United States District Court, N.D. Illinois, Eastern Division
Robert D. Jones, Petitioner,
United States of America, Respondent.
MEMORANDUM OPINION & ORDER
HONORABLE THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE
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).
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).
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).
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
(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.
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).
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
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 ...