United States District Court, D. Maine
ORDER AFFIRMING RECOMMENDED DECISION ON 28 U.S.C.
§ 2255 MOTION
A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE
Court concludes that the defendant committed a crime of
violence under either the force or residual clauses of 18
U.S.C. § 924(c).
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.
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).
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.
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
THE RECOMMENDED DECISION
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
Magistrate Judge discussed the definitions of “crime of
violence” under U.S.S.G. § 4B1.2(a) and under §
924(c). Id. at 4-5.
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.
OBJECTIONS TO THE RECOMMENDED DECISION
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.
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 ...