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United States v. Pomerleau

United States District Court, D. Maine

October 24, 2016

UNITED STATES OF AMERICA,
v.
MICHAEL A. POMERLEAU, Defendant/Petitioner

ORDER ON MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          D. Brock Hornby United States District Judge.

         Is Hobbs Act robbery a crime of violence within the meaning of 18 U.S.C. § 924(c)(1) and (c)(3), given the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), declaring the residual clause of the Armed Career Criminal Act unconstitutionally vague? I follow the recent decisions of this District and the Second Circuit concluding that, even after Johnson, Hobbs Act robbery is a crime of violence.

         Facts and Procedural Background

         The defendant pleaded guilty to three Hobbs Act robberies that he committed on July 7 and 8, 2007. Information Counts 1, 2, & 4 (ECF No. 24). In relation to one of them, he pleaded guilty to knowingly brandishing a firearm “in furtherance of, during and in relation to a crime of violence.” Id. Count 3. On March 31, 2008, I sentenced him to 57 months concurrently on the three Hobbs Act robberies and a mandatory 84-month (7-year) consecutive sentence on the brandishing count. After Johnson, he filed a motion under 28 U.S.C. § 2255 attacking the 7-year brandishing sentence.

         Statutes

         Title 18 U.S.C. section 924(c)(1)(A) requires an additional seven years of prison for anyone who brandishes a firearm “during and in relation to any crime of violence.” For purposes of that provision,

the term “crime of violence” means 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). The charged “crime of violence” in this case was the Hobbs Act robbery in which the defendant brandished the firearm. For a Hobbs Act robbery,

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

18 U.S.C. § 1951(b)(1).

         In Johnson, the Supreme Court found unconstitutionally vague the italicized portion of the Armed Career Criminal Act that I quote below. Johnson, 135 S.Ct. at 2563. Under the Armed Career Criminal Act, a person with three prior violent felonies receives a sentence of no less than ...


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