In re Matthews, 16-2027

• Decision Date: 14 August 2019
• Docket Number: 16-2312,No. 16-2027,No. 16-2414, No. 16-2080,Nos. 16-2273, No. 16-2422,16-2027,s. 16-2273,16-2414
• Citation: 934 F.3d 296
• Parties: IN RE: Michael MATTHEWS, Petitioner In re: David Dupree, Petitioner In re: Sebastian Williams, Petitioner In re: Larry Smith, Petitioner In re: Russell Wayne McNeill, III, Petitioner
• Court: U.S. Court of Appeals — Third Circuit

934 F.3d 296

IN RE: Michael MATTHEWS, Petitioner In re: David Dupree, Petitioner In re: Sebastian Williams, Petitioner In re: Larry Smith, Petitioner In re: Russell Wayne McNeill, III, Petitioner

No. 16-2027

No. 16-2080

Nos. 16-2273

16-2312

No. 16-2414

No. 16-2422

United States Court of Appeals, Third Circuit.

Argued October 9, 2018

Filed: August 14, 2019

Leigh M. Skipper, Arianna J. Freeman [ARGUED], Brett G. Sweitzer, Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540, West Philadelphia, PA 19106, USA, Counsel for Petitioner in No. 16-2027 & 16-2414

Heidi Freese, Ronald A. Krauss, Federal Defender Office for the Middle District of Pennsylvania, 100 Chestnut Street, Suite 306, Harrisburg, PA 17101, Counsel for Petitioner in No. 16-2080

Richard Coughlin, Julie A. McGrain, Federal Defender Office for the District of New Jersey, 800-840 Cooper Street, Suite 350, Camden, NJ 08102, Counsel for Petitioner in Nos. 16-2273 & 16-2312

Lisa B. Freeland, Elisa A. Long, Federal Defender Office for the Western District of Pennsylvania, 1001 Liberty Avenue, Suite 1500, Pittsburgh, PA 15222, Counsel for Petitioner in No. 16-2422

William M. McSwain, Robert A. Zauzmer, Office of United States Attorney, Eastern District of Pennsylvania, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Respondent in Nos. 16-2027 & 16-2414

David J. Freed, Stephen R. Cerutti, Office of United States Attorney, Middle District of Pennsylvania, Ronald Reagan Federal Building, Suite 220, 228 Walnut Street, Harrisburg, PA 17108, Counsel for Respondent in No. 16-2080

Craig Carpenito, Steven G. Sanders [ARGUED], Mark E. Coyne, Office of United States Attorney, District of New Jersey, 970 Broad Street, Newark, NJ 07102, Counsel for Respondent in Nos. 16-2273 & 16-2312

Scott W. Brady, Tina O. Miller, Rebecca R. Haywood, Laura S. Irwin, Office of United States Attorney, Joseph F. Weis, Jr. U.S. Courthouse, 700 Grant Street, Suite 4000, Western District of Pennsylvania, Pittsburgh, PA 15219, Counsel for Respondent in No. 16-2422

Before: AMBRO, CHAGARES, and GREENAWAY, JR., Circuit Judges.

OPINION OF THE COURT

GREENAWAY, JR., Circuit Judge.

This is a consolidated case involving five Petitioners—Michael Matthews, David Dupree, Sebastian Williams, Larry Smith, and Russell McNeill, III—each of whom have filed second or successive habeas petitions under 28 U.S.C. § 2255(h)(2)¹ to challenge their sentences for their convictions under 18 U.S.C. § 924(c). Each Petitioner’s § 2255 motion argues that § 924(c)(3) ’s residual clause is unconstitutionally vague, given its textual similarity to the residual clauses found unconstitutional by the Supreme Court in Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 2563, 192 L.Ed.2d 569 (2015), and Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1223, 200 L.Ed.2d 549 (2018). In the time since this case was argued before this Court, the Supreme Court issued its opinion in United States v. Davis , striking down § 924(c)(3)(B) as unconstitutionally vague. ––– U.S. ––––, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019). The parties concede that the petitions at issue are now timely under Davis , thus precluding the need for our analysis of the applicability of Johnson and Dimaya to these petitions. For the following reasons, we will authorize all of the petitions.²

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The five Petitioners in this action were convicted, among other offenses, of violating 18 U.S.C. § 924(c)(1)(A), which proscribes the use or carry of a firearm during and in relation to a "crime of violence" or "drug trafficking crime," as well as the possession of a firearm in the furtherance of any such crime. Section 924(c)(3) defines "crime of violence" to mean a felony offense that "(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another" (the "elements" clause) 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" (the "residual" clause). Under Davis , it is undisputed that Petitioners meet the prima facie requirements of this Circuit; therefore, we will authorize their petitions.

A. Michael Matthews

Michael Matthews and an accomplice planned, from about May 2009 to June 2009, to rob a check cashing store located in Philadelphia, Pennsylvania. Matthews armed himself with a .22 caliber handgun in furtherance of, and to effect the object of, the conspiracy. A grand jury in the Eastern District of Pennsylvania charged Matthews with one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Count 1); one count of attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Count 3); one count of using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 4); and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 5). On February 2, 2012, after a jury trial, the District Court entered judgment convicting Matthews on all counts, and sentenced him to 120 months’ imprisonment, to be served concurrently on Counts 1, 3, and 5, followed by 72 months’ imprisonment on the § 924(c) count (Count 4), for an aggregate sentence of 192 months’ imprisonment.

Matthews appealed his judgment of conviction, and this Court affirmed. See United States v. Matthews , 532 F. App'x 211 (3d Cir. 2013). Matthews filed a previous 28 U.S.C. § 2255 motion, which the District Court denied on July 14, 2015. He appealed to this Court, which denied a certificate of appealability on April 5, 2016. On April 27, 2016, Matthews filed an application for authorization to file a second or successive § 2255 motion.

B. David Dupree

David Dupree and several accomplices robbed a bank located in Lebanon, Pennsylvania on April 15, 2004. During and in relation to the bank robbery, Dupree possessed, carried, and brandished a handgun. A grand jury in the Middle District of Pennsylvania charged Dupree with one count of armed bank robbery, in violation of 18 U.S.C. § 2113(d) (Count 1); one count of using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 2); and one count of conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 371 (Count 3). On November 4, 2009, after a jury trial, the District Court entered judgment convicting Dupree on all counts, and on August 6, 2010, the District Court sentenced Dupree to 248 months’ imprisonment on Count 1 to be served concurrently with 60 months’ imprisonment on Count 3, and a consecutive term of 84 months’ imprisonment on the § 924(c) count (Count 2), for an aggregate sentence of 332 months’ imprisonment.

Dupree appealed his judgment of conviction, and this Court affirmed. See United States v. Dupree , 472 F. App'x 108 (3d Cir. 2012). Dupree filed a previous 28 U.S.C. § 2255 motion that was docketed in the District Court on June 15, 2012. On October 22, 2012, the court denied the motion. That denial was vacated for procedural reasons, and the District Court again denied a renewed § 2255 motion on June 29, 2015. Dupree appealed to this Court, which denied a certificate of appealability on February 3, 2016. On April 29, 2016, Dupree filed an application for authorization to file a second or successive § 2255 motion.

C. Sebastian Williams

Sebastian Williams and several accomplices, from March 2002 through August 2002, conspired to rob armored cars operated by a business that transported cash in such armored cars to and from various customers. On March 23, 2002, Williams and a co-conspirator, each armed with a handgun, robbed an armored truck of more than $600,000 cash, and attempted a second robbery on August 29, 2002. A grand jury in the District of New Jersey charged Williams with two counts of conspiracy to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Counts 1 and 3); and one count of carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 2). On March 24, 2003, after a jury trial, the District Court entered judgment convicting Williams on all counts, and on August 18, 2003, the District Court sentenced Williams to concurrent terms of 140 months’ imprisonment on Counts 1 and 3 and a consecutive term of 84 months’ imprisonment on the § 924(c) count, for an aggregate sentence of 224 months’ imprisonment. Williams’s conviction and sentence on Count 2, the § 924(c)(1)(A)(ii) count, was premised on the District Court’s determination at sentencing that he brandished the firearm.

Williams appealed his judgment of conviction. This Court upheld the convictions but vacated the sentence and remanded for re-sentencing in light of United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which rendered the once mandatory Sentencing Guidelines advisory. See United States v. Williams , 134 F. App'x 510 (3d Cir. 2005). On remand, the District Court re-imposed the same aggregate sentence of 224 months. Specifically, Williams was resentenced to 140 months on the conspiracy counts, to be served concurrently, and an additional term of 84 months on the § 924(c) count.

Williams filed a second appeal after his resentencing. One of the issues raised was whether his Sixth Amendment rights were violated when he was sentenced to a consecutive seven-year term of imprisonment under § 924(c)(1)(A)(ii) for brandishing the firearm. Williams contended that he should have received a five-year term instead, for mere use or carrying of a firearm, § 924(c)(1)(A)(i), as found by the jury. This Court held, based on the law at the time, that brandishing or discharging a firearm in violation of § 924(c) is a sentencing factor, rather than an element of the offense, that a judge may find to increase a...