United States v. Smith

465 F.Supp.3d 551

UNITED STATES of America

v.Joshua SMITH

Criminal Action No. 1:16-cr-6

Civil Action No. 1:20-cv-486

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

Signed June 9, 2020

Rebeca H. Bellows, United States Attorney's Office, Alexandria, VA, for United States of America.

Bruce A. Johnson, Jr., Bowie, MD, for Joshua Smith.

ORDER

T. S. Ellis, III, United States District Judge

This matter is before the Court on Defendant Joshua Smith's motion for post-conviction relief pursuant to 28 U.S.C. § 2255. Defendant argues that his convictions must be vacated because of the Supreme Court's recent decision in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). The matter has been fully briefed and thus is ripe for disposition. Oral argument is dispensed with as the facts and legal contentions are adequately set forth in the existing record and oral argument would not aid the decisional process. For the reasons that follow, defendant's § 2255 motion must be denied.

I.¹

On March 3, 2016, a federal grand jury returned a Superseding Indictment charging defendant with conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Count 1); four separate counts of Hobbs Act robbery, in violation of 18 U.S.C. §§ 2 and 1951 (Counts 5, 9, 10, 17); and four separate counts of using, carrying, and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c) (Counts 21, 25, 26, 33). See Superseding Indictment (Dkt. 40). The charges against Smith in the Superseding Indictment arose out of Smith's participation in four armed robberies of commercial establishments in the Eastern District of Virginia. Id.

On May 17, 2016, Smith pleaded guilty to Counts 1 and 25 of the Superseding Indictment pursuant to a plea agreement. See Plea Agreement (Dkt. 76). As noted, Count 1 charged Smith with conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and Count 25 charged Smith with using, carrying, and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c). See Superseding Indictment (Dkt. 40), 1-14, 38. Specifically, the underlying crime of violence charged in Count 25 was the November 10, 2015 armed robbery of the Potomac Cleaners located at 5101 Seminary Road, Alexandria, Virginia charged in Count 9. See id. at 38.

As part of the statement of facts in Smith's plea agreement, Smith admitted to conspiring with three other people to commit armed robberies of commercial establishments and to participating in four separate armed robberies, including the November 10, 2015 robbery of the Potomac Cleaners, the crime of violence underlying Count 25. See Statement of Facts (Dkt. 77). Specifically, Smith admitted that at approximately 3:30 p.m. on November 10, 2015, Smith, while wearing a ski mask and brandishing a firearm, entered the Potomac Cleaners with another man and took approximately $200 in cash from the register. Id. at ¶ 3. The Court accepted Smith's guilty plea to Count 1 and to Count 25 of the Superseding Indictment, and thereafter dismissed the remaining counts of the Superseding Indictment against Smith on the government's motion. See United States v. Smith , 16-cr-6, Dkt. 78 (E.D. Va. May 17, 2016) (order granting government's motion to dismiss Counts 5, 9, 10, 17, 21, 26, and 33); Plea Agreement (Dkt. 76), at 7.

According to the Presentence Investigation Report ("PSR"), which was adopted by the Court at sentencing, defendant had a total offense level of 28 and a criminal history category of I. See PSR (Dkt. 119), at 22. Thus, a guidelines range of 78 to 97 months applied to Count 1, and a mandatory-minimum of 84 months to be served consecutively applied to Count 25. See id. On August 4, 2016, the Honorable James C. Cacheris, United States District Judge, sentenced Smith to a term of 96 months of imprisonment on Count 1 and to a term of 84 months of imprisonment on Count 25, to be served consecutively. See Judgment as to Joshua Smith (Dkt. 125). Accordingly, Smith was sentenced to a total term of 180 months of imprisonment. Id. Smith did not file a direct appeal of his conviction or his sentence.

On April 27, 2020, Smith filed a pleading styled as an "Informal Request to file a 2255 Motion." See Motion to Vacate (Dkt. 158). On April 28, 2020, an Order issued requiring the government to respond to defendant's motion. See United States v. Smith , 16-cr-6, Dkt. 159 (E.D. Va. Apr. 28, 2020). On May 28, 2020 the government filed a response opposing defendant's motion. See Response in Opposition (Dkt. 160). On June 8, 2020, defendant filed a reply to the government's opposition. See Reply to Opposition (Dkt. 163). For the reasons that follow, defendant's § 2255 motion must be denied.

II.

The Supreme Court has interpreted § 2255 as stating four grounds on which relief may be claimed: (1) that the sentence was imposed in violation of the Constitution or laws of the United States, (2) that the court was without jurisdiction to impose such sentence, (3) that the sentence was in excess of the maximum authorized by law, and (4) that the sentence is otherwise subject to collateral attack. Hill v. United States , 368 U.S. 424, 426-27, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (quoting 28 U.S.C. § 2255 ). A defendant attacking his conviction bears the burden of establishing at least one ground that justifies relief. See 28 U.S.C. § 2255. And defendant's burden in this respect is a "significantly higher hurdle" than "would exist on direct appeal." United States v. Frady , 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). It is well-settled that "[h]abeas review is an extraordinary remedy and will not be allowed to do service for an appeal." Bousley v. United States , 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Stated plainly, relief under § 2255 is designed to correct for fundamental constitutional, jurisdictional, or other errors, and it is therefore reserved for situations in which failing to grant relief would otherwise "inherently result[ ] in a complete miscarriage of justice." United States v. Addonizio , 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (quoting Hill v. United States , 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ). As discussed below, defendant's asserted ground for relief fails to meet this high hurdle and, therefore, defendant's motion must be denied.

III.

Defendant, citing the Supreme Court's decision in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), argues that his convictions must be vacated because conspiracy to commit Hobbs Act robbery no longer qualifies as a "crime of violence" under § 924(c). See Motion to Vacate (Dkt. 158), at 1. For the reasons that follow, defendant's convictions on Count 1 and Count 25 are not affected by Davis or any other case that has addressed the constitutionality of the residual clause of § 924(c). Accordingly, defendant's § 2255 motion must be denied. Defendant's convictions and sentence remain valid and lawful.

Federal law, as codified at 18 U.S.C. § 924(c)(1)(A), provides that a person who uses or carries a firearm "during and in relation to any crime of violence" or who "possesses a firearm" "in furtherance of any such crime" may be convicted of both the underlying crime and the additional, distinct crime of utilizing a firearm in connection with a "crime of violence." See United States v. Simms , 914 F.3d 229, 233 (4th Cir. 2019) (en banc). Section 924(c)(3) defines "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.

18 U.S.C. § 924(c)(3). Courts commonly refer to § 924(c)(3)(A) as the "force clause" and to Section 924(c)(3)(B) as the "residual clause." Simms , 914 F.3d at 233. In Davis , the Supreme Court case that defendant relies on in his § 2255 motion, the Supreme Court held that the "crime of violence" definition set forth in § 924(c)'s residual clause, 18 U.S.C. § 924(c)(3)(B), was unconstitutionally vague and vacated the defendants' conviction in that case for violating Section 924(c)(3)(B). See 139 S. Ct. at 2336.²

As noted, defendant has been convicted of and sentenced for two federal crimes, namely Count 1 and Count 25 of the Superseding Indictment. With respect to Count 1, defendant was convicted of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).³ In this respect, neither Davis , nor any other case cited by defendant or the government, calls into question the constitutionality of § 1951(a). To be clear, Davis does not affect the validity of Section 1951(a). The Supreme Court in Davis vacated those defendants' § 924(c)(3)(B) conviction; significantly, the Supreme Court did not disturb those defendants' conviction for conspiracy to commit Hobbs Act robbery in violation of § 1951(a). See id. at 2336.⁴ Simply put, § 924(c)(3)(B) and § 1951(a) are two entirely different federal criminal statutes, and conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), remains a valid federal crime. Indeed, case law is uniform in support of the validity of § 1951(a).

Here, defendant pled guilty to conspiracy to commit Hobbs Act robbery, in violation of Section 1951(a), and defendant was sentenced to a guidelines range sentence of 96 months' imprisonment for that offense. Accordingly, neither Davis nor any other case provides any basis to vacate defendant's conviction on Count 1, and therefore defendant's motion to vacate his sentence with respect to the crime of conspiracy to commit Hobbs Act robbery in Count 1 must be denied.

With respect to Count 25, defendant was convicted of using, carrying, and...