Watson v. United States

          ORDER ON MOTION TO SUPPLEMENT/ RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          JOHN C. NIVISON, U.S. MAGISTRATE JUDGE

         In this action, Petitioner Xavier Watson moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 276.) Petitioner also filed a motion to supplement.^[1] (Motion to Supplement, ECF No. 279.)

         In 2017, following a guilty plea, Petitioner was convicted of Hobbs Act robbery and aiding and abetting the brandishing of a firearm in furtherance of a crime of violence. (Judgment, ECF No. 177 at 1.) Pursuant to an amended judgment, Petitioner was sentenced to a total prison term of 115 months. (Amended Judgment, ECF No. 264 at 2.) Petitioner did not appeal from the conviction or the sentence.

         Petitioner contends, pursuant to Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), and Sessions v. Dimaya, ___ U.S. ___, 138 S.Ct. 1204 (2018), that his conviction should be vacated; he also asserts a related claim of ineffective assistance. (Motion at 2-3.)

         I grant the motion to supplement. Following a review of Petitioner's section 2255 motion, the Government's request for dismissal, and the record, I recommend the Court grant the Government's request to dismiss Petitioner's section 2255 motion.

         I. Factual Background and Procedural History

         In May 2017, Petitioner was convicted of Hobbs Act robbery, 18 U.S.C. § 1951(a) (Count 2); and aiding and abetting the brandishing of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c) (Count 3); the Court sentenced Petitioner to prison terms of 37 months on Count 2 and to 84 months on Count 3, to be served consecutively, for a total term of 121 months.^[2] (Judgment at 1-2.)

         In February 2018, the Court amended the sentence on Count 3 from 84 months to 78 months (still to be served consecutively); after the amendment, the total prison term was 115 months. (Id.; Amended Judgment at 1-2.) Petitioner did not appeal from the conviction or the sentence.

         Petitioner filed his motion on May 14, 2018, which was within the one-year limitation period under section 2255(f)(1). (Motion at 1.)

         II. Discussion

         In Johnson, the statute at issue was the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA), which imposes a 15-year mandatory minimum prison term when a defendant is convicted of a violation of 18 U.S.C. § 922(g) and has three previous convictions, committed on separate occasions, “for a violent felony or a serious drug offense, or both.” 135 S.Ct. at 2555-57. Section 924(e)(2)(B) defines the term “violent felony” and provides:

[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, . . . that-

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of ...