Cherry v. United States
Decision Date | 15 July 2022 |
Docket Number | CIVIL 3:21-CV-2604-K,CRIMINAL 3:15-CR-191-K-3 |
Parties | RICKEY CHERRY, #53919-177, Movant, v. UNITED STATES OF AMERICA, Respondent. |
Court | U.S. District Court — Northern District of Texas |
Movant Rickey Cherry (“Cherry”) filed a pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. As detailed herein, the motion to vacate sentence is summarily DISMISSED WITH PREJUDICE.
On April 30, 2018, a jury convicted Cherry of two counts of interference with commerce by robbery and aiding and abetting (Hobbs Act robbery), 18 U.S.C. §§ 1951(a) & 2 and two counts of using, carrying, and brandishing a firearm during and in relation to a COV and aiding and abetting, 18 U.S.C. §§ 924(c)(1)(A)(ii), (C)(i) & 2. On January 15, 2020, he was sentenced to a total term of 308 months' imprisonment-140 months for the Hobbs Act robberies, to run concurrently with each other, and 84-month terms for the firearm counts, to run consecutively with each other, and consecutively with the term imposed on the Hobbs Act counts. Crim. Doc. 222. On February 18, 2021, the United States Court of Appeals for the Fifth Circuit affirmed Cherry's conviction and sentence. United States v. Wright, 845 Fed.Appx. 334 (5th Cir. 2021) (per curiam).
On October 19, 2021, Cherry timely filed this § 2255 motion. Doc. 3. He asserts defense counsel rendered ineffective assistance in failing to (1) object to a 4 level enhancement under U.S.S.G. § 2B3.1(b)(4)(A), and (2) argue his § 924(c) convictions were invalid because Hobbs Act robbery is not a crime violence. Doc. 6 at 11-16. On December 22, 2021, Cherry filed a motion to amend, which the Court subsequently construed as a request to supplement. Doc. 7 ( ). Later on June 29, 2022, he filed a supplemental pleading referencing § 403 of the First Step Act, Pub. L. No. 115391, 132 Stat. 5194, which became effective before he was sentenced in this case. Doc. 8.
Upon review, the Court finds that Cherry is not entitled to relief under § 2255. Thus, his § 2255 motion should be summarily dismissed. See Rule 4(b) of the RULES GOVERNING SECTION 2255 PROCEEDING ().
The Sixth Amendment to the United States Constitution guarantees a defendant reasonably effective assistance of counsel at all critical stages of a criminal proceeding. See Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). To obtain postconviction relief on a claim that defense counsel was constitutionally ineffective, a defendant must prove that counsel's representation “fell below an objective standard of reasonableness” and that any such deficiency was “prejudicial to the defense.” Strickland v. Washington, 466 U.S. 668, 688, 692 (1984). Failure to establish either deficient performance or prejudice defeats the claim. Id. at 697.
To prove the deficient-performance prong of the Strickland test, the movant must show that counsel made errors so serious that he or she was not functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687. The proper measure of attorney performance is reasonableness under prevailing professional norms. Id. at 688. That said, “[j]udicial scrutiny of counsel's performance must be highly deferential.” Id. at 689. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id.
Moreover, to demonstrate prejudice in the sentencing context, the movant must demonstrate that his sentence was increased by the deficient performance of defense counsel. Glover v. United States, 531 U.S. 198, 200, 203-04 (2001).
18 U.S.C. § 924(c)(1) criminalizes the carrying, use, or discharge of a firearm during, or in furtherance of, any “crime of violence” or “drug trafficking crime.” 18 U.S.C. § 924(c)(3) defines the term “crime of violence” to mean:
In United States v. Davis, 139 S.Ct. 2319 (2019), the Supreme Court held that the residual clause of § 924(c)(3)(B) is unconstitutionally vague. Davis, however, did not invalidate § 924(c) convictions that are supported by a Hobbs Act robbery. Indeed, the Fifth Circuit Court of Appeals previously held that Hobbs Act robbery is crime of violence (“COV”) under the elements clause, § 924(c)(3)(A), and that it may be a predicate conviction for sentencing under § 924(c)(1)(A)(ii). See United States v. Bowens, 907 F.3d 347, 353-54 (5th Cir. 2018), cert. denied, 139 S.Ct. 1299 (2019) (“[B]inding circuit precedent forecloses [Defendant's] claim that Hobbs Act robbery is not a COV predicate under 18 U.S.C. § 924(c)(3)(A)” (citing United States v. Buck, 847 F.3d 267, 275 (5th Cir. 2017)); United States v. Davis, 903 F.3d 483, 485 (5th Cir. 2018) (per curiam), aff'd in part and vacated in part, 139 S.Ct. 2319 (2019) ().
The Fifth Circuit reached the same conclusion in Cherry's direct appeal, when it found his claim was foreclosed by prior precedent. Wright, 845 Fed.Appx. at 338 (Hobbs Act robbery does not satisfy § 924(c)(3)(A) (citing Bowens, 907 F.3d at 353-54; Buck, 847 F.3d at 274-75)) argument that . By contrast, attempted Hobbs Act robbery and conspiracy to commit Hobbs Act robbery do not qualify as a COV under § 924(c). See United States v. Taylor, U.S., 142 S.Ct. 2015, 2021 (2022) ( ); United States v. Lewis, 907 F.3d 891, 894-95 (5th Cir. 2018) ( ); see also United States v. Reece, 938 F.3d 630 (5th Cir. 2019), as revised (Sept. 30, 2019) () .
Undeterred, Cherry argues that Hobbs Act robbery does not satisfy § 924(c)(3)(A). Doc. 6 at 12-15; Doc. 7 at 1. His argument is unavailing, however. The record confirms his § 924(c) convictions were predicated upon substantive Hobbs Act robberies, not attempted Hobbs Act robbery or conspiracy to commit Hobbs Act robbery. See United States v. Wooten, No. 21-20068, 2021 WL 4841213, at *1 (5th Cir. Oct. 15, 2021) ; Houston v. United States, No. 3:19-CV-02040-N (BT), 2022 WL 1129908, at *3 (N.D. Tex. Mar. 16, 2022), R. & R. adopted, No. 3:19-CV-02040-N-BT, 2022 WL 1128726 (N.D. Tex. Apr. 15, 2022) (Davis has no effect on § 924(c) conviction predicated on substantive Hobbs Act robbery).
Next, Cherry challenges the four-level increase under U.S.S.G. § 2B3.1(b)(4)(A). His claim is likewise unavailing. That section “authorizes a four-level increase of the offense level if any person was abducted to facilitate commission of robbery or to facilitate escape after robbery.” Wright, 845 Fed.Appx. at 338 (internal quotations and citations omitted). In rejecting Cherry's arguments on direct appeal, the Fifth Circuit stated:
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