United States District Court, D. Maine
AMENDED ORDER ON MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Brock Hornby, United States District Judge.
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.
and Procedural Background
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.
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
(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
[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).
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