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Reeves v. United States

United States District Court, D. Maine

January 16, 2019

JOSEPH SCOTT REEVES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AFFIRMING RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE

         The Court concludes that the defendant committed a crime of violence under either the force or residual clauses of 18 U.S.C. § 924(c).

         I. BACKGROUND

         On June 15, 2005, Joseph Scott Reeves pleaded guilty to a three-count information: (1) Count One, being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)); (2) Count Two, engaging in a Hobbs Act Robbery (18 U.S.C. § 1951(a)); and (3) Count Three, use of a firearm during a federal crime of violence (18 U.S.C. § 924(c)). Information (ECF No. 3); Minute Entry (ECF No. 7). On July 17, 2006, Mr. Reeves was sentenced 120 months on Count One and 178 months on Count Two to run concurrently, and eighty-four months on Count Three to run consecutively to Count Two, for a total prison term of 262 months. J. at 2 (ECF No. 29). The Court required Mr. Reeves to pay restitution in the total amount of $1, 633.00, a special assessment of $300.00 and a fine of $1, 000.00. Id. at 5. Upon release from prison, the Court ordered supervised release for terms of three years on Counts 1 and 2, and five years on Count 3, with all supervised release terms to run concurrently. Id. at 3. Mr. Reeves did not appeal his conviction or his sentence.

         On January 29, 2016, Mr. Reeves filed a § 2255 motion to vacate his sentence or to resentence in him in light of the United States Supreme Court case Johnson v. United States, 35 S.Ct. 2551 (2015) (Johnson II). Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 43). On February 11, 2016, the Court appointed counsel to represent Mr. Reeves on his § 2255 motion. Order Appointing Counsel (ECF No. 46). On June 21, 2016, Mr. Reeves filed an amended § 2255 motion. Def.'s Am. Mot. to Correct Sentence Under 28 U.S.C. § 2255 (ECF No. 55) (Pet'r's Am. Mot.). On July 5, 2016, the Government filed a Motion to Stay, Mot. to Stay (ECF No. 56), which was granted the next day. Order on Mot. to Stay (ECF No. 57). On April 25, 2018, the stay was lifted, and the Government was ordered to respond to Mr. Reeves' amended motion. Order (ECF No. 63).

         On July 6, 2018, the Government filed its response to Mr. Reeves' amended § 2255 motion, Gov.'s Resp. in Opp'n to Mot. to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 69) (Gov.'s Opp'n), and on July 24, 2018, Mr. Reeves filed his reply. Def.'s Reply to Gov.'s Resp. Opposing 28 U.S.C. § 2255 Pet. (ECF No. 70) (Pet'r's Reply). In his reply, Mr. Reeves conceded that the United States Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017), rendered not viable his argument against the Court's conclusion that his two prior felony convictions qualified as predicate convictions under the career offender provision of the of the United States Sentencing Guidelines, U.S.S.G. § 4B1.1(a)(3). Pet'r's Reply at 3.

         Mr. Reeves had another argument against the sentence under Johnson II. He contended that Johnson “calls into question Reeves' 924(c) conviction which can only apply if the firearm was possessed during a crime of violence.” Pet'r's Am. Mot. at 1-2. In Mr. Reeves' view, “Hobbs Act Robbery is not a categorical crime of violence.” Id. at 5.

         II. THE RECOMMENDED DECISION

         Before the Magistrate Judge was whether a Hobbs Act robbery qualifies as a “crime of violence” under 18 U.S.C. § 924(c), and thus whether it could appropriately be considered a crime of violence under U.S.S.G. §§ 4B1.1(a)(2), 4B1.2(a). Recommended Decision on 28 U.S.C. § 2255 Mot., at 4 (ECF No. 71) (Recommended Decision). The Magistrate Judge noted that under U.S.S.G. § 4B1.1(a), one is a career offender if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

         The Magistrate Judge discussed the definitions of “crime of violence” under U.S.S.G. § 4B1.2(a)[1] and under § 924(c).[2] Id. at 4-5.

         The Magistrate Judge analyzed United States v. García-Ortiz, 904 F.3d 102, 106 (1st Cir. 2018), where the First Circuit Court of Appeals concluded that “any possible infirmity of section 924(c)'s residual clause provides García with no exculpation because his Hobbs Act robbery still qualifies as a crime of violence under the force clause of section 924(c).” Recommended Decision at 5-6. In light of this decision, the Magistrate Judge concluded that Mr. Reeves' “Hobbs Act robbery is considered a crime of violence under section 924(c)(3)(A).” Id. at 6. Accordingly, the Magistrate Judge recommended that the Court deny Mr. Reeves' § 2255 motion, that no evidentiary hearing was warranted under Rule 8 of the Rules Governing Section 2255 cases, and that the Court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 cases. Id.

         III. OBJECTIONS TO THE RECOMMENDED DECISION

         Acting pro se, Mr. Reeves filed an objection to the Magistrate Judge's Recommended Decision on October 29, 2018. Pet'r's Obj. to the Magistrate Judge's Recommended Decision on 28 U.S.C. [§] 2255 Mot. (ECF No. 72) (Pet'r's Obj.). Mr. Reeves argues that an evidentiary hearing and a certificate of appealability are both warranted because the status of the § 924(c)'s force clause “remains an open question” and “reasonable jurists” may come to different conclusions on whether it is constitutional. Id. at 1-2. He claims his § 2255 motion should not be denied because there are two relevant cases pending before the United States Supreme Court: United States v. Davis, 903 F.3d 483 (5th Cir. 2018), cert. granted, 2019 WL 98544 (U.S. Jan. 4, 2019) (No. 18-431) and United States v. Salas, 889 F.3d 681 (10th Cir. 2018), petition for cert. filed, (U.S. Oct. 3, 2018) (No. 18-428). Id. Mr. Reeves says, at minimum, the Court should hold in abeyance any decision on his motion pending the resolution of these two cases. Id. at 2.

         Mr. Reeves claims that there is a circuit split as to the constitutionality of § 924(c)'s force clause. Id. at 2. He avers that “for the most part, the grounds for [these] decisions apply equally to Section 16(b)[, ] and mirror the distinctions between the ACCA's residual clause and Section 16(b) that were rejected by [Sessions v.] Dimaya, [138 S.Ct. 1204 (2018);] therefore, the reasons ...


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