United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN UNITED STATES DISTRICT JUDGE
the Court are two motions filed pursuant to 28 U.S.C. §
2255 to Set Aside, Correct, or Vacate defendants'
sentences. In the interest of judicial efficiency, in light
of the identical legal issue before the Court with these
motions, the Court will address both matters in a single
opinion. For the reasons stated below, this Court grants the
motions and vacates the mandatory five-year sentences imposed
under 18 U.S.C. § 924(c)(1)(A).
Anthony Adams and Myreon Flowers each were charged by
superseding information with conspiracy to commit robbery in
violation of 18 U.S.C. § 1951(a) (Count One), and
knowing possession of a firearm in furtherance of a crime of
violence (Count Two), namely conspiracy to commit robbery as
charged in Count One of the superseding information, in
violation of 18 U.S.C. § 924(c)(1)(A) in relation to
their participation in plans to rob a fictitious stash house.
Both Adams and Flowers pled guilty to the charges in the
and Flowers each admitted as part of the plea that he agreed
with his co-defendants “to rob a purported stash house
of at least 50 kilograms of cocaine, and to use firearms in
furtherance of the robbery.” Each defendant further
admitted that on November 1, 2011, he and certain of
co-defendants transported a toolbox containing three firearms
to a meeting location in preparation for the robbery. The
Court sentenced Adams to 27 months imprisonment on Count One
and 60 months imprisonment on Count Two to run consecutively.
Judgment was entered on July 15, 2014, on Adams'
conviction. This Court sentenced Flowers to 44 months
imprisonment on Count One and 60 months imprisonment on Count
Two to run consecutively. Judgment was entered on September
11, 2014, on Flowers' conviction.
21, 2016, both Adams and Flowers filed the motions now before
the Court to vacate their convictions, arguing that Hobbs Act
robbery conspiracy (Count One) is no longer a valid predicate
for a violation of 18 U.S.C. 924(c) (Count Two) after
Johnson v. United States, 135 S.Ct. 2251 (2015).
motion pursuant to section 2255 allows a person convicted in
federal court to petition the sentencing court for an order
vacating, setting aside, or correcting his sentence. 28
U.S.C. § 2255(a). The Court grants relief under section
2255 only in “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)). The burden is on the petitioner to
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
Adams and Flowers were 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.” The statute defines a “crime of
violence” 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 or elements 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). Adams and
Flowers each argue that the 60 month consecutive sentence for
violation of section 924(c) cannot be sustained after
Johnson (2015), the Supreme Court found
unconstitutionally vague the residual clause in the Armed
Career Criminal Act (“ACCA”), 18 U.S.C.
§924(e)(2)(B)(ii). Welch v. United States, 136
S.Ct. 1257 (2016), then gave that decision retroactive
application on collateral review as a new constitutional
rule. The Seventh Circuit Court of Appeals, applying
Johnson, found the residual clause in section
924(c)(3)(B) likewise unconstitutionally vague. United
States v. Cardena, 842 F.3d 959, 995-96 (7th Cir. 2016).
More recently, in Sessions v. Dimaya, 138 S.Ct. 1204
(2018), the Supreme Court held that the residual clause in 18
U.S.C. § 16(b), which is identical to the residual
clause at issue here, is unconstitutionally vague. Thus, the
sentences of Adams and Flowers cannot be sustained by the
the unconstitutionality of the residual clause, Adams'
and Flowers' sentences in Count Two for conspiracy to
commit Hobbs Act robbery must be grounded in the
“force/elements clause” of 924(c)(3)(A).
Defendants argue that the elements of Hobbs Act conspiracy do
not satisfy the elements clause's requirement of the
“use, attempted use, or threatened use of physical
force, ” and thus does not qualify as a crime of
violence under the force/elements clause. To prove Hobbs Act
conspiracy, the government must establish “that two or
more persons agreed to commit an unlawful act, and that the
defendant knowingly and intentionally joined in the
agreement.” United States v. Haynes, 582 F.3d
686, 698 (7th Cir. 2009), abrogated on other grounds,
United States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012).
Courts use the categorical approach to determine whether an
offense qualifies as a predicate, looking only to the
statutory elements of the offense and not the underlying
facts of the particular case. See Descamps v. United
States, 133 S.Ct. 2276, 2283 (2013); see also United
States v. Coleman, No. 14 CR 664, 2016 WL 1435696, at *2
(N.D. Ill. Apr. 12, 2016).
government argues that Hobbs Act robbery conspiracy falls
within the ambit of the force clause because it includes an
agreement that “‘portends' the use of force,
because the existence of the conspiracy makes the occurrence
of the conspiracy's object far more likely.” (Dkt.
16 at 9). The government has not presented any authority
recognizing the offense of Hobbs Act conspiracy as
constituting a crime of violence under the force clause. The
government cites several cases from other jurisdictions that
hold Hobbs Act conspiracy to be a crime of violence under
section 924(c)'s residual clause prior to its
invalidation. (See Dkt. 16 at 9).
weight of post-Johnson authority has found that
conspiracy to commit a Hobbs Act robbery is not a crime of
violence under section 924(c)'s force clause. See,
e.g., United States v. Pullia, No. 16 C 6450, 2017 WL
5171218, at *4 (N.D. Ill. Nov. 8, 2017) (Leinenweber, J.);
Hargrove v. United States, No. 16 C 7086, 2017 WL
4150718, at *3 (N.D. Ill. Sept. 19, 2017) (Lefkow, J.)
(“Because neither of the elements of Hobbs Act
conspiracy requires the conspirator to use, attempt, or
threaten the use of physical force, Hobbs Act conspiracy does
not categorically qualify as a crime of violence under §
924(c)'s force clause.”); United States v.
Hernandez,228 F.Supp.3d 128, 138-39 (D. Me. 2017)
(“I conclude that conspiracy to commit Hobbs act
robbery is categorically not a crime of violence under the
force clause of § 924(c)(3)(A).”); Deering v.
United States, No. 15 C 8320, 2016 WL 7178461, at *3
(N.D. Ill.Dec. 8, 2016) (Lefkow, J.) (same); United
States v. Baires-Reyes,191 F.Supp.3d 1046, 1050-51
(N.D. Cal. June 7, 2016) (“[T]he force clause
explicitly encompasses attempted use of physical
force; by contrast, conspiracy is not specifically covered by
Section 924(c)'s force clause....”) (emphasis in
original); United States v. Smith, 215 F.Supp.3d
1026, 1034 (D. Nev. 2016) (“Agreeing to commit a
robbery does not necessarily involve the use, attempted use,
or threatened use of physical force”); United
States v. Luong, No. 2:99 CR 433, 2016 WL 1588495, at *2
(E.D. Cal. Apr. 20, 2016) (holding that conspiracy to commit
Hobbs Act robbery did not satisfy the force clause because a
jury would “not [be] required to find that [defendant]
used, attempted to use, or threatened to use physical force
in order to find him guilty of conspiracy”); United
States v. Edmundson,153 F.Supp.3d 857, 859 (D. Md.
2015) (finding it “undisputed that Hobbs Act Conspiracy
can be committed even without the use, attempted use, or
threatened use of physical force against the ...