Mcrae v. United States

CRUSTANTATION MCRAE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 9:15-cr-0454-DCN-1

United States District Court, D. South Carolina, Beaufort Division

April 21, 2022

ORDER

DAVID C. NORTON, UNITED STATES DISTRICT JUDGE.

This matter is before the court on petitioner Crustantation McRae's (“McRae”) motion for reconsideration ECF No. 93. For the reasons set forth below, the court denies the motion.

I. BACKGROUND

On July 14, 2015, the government filed an indictment charging McRae with two counts: (1) robbery affecting interstate commerce in violation of 18 U.S.C. § 1951(a) (“Hobbs Act Robbery”) and (2) possessing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1) (“Count Two”). ECF No. 2. On February 1, 2017, McRae pled guilty to Count Two pursuant to a written plea agreement. ECF No. 53. On August 18, 2017, the court sentenced McRae to a term of imprisonment of 300 months consistent with the statutory mandatory minimum, followed by five years of supervised release. ECF No. 63. On May 7, 2018, McRae filed a motion requesting that the court vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. ECF No. 64. This matter was subsequently stayed until the Fourth Circuit resolved two then-pending cases, including United States v. Simms, 914 F.3d 229 (4th Cir. 2019). On June 23, 2020, the court denied McRae's § 2255 motion (the “§ 2255 Order”). ECF No. 91.

On August 2, 2021, McRae filed a motion styled as a motion for reconsideration. ECF No. 93. The United States of America (the “government”) responded in opposition on February 22, 2022. ECF No. 58. McRae did not file a reply. The motion is now ripe for the court's review.

II. DISCUSSION

A motion for reconsideration of a ruling denying a § 2255 motion is “treated either as one under Rule 59(e) or as one under Rule 60(b) [of the Federal Rules of Civil Procedure], a classification typically dependent on the date the motion is filed.” See Vargas v. United States, 2010 WL 11565414, at *2 (D.S.C. Dec. 20, 2010). Although he does not specify, McRae appears to bring this motion under the first ground of a Rule 59(e) motion, as he argues that the court failed to consider recent holdings from the Fourth Circuit and the Supreme Court. See Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th Cir. 2010) (citation omitted) (noting that a court may alter or amend a judgment if the movant shows “an intervening change in the controlling law”). However, as a Rule 59(e) motion, McRae's motion is untimely. See Fed.R.Civ.P. 59(e) (“A motion to alter or amend a judgment must be filed no later than 28 days after the entry of judgment.”). The court entered judgment in this case on June 24, 2021, ECF No. 92, and McRae filed his motion for reconsideration on August 2, 2021. Rule 59(e)'s time limitation also applies to motions for reconsideration of § 2255 orders. United States v. Prysock, 2012 WL 12836664, at *1 (D.S.C. Dec. 4, 2012). When such a motion is untimely, courts construe the motion as one filed under Rule 60(b). See United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003), abrogated in part on other grounds by United States v. McRae, 793 F.3d 392 (4th Cir. 2015) (“We focus on Fed. R. Civ. P. 60(b), because [the defendant]'s motion was filed more than [the requisite number of] days after the entry of judgment.”); Vargas, 2010 WL 11565414, at *2 (noting that if a motion is not filed within the 28-day period set for Rule 59(e) motions, it “will be examined under Rule 60(b)”); Prysock, 2012 WL 12836664, at *1 (construing an untimely Rule 59(e) motion to alter or amend as a Rule 60(b) motion). Accordingly, the court construes McRae's motion as a Rule 60(b) motion.

“[B]efore a party may seek relief under Rule 60(b), a party first must show timeliness, a meritorious defense, a lack of unfair prejudice to the opposing party, and exceptional circumstances.” Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993). “After a party has crossed this initial threshold, he then must satisfy one of the six specific sections of Rule 60(b).” Id. Specifically, Rule 60(b) provides that a court may relieve a party from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

The purpose of Rule 60(b) is to correct mistakes made in the issuance of a final judgment or order; it is not a vehicle for re-litigating claims brought by the petitioner in the § 2255 petition. Winestock, 340 F.3d at 206-07. Here, McRae's motion is most fairly read as asserting a right to relief from judgment under either Rule 60(b)(5) or (b)(6). But typically, under both Rule 60(b)(5) and (b)(6), “a change in decisional law subsequent to a final judgment provides no basis for relief.” Dowell, 993 F.2d at 48 (citing Hall v. Warden, Md. Penitentiary, 364 F.2d 495, 496 (4th Cir. 1966)). The same is true for “decisional law that occurred while [an inmate's] first post-conviction appeal was still pending.” United States v. Salas, 807 Fed.Appx. 218, 230 (4th Cir. 2020).

Those rules notwithstanding, McRae maintains that the court erred in failing to consider recent cases. Based on their merits, however, McRae's arguments are not exempted from Rule 60(b)'s exacting standards. In the court's § 2255 Order, the court held that McRae's conviction and sentence under Count Two were valid based on § 924(c)'s “force clause.” Section 924(c) prohibits any person “during and in relation to any crime of violence” from “us[ing] or carr[ying] a firearm” or “in furtherance of any such crime, possess[ing] a firearm.” 18 U.S.C. § 924(c)(1)(A). The section defines the term “crime of violence” as “an offense that is a felony” and:

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

Id. § 924(c)(3). “Courts commonly refer to § 924(c)(3)(A) as the ‘force clause' and to § 924(c)(3)(B) . . . as the ‘residual clause.'” Taylor v. United States, 2021 WL 1986774, at *3 (D.S.C. May 18, 2021).

In the § 2255 Order, the court agreed with McRae, who had argued in his § 2255 motion that the Supreme Court had recently determined that the residual clause was unconstitutionally vague in United States v. Davis, 139 S.Ct. 2319 (2019). ECF No. 91 at 4. However, the court determined that notwithstanding the invalidation of the residual clause, McRae's conviction under § 924(c) was still valid because the underlying Hobbs Act Robbery qualified as a crime of violence under the force clause. In reaching this decision, the court cited the Fourth Circuit's holding in United States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019) (“[W]e conclude that Hobbs Act robbery constitutes a crime of violence under the force clause of Section 924(c).”). In his motion for reconsideration, McRae argues that the court failed to consider another Fourth Circuit case, United States v. Green, 966 F.3d 176 (4th Cir. 2021). The court first considers the effect of Green on McRae's § 924(c) conviction-which was the focus of the § 2255 Order-before turning to the effect Green, in tandem with cases concerning the residual clause, has on McRae's sentence.

A. Section 924(c) Conviction

In Green, the Fourth Circuit determined that Hobbs Act robbery does not categorically qualify as a crime of violence under the career offender guidelines set forth in the United States Sentencing Guidelines (“USSG”) Manual § 4B1.2(a)(1). Id. at 181. The Fourth Circuit reasoned that the sentencing guidelines' force clause requires the use or threatened use of force “against the person of another, ” while Hobbs Act robbery may be committed by force or threats against a “person or property.” Id. (first quoting USSG § 4B1.2(a)(1); and then quoting 18 U.S.C § 1951(b)(1)) (emphases in original).

McRae does not appear to be arguing that his § 924(c) conviction is invalid. Nor can he. In Green, the Fourth Circuit specified that it was not overturning its ruling in Mathis-that Hobbs Act robbery is a crime of violence under § 924(c). Id. As the Fourth Circuit explained, “[§] 924 does contain a force clause, but that force clause -unlike § 4B1.2(a)(1)'s - covers use or threats of force against property as well as persons.” Id. (citing 18 U.S.C. § 924(c)(3)(A) (emphasis in original). As such, “[t]here is nothing incongruous about holding that Hobbs Act robbery is a crime of violence for purposes of 18 U.S.C. § 924(c)(3)(A).” Id. McRae appears to acknowledge this distinction, as he argues in his motion to reconsider that the court overlooked Green's impact on his sentence, which was premised on his career-offender status pursuant to USSG § 4B1.1(c)(3). To the extent that McRae argues that the court erred in upholding his § 924(c) conviction, McRae “misunderstands Green” because “Green does not undermine Mathis' holding that Hobbs Act robbery is a crime of violence for § 924(c) purposes.” See Hallman v. United States, 2021 WL 2518218, at *3 (W.D. N.C. June 18, 2021); see also Green, 966 F.3d at 181; Taylor, 2021 WL...