Whiting v. United States

RODNEY WHITING, Petitioner v. UNITED STATES OF AMERICA, Respondent

CASE NO. 3:16-CR-64-02

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

February 11, 2021

(JUDGE MANNION)

MEMORANDUM

Pending before the court is petitioner Rodney Whiting's ("Whiting") Motion to Vacate, Set Aside, or Correct his 84-month sentence of imprisonment imposed on April 17, 2017. (Doc. 145). Whiting is currently serving his prison sentence at FCI Fort Dix, New Jersey. Whiting's motion is filed pursuant to 28 U.S.C. §2255 and is based upon the Supreme Court's decision in United States v. Davis, — U.S. —, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019) (holding that the residual clause of 18 U.S.C. §924(c)(3)(B) is unconstitutionally vague and violated the Due Process Clause). Whiting claims that his conviction and sentence on Count 3 for a violation of 18 U.S.C. §924(c) must be vacated because his predicate offense of Hobbs Act robbery can no longer be considered a crime of violence. As relief, Whiting requests the court to vacate his conviction and sentence for a violation of §924(c) arguing that it violates his due process rights based on Davis. For the following reasons, Whiting's motion, (Doc. 156), will be DENIED.

I. BACKGROUND¹

On March 15, 2016, an Indictment was filed against Whiting and his three co-defendants, Tracy Whiting, Kwa'Shone Roane, and Kelvin Robinson, based on their alleged involvement in a robbery of the Econo Lodge in Scranton, Pennsylvania, on February 13, 2016. (Doc. 1). The Indictment charged all four defendants with the following offenses: Count 1, Conspiracy to Commit Interference with Commerce by Robbery, in violation of 18 U.S.C. §1951; Count 2, Interference with Commerce by Robbery, in violation of 18 U.S.C. §1951 ("Hobbs Act" robbery); and Count 3, Use of a Firearm During and in Furtherance of a Crime of Violence, in violation of 18 U.S.C. §924(c). Counts 2 and 3 also included Aiding and Abetting, in violation of 18 U.S.C. §2, and Pinkerton liability.

On October 6, 2016, Whiting executed a written plea agreement. (Doc. 84). On October 18, 2016, Whiting pled guilty to Count 3 of the Indictment. Specifically, Count 3 charged that on February 13, 2016, Whiting and his three co-defendants, aiding and abetting each other, did knowingly use, carry, brandish and possess firearms, namely, handguns, during and in relation to, and in furtherance of, a crime of violence, that is, the interference with commerce by robbery, committed at the Econo Lodge, 1175 Kane Street, Scranton, Pennsylvania, a violation of 18 U.S.C. §1951 and §924(c)(1)(A). (Doc. 1).²

After Whiting's guilty plea, the court directed that a presentence investigation report ("PSR") be prepared. The PSR was filed on February 10, 2017. (Doc. 120).

With respect to Count 3, the plea agreement indicated that Whiting, aiding and abetting others who, during the commission of the robbery at the Econo Lodge, brandished firearms, and money ($180) was obtained from an employee of the Lodge, against the employee's will, by means of actual and threatened force, violence, and fear of injury to the employee. It was also noted that the facts were foreseeable to Whiting, who drove a rental vehicle to the robbery scene and was the "get away" driver, since he had advanceknowledge that his accomplices would use, possess, and carry firearms during, in relation to, and in furtherance of the robbery. The PSR indicated that Whiting admitted that his cousin, Tracy Whiting, and his friends, Kelvin Robinson and Kwa'Shon Roane came to Scranton to visit him and, that they discussed committing a robbery. Whiting then drove his cousin and their friends to the Econo Lodge and, he believed that all three men possessed firearms when they exited the vehicle. The PSR also indicated that surveillance video from the Lodge showed the robbers brandishing handguns and forcing the employee behind the counter at gunpoint and stealing money from a cash register. (PSR ¶'s 7-11).

On April 17, 2017, Whiting was sentenced to a term of imprisonment of 84 months on Count 3, followed by a 2-year term of supervised release. (Doc. 145). Whiting did not file a notice of appeal with the Third Circuit regarding his judgment of sentence.

On June 23, 2020, Whiting filed a motion, pursuant to 28 U.S.C. §2255, to vacate his conviction under §924(c) based on the Davis case. (Doc. 156). On June 24, 2020, pursuant to this court's Standing Order 19-08, Whiting was appointed counsel from the Federal Public Defender Office, pursuant to the Criminal Justice Act, 18 U.S.C. §3006A, to represent him and to assist him with his motion to vacate predicated on the Davis case. (Doc. 159). Specifically, Whiting seeks the court to set aside his conviction and sentenceon Count 3 of the Indictment, for a violation of Section 924(c), alleging that his predicate offense is no longer a crime of violence.

The court directed the government to respond and, on August 20, 2020, the government timely filed its brief in opposition to Whiting's motion. (Docs. 165 & 168). On September 1, 2020, Whiting filed his reply brief. (Doc. 176).

Having been fully briefed, Whiting's motion is now ripe for review.

II. STANDARD

When a district court judge imposes a sentence on a defendant who believes "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, [the defendant] may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. §2255, ¶1; see United States v. Eakman, 378 F.3d 294, 297-98 (3d Cir. 2004).

"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States Attorney, grant a prompt hearingthereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. §2255(b).

A §2255 motion "is addressed to the sound discretion of the district court." United States v. Williams, 615 F.2d 585, 591 (3d Cir. 1980). "[A] motion under 28 U.S.C. §2255 is the proper procedure for a federal prisoner to raise a collateral attack on his or her federal sentence for any error that occurred at or prior to sentencing." Paulino v. U.S., 2010 WL 2545547, *2 (W.D. Pa. June 21, 2010) (citations omitted). "In order to prevail on a §2255 motion to vacate, set aside, or correct a sentence, a Petitioner must show '(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.'" U.S. v. Bates, 2008 WL 80048, *2 (M.D. Pa. Jan. 7, 2008) (quoting Mallet v. U.S., 334 F.3d 491, 496-97 (6^th Cir. 2003)). "The petitioner bears the burden of proof under §2255 and must demonstrate his right to relief by a preponderance of the evidence." U.S. v. Ayers, 938 F.Supp.2d 108, 112 (D. D.C. 2013) (citation omitted).

Additionally, "Section 2255 does not afford a remedy for all errors that may have been made at trial or during sentencing", "[r]ather, Section 2255 is implicated only when the alleged error raises 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Williams v. UnitedStates, 2016 WL 6892375, *2 (M.D. Pa. Nov. 22, 2016) (internal citations omitted).

"If the court determines that the sentence was not authorized by law, was unconstitutional, or is otherwise open to collateral attack, the court may vacate the judgment, resentence the prisoner, or grant the prisoner a new trial as appropriate." United States v. Milan, 2020 WL 6682535, *2 (M.D. Pa. Nov. 12, 2020) (citing 28 U.S.C. §2255(b)).

III. DISCUSSION

This court has jurisdiction over Whiting's motion under §2255 pursuant to 28 U.S.C. §§1331 and 2241.

In his §2255 motion, Whiting seeks to vacate his conviction under §924(c) as unconstitutional, claiming that the underlying predicate crime of Hobbs Act robbery no longer qualifies as a "crime of violence" under the rule announced by the Supreme Court in Davis. Since his motion was filed within one year of the date on which the Davis decision was issued, (June 24, 2019), it is timely. See Milan, 2020 WL 6682535, *2 ("A federal prisoner may ... file a §2255 motion within one year from '[t]he date on which the right asserted was initially recognized by the Supreme Court, if that right was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.'") (citing 28 U.S.C. §2255(f)(3)). The court alsofinds no merit to the government's penultimate argument that Whiting's claim based on Davis is procedurally defaulted and that he could have raised this issue earlier when the case was initially charged. Whiting's instant constitutional vagueness challenge to §924(c)(3)(B) was not available to him prior to Davis. See In re Matthews, 934 F.3d 296 (3d Cir. 2019) (Third Circuit authorized petitioners' second or successive §2255 motions after the Davis case finding that they were timely and that the issue of whether "petitioners' crimes fall under the elements clause or the challenged residual clause is itself a merits inquiry."). See also United States v. Cunningham, 2020 WL 6504636 (M.D. Pa. Nov. 5, 2020) (after the Davis decision, the Third Circuit authorized defendant's second or successive Section 2255 motion to vacate his conviction and consecutive mandatory minimum sentence under 18 U.S.C. §924(c) claiming that his conviction as to this offense cannot rest on the residual clause of Section 924(c)(3)(B) since it is unconstitutionally vague).

The court will now consider the merits of Whiting's instant claim based on Davis.

As the court in Milan, 2020 WL 6682535, *2, explained:

Under Section 924(c)(1)(A), enhanced punishments apply for any individual who uses,

...