), found that the definition of “crime of violence” contained in 18 U.S.C. § 16(b) is unconstitutionally vague based on the Supreme Court's reasoning in Johnson. Id. at 723. The Seventh Circuit subsequently found the language of § 924(c)(3)(B) identical to the language of § 16(b) and invalidated § 924(c)(3)(B) as unconstitutionally vague. United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016).

         Jones asserts that the reasoning adopted in Vivas-Ceja and Cardena applies equally to his conviction under § 924(c)(1)(A) for brandishing a firearm during a Hobbs Act robbery. The problem with Jones's argument is that the Seventh Circuit has ruled (in a decision postdating Jones's petition and the government's response) that Hobbs Act robbery remains a “crime of violence” under § 924(c)(3)(A) post-Johnson. United States v. Anglin, 846 F.3d 954, 965 (7th Cir. 2017), cert. granted, judgment vacated on other ground, 138 S.Ct. 126 (2017) (“Hobbs Act robbery is a ‘crime of violence' within the meaning of § 924(c)(3)(A). In so holding, we join the unbroken consensus of other circuits to have resolved this question.”); Haynes v. United States, 873 F.3d 954, 955 (7th Cir. 2017) (same). “[U]nder the Seventh Circuit's decision in Anglin, Hobbs Act robbery served as a valid predicate for [Jones's] conviction under § 924(c)(1)(A).” United States ...


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