Hall v. United States

• Decision Date: 19 January 2023
• Docket Number: Docket No. 17-1513,August Term, 2020
• Citation: 58 F.4th 55
• Parties: Benjamin HALL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

58 F.4th 55

Benjamin HALL, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

Docket No. 17-1513

August Term, 2020

United States Court of Appeals, Second Circuit.

Argued: January 21, 2021

Decided: January 19, 2023

Jonathan I. Edelstein, Edelstein & Grossman, New York, NY, for Petitioner-Appellant.

Alixandra E. Smith (Jo Ann M. Navickas, David C. Pitluck, on the brief), for Seth D. DuCharme, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY, for Respondent-Appellee.

Before: Kearse, Leval, and Carney, Circuit Judges.

Judge KEARSE concurs in a separate opinion.

Carney, Circuit Judge:

In October 2015, Petitioner-Appellant Benjamin Hall pleaded guilty to two counts: conspiracy to commit Hobbs Act robbery, see 18 U.S.C. § 1951(a), and unlawful use of a firearm in furtherance of a crime of violence, see id. § 924(c)(1)(A). In his plea agreement, Hall waived his right to appeal or collaterally challenge his convictions and sentence so long as the district court sentenced him to a term of imprisonment equal to or less than 106 months. He was sentenced principally to a 96-month term of imprisonment.

Hall now appeals from the April 2017 order of the district court (Glasser, J .) denying his motion under 28 U.S.C. § 2255 to vacate his section 924(c)(1)(A) conviction and his corresponding sentence. He contends that the Supreme Court's decisions in Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), invalidate his conviction on that count. Johnson held the residual clause of 18 U.S.C. § 924(e)(2)(B) to be unconstitutionally vague; Davis held similarly as to the residual clause of 18 U.S.C. § 924(c)(3), which had defined permissible predicates for Hall's crime of conviction, id. § 924(c)(1)(A). Because his predicate crime was a conspiracy charge covered by the residual clause of section 924(c)(3), it follows (he submits) that his conviction under section 924(c)(1)(A) must now be set aside.¹

The government disputes, among other issues, whether his guilty plea to the section 924(c)(1)(A) conviction rested solely on Hobbs Act robbery conspiracy, contending that it also rested on the predicate crime of attempted Hobbs Act robbery. It asserts that the record is sufficient to support Hall's guilt under section 924(c)(1)(A) based on attempted Hobbs Act robbery.

On de novo review, and in light of the Supreme Court's recent decision in United States v. Taylor , ––– U.S. ––––, 142 S. Ct. 2015, 213 L.Ed.2d 349 (2022), that attempted Hobbs Act robbery is not a "crime of violence," we conclude that Hall's conviction under section 924(c)(1)(A) is invalid. We therefore REVERSE the district court's order denying Hall relief under section 2255 ; we VACATE Hall's conviction and related sentence under 18 U.S.C. § 924(c)(1) ; and we REMAND to the district court. The district court in its discretion may either leave standing Hall's sentence on the Hobbs Act robbery conspiracy, or it may resentence on that count if it concludes that the existing sentence is inadequate when no longer supplemented by the consecutive 60-month sentence imposed on the now-vacated section 924(c) conviction.

BACKGROUND

In November 2014, Hall was charged in the Eastern District of New York with crimes arising from a July 2013 incident in which Hall and Ringo Delcid, a co-conspirator, allegedly attempted to rob a drug dealer in Queens. The criminal complaint alleged that, with the robbery underway, Hall and Delcid realized that they had been observed by members of the New York City Police Department. Abandoning the project, they fled. They were later apprehended and prosecuted.

In April 2015, a second superseding indictment charged Hall, Delcid, and two other co-defendants with crimes related to the July 2013 incident. Hall was charged on five counts: conspiracy to commit Hobbs Act robbery, see 18 U.S.C. § 1951(a) (Count Three); attempted Hobbs Act robbery, see id. (Count Four); use of a firearm in connection with a crime of violence, see id. § 924(c)(1)(A)(i) (Count Five); conspiracy to harbor and conceal a person from arrest, see id. §§ 371, 1071 (Count Six); and harboring and concealing a person from arrest, see id. § 1071 (Count Seven). Count Five—the section 924(c)(1)(A) count—was brought against Hall and two co-defendants. It referred to the "crimes charged in Counts Three and Four" as the predicate "crimes of violence." J. App'x at 44.

In October 2015, at his change of plea hearing in the district court, Hall entered a guilty plea to two counts: Hobbs Act robbery conspiracy (Count Three) and violating section 924(c)(1)(A) (Count Five). In his concurrently signed plea agreement, he agreed to plead guilty to the same counts. He also waived his right to appeal or otherwise challenge his convictions or sentence if the district court imposed on him a term of imprisonment of 106 months or less. The district court accepted Hall's plea and, in April 2016, sentenced him to a 36-month term of imprisonment on the Hobbs Act robbery conspiracy count and a consecutive 60-month term of imprisonment on the section 924(c)(1)(A) count, for a total sentence of 96 months. Hall did not appeal.

In July 2016, Hall moved under 28 U.S.C. § 2255 for vacatur of his conviction and sentence, alleging ineffective assistance by his counsel during the plea process. He later moved to amend the motion to argue that vacatur of his conviction was required by the Supreme Court's decision in Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), in which the Court held void for vagueness the residual clause of section 924(e). Section 924(e)(2)(B) defined a "violent felony" in relevant part as a crime that "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ." 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). Through that definition, the statute authorized the imposition of heightened penalties to the crime of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).

Hall maintained that the vagueness principles articulated in Johnson also necessarily invalidated the residual clause found in the similar statutory definition of "crime of violence" appearing in section 924(c)(3)(B) : that is, that a "crime of violence" for purposes of section 924(c) is one 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." 18 U.S.C. § 924(c)(3)(B). After Johnson , Hall claimed, conspiracy to commit Hobbs Act robbery could no longer serve as a predicate for his conviction under section 924(c)(1)(A), rendering his conviction and sentence on that count invalid.

The district court denied relief. Concluding that Hall's guilty plea and appellate waiver were knowing and voluntary, it enforced Hall's waiver. It also rejected Hall's substantive claim under Johnson , citing this Circuit's precedent to the effect that section 2255 petitions relying on Johnson may be barred by a plea agreement that waives collateral attack. See, e.g. , Sanford v. United States , 841 F.3d 578, 580–81 (2d Cir. 2016) (per curiam ).

Hall moved for a certificate of appealability in this Court. While his motion was pending, the Supreme Court decided United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). In Davis , the Court found unconstitutionally vague the residual clause in 18 U.S.C. § 924(c)(3)(B), on which Davis's challenged conviction for using a gun in furtherance of Hobbs Act robbery conspiracy directly relied. In light of Davis , the Supreme Court vacated and remanded our decision regarding section 924(c) in United States v. Barrett , 903 F.3d 166 (2d Cir. 2018) (" Barrett I "). See Barrett v. United States , ––– U.S. ––––, 139 S. Ct. 2774, 204 L.Ed.2d 1154 (2019). On remand, we held that conspiracy to commit Hobbs Act robbery is not a "crime of violence" under section 924(c). See United States v. Barrett , 937 F.3d 126 (2d Cir. 2019) (" Barrett II ").

After our decision in Barrett II , we granted Hall a certificate of appealability on the following issues: "[W]hether [Hall's] waiver of the right to challenge his 18 U.S.C. § 924(c) conviction should be enforced, and, if not, whether his § 924(c) conviction should be vacated." Dkt. No. 47. Because the government no longer intends to rely on Hall's appeal waiver as a bar to his petition for relief, the sole remaining question is that of the validity of his section 924(c) conviction. For the reasons set forth below, we vacate that conviction and remand for resentencing.

DISCUSSION

We review de novo the district court's denial of Hall's section 2255 motion because it presents only questions of law. See Collier v. United States , 989 F.3d 212, 217 (2d Cir. 2021). Because the effect of Hall's appellate waiver is no longer at issue, we turn directly to the question whether his conviction for using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1) must be vacated for want of a qualifying predicate crime of violence.² Our answer turns on consideration of two related issues: first, whether Davis is available to Hall on collateral review, and, second—if it is—whether Hall's conviction rested on a valid predicate (notwithstanding Davis ’s effect on Hall's conviction for Hobbs Act robbery conspiracy). We address each in turn.

I. Davis announced a new substantive rule that is available to Hall on collateral review

Hall argues that, although his conviction became final before Davis was decided, the Supreme Court's holding in Davis represents a new substantive rule that applies retroactively and is therefore available to him on collateral review.

The framework for determining whether a decision applies retroactively to cases on collateral review is set...