Lamons v. United States

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-24135-CV-SEITZ

(03-20906-CR-SEITZ)

ROBERT CHARLES LAMONS,

Movant,

v.

UNITED STATES OF AMERICA,

Respondent.

_____________________________/

ORDER DENYING MOTION TO VACATE

THIS CAUSE is before the Court on Movant’s pro se Motion to Vacate

pursuant to 28 U.S.C. § 2255. [DE 1]. Movant attacks the constitutionality of his

convictions and sentences for Possession of a Firearm in Furtherance of a Crime of

Violence, in violation of 18 U.S.C. § 924(c) and Conspiracy to Use and Carry a

Firearm in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(o). [DE

1 at 4]. Movant’s convictions were entered following a guilty plea, in Case No. 03-

20906-CR-SEITZ. [CR-DE 18].1

1 Citations to “[DE]” refer to docket entries in this federal habeas case, Case No. 19-24135-CV-

SEITZ. Citations to “[CR-DE]” refer to docket entries in Movant’s underlying criminal case, Case

No. 03-20906-CR-SEITZ. Citations to [CV1-DE] refer to docket entries in civil Case No. 17-

21538-CV-SEITZ.

Movant brings this action in light of United States v. Davis, 588 U.S. ___, 139

S. Ct. 2319 (2019), claiming that his § 924(o) conviction and § 924(c) convictions

he pled to in Counts 2, 4, 6, and 8 each relied on 924(c)(3)(B)’s invalidated residual

clause. [DE 1 at 4]. However, Movant’s three § 924(c) convictions were alternatively

based on substantive Hobbs Act Robbery charges, and Movant’s § 924(o) conviction

rested solely on substantive Hobbs Act Robbery [CR-DE 1, 11, 12], which qualifies

post-Davis under the unaffected elements clause of § 924(c)(3)(A) as a crime of

violence.

Accordingly, after careful consideration of Movant’s Motion [DE 1], the

Government’s Response to the Court’s Order to Show Cause [DE 8], Movant’s

Reply [DE 9], and review of the record in the underlying criminal case, the Court

must DENY the Motion because, as will be discussed below, Movant’s § 924(c)

convictions were alternatively predicated on crimes of violence and Movant’s §

924(o) conviction was solely predicated on crimes of violence.

I. Pertinent Procedural Background

On January 21, 2004, at the conclusion of a plea colloquy, Movant pleaded

guilty to (Count 1) Conspiracy to Commit Hobbs Act robbery under 18 U.S.C. §

1951(a); (Count 2) Conspiracy to Use and Carry a Firearm in Relation to a Crime

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of Violence under 18 U.S.C. § 924(o)2; (Counts 3, 5, & 7) Hobbs Act Robbery

under 18 U.S.C. § 1951(a); and (Counts 4, 6, & 8) Possession of a Firearm in

Furtherance of a Crime of Violence under 18 U.S.C. § 924(c)(1)(A).3 [CR-DE 10].

Movant also signed a plea agreement and a sworn factual proffer. [CR-DE

11, 12]. In the sworn factual proffer, Movant stipulated to the following facts:

On October 2, 2001, two masked men robbed a Brinks guard of

$585,000 as he tried to deliver the money to a First Union Bank on

167th Avenue Miami-Dade County. When the guard entered the

bank, one of the robbers restrained the guard, and the other robber

took the bag full of money. Both men were armed. The men fled from

the scene in a stolen car that was driven by Robert Lamons. This car

was later found burning several miles from the bank. Approximately

$585,000 was lost in the robbery.

On June 12, 2002, two armed men robbed another Brinks guard of

$285,000 while he was delivering money to a Washington Mutual on

NW 7th Avenue. Again, one of the robbers restrained the guard,

taking his gun, while another robber took the money satchel. The men

fled in a stolen car that was driven by Lamons, who was acting as a

lookout at the time. Lamons was armed with a Glock handgun. This

car was later found ablaze several miles away. Approximately

$285,000 was lost in this robbery. Lamons received between $60,000

and $80,000 of the money.

On November 20, 2002, Lamons, who was armed with a Glock

handgun, and another armed man approached another Brinks guard

from behind as he entered a Wachovia bank on Ives Dairy Road to

deliver money. The guard saw the robbers before they were able to

restrain him and began to flee. The robbers quickly caught up to him

2 Count 2 was predicated on Counts 3, 5, & 7. [CR-DE 1 at 1-2].

3 Count 4 was based on Counts 1 and 3. [CR-DE 1 at 3]. Count 6 rested on Counts 1 and 5. [Id. at

3-4]. Count 8 was predicated on Counts 1 and 7. [Id. at 4-5].

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and the other robber then struck the guard in the head with the butt of

his handgun. As he did, the robber’s gun went off, grazing the guard.

The getaway car was later found ablaze several miles away.

Approximately $229,000 was lost in this robbery. Lamons received

between approximately $40,000 to $50,000 in the robbery.

In a post Miranda statement, Lamons admitted that he conspired with

Michael McCarthy, Terrence Brown and Ishameal Paul to carry out

each of the three armed robberies described above. He further

admitted that during each of the three robberies, the robbers were

armed with handguns and that was part of their plan to overpower the

guards and steal the money. Additionally, some or all of the robbers

wore bulletproof vests for protection. Lamons further stated that, in

the November 2002 robbery, McCarthy’s gun discharged accidently

when the guard reached for his handgun. In in all of the robberies the

guns were brandished at the guards so that they would not resist when

the money was taken from them.

[CR-DE 11].

On May 21, 2004, the District Court Judge sentenced Movant to a total of

852 months’ imprisonment [CR-DE 17], and Judgment was entered. [CR-DE 18].

On March 6, 2006, Respondent filed a Motion for a Reduction of Sentence

pursuant to Rule 35 of the Federal Rules of Criminal Procedure. [CR-DE 31].

During a re-sentencing hearing held on April 19, 2006, Movant was re-sentenced

to a total of 426 months’ imprisonment. [CR-DE 37]. Specifically, Movant was

sentenced to 84 months’ imprisonment as to Counts 1 through 3, Count 5, and

Count 7, to run concurrent with each other; 42 months’ imprisonment as to Count

4, to run consecutive to Counts 1 through 3, Count 5, and Count 7; 150 months’

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imprisonment as to Count 6 to run consecutive to Count 4; and 150 months’

imprisonment as to Count 8 to run consecutively to Count 6. [Id.].

On April 24, 2017, Movant filed “correspondence” requesting that two of his

§ 924(c) sentences be vacated on equitable grounds in Case No. 17-21538-CV-

SEITZ. [CV1-DE 1]. On June 16, 2017, Movant’s filing was dismissed without

prejudice. [CV1-DE 8].4

On October 4, 2019, Movant filed the instant pro se Motion to Vacate

pursuant to 18 U.S.C. § 2255. [DE 1].

II. Timeliness of the Motion to Vacate

Respondent correctly concedes that the instant motion [DE 1] is timely,

pursuant to 28 U.S.C. § 2255(f)(3), because the effective date of filing is within one

year of the Supreme Court’s retroactively applicable decision in Davis. See, e.g.,

Berry v. United States, 468 F. App’x 924, 925 (11th Cir. 2012) (per curiam) (quoting

28 U.S.C. § 2255(f)(3)).

4 On August 29, 2019, Movant filed an application for leave to file a second or successive motion

to vacate sentence in the Eleventh Circuit Court of Appeals. In re: Robert Lamons, Emergency

Application, No. 19-13360 (11th Cir. Aug. 29, 2019). The Eleventh Circuit held that, because

Movant’s correspondence was dismissed without prejudice in Case No. 17-21538-CV-SEITZ,

his proposed § 2555 motion was not second or successive within the meaning of the statute. See

In re: Lamons, 2019 U.S. App. LEXIS 28871 *3 (11th Cir. Sept. 24, 2019).

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III. Standard of Review

A prisoner in custody under sentence of a federal court may move the court

which imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. §

2255(a). Because collateral review is not a substitute for direct appeal, the grounds

for collateral attack on final judgments pursuant to § 2255 are extremely limited. A

prisoner is entitled to relief under § 2255 if the court imposed a sentence that (1)

violated the Constitution or laws of the United States, (2) exceeded its jurisdiction,

(3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral

attack. See 28 U.S.C. § 2255(a); see also McKay v. United States, 657 F.3d 1190,

1194 n.8 (11th Cir. 2011).

“Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional

rights and for that narrow compass of other injury that could not have been raised in

direct appeal and would, if condoned, result in a complete miscarriage of justice.”

Lynn v. United States, 365 F.3d 1225, 1232-33 (11th Cir. 2004) (citations and

internal quotations omitted). If a court finds a claim under § 2255 to be valid, the

court shall vacate and set the judgment aside and shall discharge the prisoner or

resentence him or grant a new trial or correct the sentence as appropriate. 28 U.S.C.

§ 2255(b).

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IV. Movant’s Claims

In summary, Movant contends that his three § 924(c) convictions and § 924(o)

conviction were the result of an unconstitutionally vague statute in light of Davis.

[DE 1].

In Movant’s Motion to Vacate, he claims that the § 924(c) charges in Count

4, 6, and 8, were each predicated on the Hobbs Act conspiracy in Count 1, and the

Hobbs Act robberies in Counts 3, 5, and 7, respectively. [DE 1 at 4]. Specifically,

he claims that the § 924(o) conviction in Count 2 and the § 924(c) convictions in

Counts 4, 6, and 8, each relied on § 924(c)(3)(B)’s invalidated residual clause. [Id.].

He appears to claim that the § 924(o) conviction was predicated on conspiracy to

use and carry a firearm during and in relation to a crime of violence in Count 1, and

the other three § 924(c) Counts were predicated in part on the conspiracy to commit

Hobbs Act robbery offense in Count 1, which does not qualify as a crime of violence

under § 924(c)(3)(A)’s element clause. [Id.].

Respondent asserts, instead, that Movant’s argument fails on the merits since

his § 924(c) convictions were alternatively predicated on the substantive Hobbs Act

robberies—which qualifies post-Davis under the unaffected elements clause of §

924(c)(3)(A) as a crime of violence. [DE 8 at 1]; [CR-DE 1, 11, 12]. Further,

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Movant’s § 924(o) conviction was solely predicated on the substantive Hobbs Act

Robberies. [CR-DE 1, 11, 12].

In Movant’s Reply,5 he argues that as an initial matter, the government’s

assessment does not include whether the Hobbs Act is vulnerable to a Mathis v.

United States6 type analysis in the wake of Johnson,7 Dimaya,8 and United States v.

Davis. [DE 9 at 1]. Specifically, Movant asserts that, because the Information as to

each § 924(c) count alleges Count 1 (Conspiracy to Commit Hobbs Act Robbery) as

the predicate for the § 924(c) convictions in part, his § 924(c) convictions are invalid

under Davis. [Id. at 7].

Movant also asserts that each count, alternatively rests on substantive

Interference with commerce by robbery as the predicate offense. [Id.]. In

conjunction, he asserts that reasonable jurists would find that Interference with

commerce by threats or violence is not categorically a crime of violence under the

elements clause of § 924(c)(3) because the offense can be committed by way of

5 Movant’s Reply is titled, “Pro-Se Petitioner’s Response in Opposition to the Government’s

Answer and Memorandum of Fact and Law in Opposition to the Motion to Vacate Sentence

pursuant to § 2255.” [DE 9].

6 Mathis v. United States, 136 S. Ct. 2243 (2016).

7 Johnson v. United States, 135 S. Ct. 2551 (2015).

8 Sessions v. Dimaya, 138 S. Ct. 1204 (2017).

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which does not require “physical force” within the meaning of § 924(c)(3). [Id.]. In

essence, Movant contends that a Hobbs Act Robbery can be committed in a non-

violent way, and, therefore, should not be considered a crime of violence under

§ 924(c)(3). [Id. at 8-9].

However, as discussed below, Movant’s arguments are without merit.

V. Discussion

As an introductory matter, 18 U.S.C. § 924(c) provides for separate, additional

consequences if a person uses or carries a firearm during and in relation to a crime

of violence or possesses a firearm in furtherance of such crimes. See 18 U.S.C.

§ 924(c)(1)(A). The term “crime of violence” is later defined in two subparts,

§ 924(c)(3)(A), colloquially known as the “elements clause,” and § 924(c)(3)(B), the

“residual clause.”

On June 24, 2019, the Supreme Court of the United States in Davis held that

the residual clause, § 924(c)(3)(B), was unconstitutionally vague. See Davis, 139 S.

Ct. at 2336. However, Davis left intact the § 924(c)(3)(A) “elements clause.” See id.

Here, Movant pleaded guilty to three counts of substantive Hobbs Act robbery

(Counts 3, 5, & 7), to three counts of Brandishing a Firearm in Furtherance of a

Crime of Violence (Counts 4, 6, & 8), and to Conspiracy to Use and Carry a Firearm

in relation to a Crime of Violence (Count 1). [CR-DE 1, 11, 12, 18, 37].

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“A federal prisoner raising a Davis claim cannot show that he was sentenced

under § 924(c)’s residual clause if current binding precedent clearly establishes his

predicate offense qualifies as a crime of violence under the elements

clause.” Levatte v. United States, No. 16-17685, 2020 WL 823889, at *1 (11th Cir.

Feb. 19, 2020) (citing In re Pollard, 931 F.3d 1318, 1321 (11th Cir. 2019)).

Notably, conspiracy to commit Hobbs Act robbery is not a crime of violence

under the elements clause. See Brown v. United States, 942 F.3d 1069, 1075 (11th

Cir. 2019). However, Hobbs Act robbery is a “crime of violence” under the

“elements clause” of § 924(c)(3)(A). See United States v. St. Hubert, 909 F.3d 335,

351-53 (11th Cir. 2018).

Each of Movant’s § 924(c) convictions (Counts 4, 6, & 8) were predicated

on his convictions for conspiracy to commit Hobbs Act robbery (Count 1) and for

the commission of three substantive Hobbs Act robberies (Counts 3, 5, & 7). [CR-

DE 1, 11, 12]. His § 924(o) conviction was solely predicated on his convictions

for the commission of the three substantive Hobbs Act robberies (Counts 3, 5, &

7). [Id.].

Accordingly, Movant cannot meet his burden of showing that his § 924(c)

convictions resulted solely from its invalidated residual clause. The Information

makes clear that these convictions were also predicated on three substantive Hobbs

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Act robbery offenses. [CR-DE 1]. Further, Movant cannot meet his burden of

showing that his § 924(o) conviction resulted from § 924(c)’s invalidated residual

clause. The Information makes clear that this conviction was predicated solely on

the three substantive Hobbs Act robbery offenses. [CR-DE 1]. Accordingly,

Movant’s challenge to his § 924(c) convictions and § 924(o) conviction fails.

Further, this case is comparable to a recent Eleventh Circuit Case, In Re

Clark, No. 19-14569, 2019 U.S. App. LEXIS 37053 (11th Cir. Dec. 13, 2019). In

Clarke, movant pled guilty to a superseding indictment, charging him with (1)

conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), (2)

Hobbs Act robbery in violation of 18 U.S.C. §§ 1951(a) and 2, and (3) the use of a

firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). Id.

The superseding indictment predicated Clarke’s § 924(c) count on the conspiracy

to commit Hobbs Act Robbery and the substantive Hobbs Act robbery. Id.

Ultimately, the Eleventh Circuit found that Clarke’s § 924(c) conviction was

independently supported by the substantive Hobbs Act robbery. Id. at *4-5. As a

result, the Eleventh Circuit held that Clarke could not benefit from the rule

announced in Davis, and the Court denied Clarke’s motion because he could not

establish a prima facie showing that he would be entitled to relief. Id. at *5-6.

Here, as in Clarke, Movant’s plea to the substantive Hobbs Act robberies

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and his factual proffer independently support his § 924(c) convictions and § 924(o)

conviction. [CR-DE 11, 12]. In Movant’s factual proffer, he stipulated to the facts

of the Hobbs Act robberies and that some or all of the robbers were armed during

the robberies. [CR-DE 11]. Further, the Information predicated his § 924(c) counts

on both the conspiracy to commit Hobbs Act robbery and the substantive Hobbs

Act robberies, and the § 924(o) conviction was predicated solely on the Hobbs Act

robberies. [CR-DE 1].

Because the substantive Hobbs Act robberies independently support Movant’s

§ 924(c) convictions and because Movant’s § 924(o) conviction is solely predicated

on the substantive Hobbs Act robberies, Movant is not entitled to relief under Davis.

Therefore, the Motion is denied on the merits.

VI. Evidentiary Hearing

Movant has the burden of establishing the need for an evidentiary hearing,

and he would only be entitled to a hearing if his allegations, if proved, would

establish his right to collateral relief. See Diveroli v. United States, 803 F.3d 1258,

1263 (11th Cir. 2015).

However, district courts “need not hold a hearing if the allegations are

‘patently frivolous,’ based upon ‘unsupported generalizations,’ or ‘affirmatively

contradicted by the record.’” Diveroli, 803 F.3d at 1263 (relying upon Winthrop-

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Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014)); see also Cf. Schriro

v. Landrigan, 550 U.S. 465, 473-75 (2007) (holding that if the record refutes the

factual allegations or otherwise precludes habeas relief, a district court is not

required to hold an evidentiary hearing in a § 2254 context).

Here, Movant cannot show an evidentiary hearing would prove he is entitled

to relief because there are no facts in dispute. Movant pleaded guilty and agreed to

the factual proffer, which established the undisputed facts. Thus, he is not entitled to

an evidentiary hearing.

VII. Certificate of Appealability

A prisoner seeking to appeal a district court’s final order denying his petition

for writ of habeas corpus [or motion to vacate] has no absolute entitlement to appeal,

but must first obtain a certificate of appealability (“COA”). See 28 U.S.C. § 2253

(c)(1); see also Harbison v. Bell, 556 U.S. 180, 183 (2009). This Court should issue

a certificate of appealability only if the prisoner makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. §2253 (c)(2). Furthermore, to merit a

certificate of appealability, prisoners must show that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong. See

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Eagle v. Linahan, 279 F.3d

926, 935-36 (11th Cir. 2001).

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In this case, there is no basis to issue a certificate of appealability. Therefore,

it is denied.

For the reasons discussed above, it is hereby

ORDERED that:

(1) Movant’s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct

Sentence [DE 1] is DENIED;

(2) No certificate of appealability shall issue;

(3) To the extent not otherwise disposed of, all pending motions are DENIED

AS MOOT; and

(4) The Clerk of Court is directed to CLOSE this case.

DONE AND ORDERED at Miami, Florida, on September, 1, 2020.

2 4 , °

PATRICIA A. SEITZ

UNITED STATES DISTRICT JUDGE

cc: Robert Charles Lamons

63391-004

Bennetts ville

Federal Correctional Institution

Inmate Mail/Parcels

Post Office Box 52020

Bennettsville, SC 29512

PRO SE

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T Haggerty

United States Attorney’s Office

99 NE 4th Street

Miami, FL 33132

Email: Thomas.haggerty@usdoj.gov

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