United States v. Douglas

• Citation: 406 F.Supp.3d 541
• Decision Date: 24 September 2019
• Docket Number: Criminal Action No. 3:13CR114–HEH
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, v. Jaquan C. DOUGLAS, Defendant.

406 F.Supp.3d 541

UNITED STATES of America,

v.Jaquan C. DOUGLAS, Defendant.

Criminal Action No. 3:13CR114–HEH

United States District Court, E.D. Virginia, Richmond Division.

Signed September 24, 2019

Erik Sean Siebert, United States Attorney's Office, Richmond, VA, for Plaintiff.

Kenneth Lamar Singleton, Associated Law Offices of McGowan & Singleton, Virginia Beach, VA, for Defendant.

MEMORANDUM OPINION (Granting § 2255 Motion)

HENRY E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE

Jaquan C. Douglas, a federal inmate proceeding with counsel, filed this successive 28 U.S.C. § 2255 Motion (" § 2255 Motion," ECF No. 52) arguing that his firearm convictions are invalid under Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015).¹ The Government initially filed a Motion to Dismiss the § 2255 Motion contending that it is barred by the relevant statute of limitations. (ECF No. 56.) Thereafter, the Court ordered further briefing. In its most recent Supplemental Memorandum, the Government now argues that Douglas's claim is procedurally defaulted and barred from review here. (ECF No. 64, at 6–12.) The Government also asks in the alternative that, if the Court "were to disagree with the government's arguments about the validity of the defendant's § 924(c) conviction on Count Three and were to vacate that conviction, it should order a resentencing at which defendant and the government can urge an appropriate new sentence." (Id. at 12.) For the reasons discussed below, the § 2255 Motion will be granted.

I. PROCEDURAL HISTORY

On August 26, 2013, Douglas was charged by Criminal Information with: conspiracy to obstruct, delay, and affect, and attempt to obstruct, delay, and affect commerce by robbery by means of actual and threatened force and violence, in violation of 18 U.S.C. § 1951(a) ("conspiracy to commit Hobbs Act robbery") (Count One); aiding and abetting credit union robbery, in violation of 18 U.S.C. §§ 2113(a) and (Count Two); discharging a firearm in furtherance of a crime of violence, to wit, conspiracy to commit Hobbs Act robbery "as charged in in Count One, Overt Act 2, of this criminal information," in violation of 18 U.S.C. § 924(c) and (Count Three); and aiding and abetting brandishing a firearm in furtherance of a crime of violence, to wit, aiding and abetting credit union robbery, as charged in Count Two (Count Four). (ECF No. 30, at 1–5.)

On September 13, 2013, Douglas pled guilty to Counts One through Four. (ECF No. 34, at 1–2.)

On December 17, 2013, the Court sentenced Douglas to twelve months on Counts One and Two to be served concurrently, 120 months on Count Three to be served consecutively to Counts One and Two, and 300 months on Count Four to be served consecutively to Counts One, Two, and Three. (J. 2, ECF No. 46.) Douglas did not appeal.

On June 24, 2016, Douglas filed his § 2255 Motion arguing that his conviction and sentence in Count Three must be vacated in light of Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). Initially, the Government responded by moving to dismiss the § 2255 Motion on the ground that it was barred by the statute of limitations. As discussed below, after the Court required further briefing in light of recent decisions from the Fourth Circuit and the Supreme Court, the Government abandoned that defense.

II. ANALYSIS

In Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), the Supreme Court held "that imposing an increased sentence under the residual clause of the Armed Career Criminal Act [ ("ACCA") ] violates the Constitution's guarantee of due process." Id. at 2563.² The Johnson Court concluded that the way the Residual Clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), defined "violent felony" was unconstitutionally vague because the clause encompassed "conduct that presents a serious potential risk of physical injury to another," which defied clear definition. Id. at 2557–58 (citation omitted). Subsequently, in Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 194 L.Ed.2d 387 (2016), the Supreme Court held that " Johnson announced a substantive rule [of law] that has retroactive effect in cases on collateral review." Id. at 1268.

In his § 2255 Motion, Douglas asserts that after Johnson , conspiracy to commit Hobbs Act robbery can no longer qualify as a crime of violence under 18 U.S.C. § 924(c)(3), and thus, his conviction for Count Three must be vacated.³ As explained below, recent decisions from the Supreme Court and the Fourth Circuit support Douglas's challenge to Count Three where his firearm conviction was predicated upon conspiracy to commit Hobbs Act robbery.

A. Conspiracy to Commit Hobbs Act Robbery Cannot Serve As a Valid Predicate Crime of Violence for the § 924(c) Charge in Count Three

Title 18 U.S.C. section 924(c)(1)(A) provides for consecutive periods of imprisonment when a defendant uses or carries a firearm in furtherance of a crime of violence. The baseline additional period of imprisonment is five years. 18 U.S.C. § 924(c)(1)(A)(i). If the defendant brandishes the firearm, the additional period of imprisonment increases to at least seven years. Id. § 924(c)(1)(A)(ii). And, if the defendant discharges the firearm, the additional period of imprisonment increases to at least ten years. Id. § 924(c)(1)(A)(iii).

At the time of Douglas's convictions, the United States could demonstrate that an underlying offense constitutes a crime of violence if it established that the offense is a felony and satisfies one of two requirements. Namely, the statute defined a crime of violence as any felony:

(A) [that] has as an element the use, attempted use, or threatened use of physical force against the person or property of another [ (the "Force 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") ].

Id. § 924(c)(3). The Supreme Court recently invalidated the Residual Clause. United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019) (holding that " § 924(c)(3)(B) is unconstitutionally vague").

A defendant is guilty of Hobbs Act robbery if he or she "obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery ... or attempts or conspires so to do ...." 18 U.S.C. § 1951(a). That statute defines "robbery" as

the unlawful taking or obtaining of personal property from the person or in the presence of another, against his [or her] will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his [or her] person or property, or property in his [or her] custody or possession, or the person or property of a relative or member of his [or her] family or of anyone in his [or her] company at the time of the taking or obtaining.

Id. § 1951(b)(1). The Fourth Circuit recently determined that conspiracy to commit Hobbs Act robbery fails to satisfy the Force Clause. See United States v. Simms , 914 F.3d 229 (4th Cir. 2019).

In Simms , the defendant pled guilty to conspiracy to commit Hobbs Act robbery and to brandishing a firearm during and in relation to a "crime of violence," but later challenged his brandishing conviction on the theory that Hobbs Act conspiracy could not be considered a "crime of violence" under 18 U.S.C. § 924(c)(3). 914 F.3d at 232-33. Initially, the parties and the Fourth Circuit agreed that,

conspiracy to commit Hobbs Act robbery—does not categorically qualify as a crime of violence under the [Force Clause], as the United States now concedes. This is so because to convict a defendant of this offense, the Government must prove only that the defendant agreed with another to commit actions that, if realized, would violate the Hobbs Act. Such an agreement does not invariably require the actual, attempted, or threatened use of physical force.

Id. at 233–34 (citations to the parties' material omitted). Thereafter, the Fourth Circuit concluded that the Residual Clause of § 924(c) is void for vagueness. Id. at 236 ; accord United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019) (holding that " § 924(c)(3)(B) is unconstitutionally vague").

In the wake Davis and Simms , in other cases before this Court, the Government has conceded that "conspiracy to commit Hobbs Act robbery cannot serve as valid predicate crime of violence for [a] § 924(c) charge" and agreed to vacating the conviction and sentence. United States v. Oliver , No. 3:11CR63-HEH, 2019 WL 3453204, at *3 (E.D. Va. July 30, 2019). In the present case, the Government does not dispute that the conspiracy to commit Hobbs Act robbery cannot serve as valid predicate crime of violence for the § 924(c) charge in Count Three. Nevertheless, the Government contends that Douglas is not entitled to relief because he procedurally defaulted any challenge to his conviction based on Johnson. As explained below, infra Part II.C, this argument is unpersuasive.

B. The Government's Abandoned Statute of Limitations Argument

Initially, the Government filed a Motion to Dismiss the § 2255 Motion contending that it is barred by the relevant statute of limitations.⁴ However, it appears that the Government has abandoned this argument in its Supplemental Memorandum.⁵ The Government's decision not to pursue this defense is wise because it seems that Davis announced a new rule of constitutional law retroactively applicable to cases on collateral review which would entitle Douglas to a belated commencement of the limitation period under 28 U.S.C. § 2255(f)(3).⁶ Because the Government has abandoned its statute of limitation argument, the Court will not address it further.

C. Douglas Has Demonstrated Cause and Prejudice to Excuse His Default

A change in the law may constitute cause for a procedural default if it creates "a claim that ‘is so novel that its legal basis is not...