Allen v. United States

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:16-cv-00379-MOC

(CRIMINAL CASE NO. 3:10-cr-00088-MOC-1)

ANTHONY MARKEE ALLEN, )

)

Petitioner, )

)

vs. ) ORDER

)

UNITED STATES OF AMERICA, )

)

Respondent. )

____________________________________)

THIS MATTER is before the Court on the Petitioner’s Motion to Vacate Sentence under

28 U.S.C. § 2255 [CV Doc. 1]1 and the Government’s Motion to Dismiss Petitioner’s Motion to

Vacate [CV Doc. 10]. The Petitioner is represented by Joshua Carpenter and Caryn Devins

Strickland of the Federal Defenders of Western North Carolina.

I. BACKGROUND

On May 18, 2010, Petitioner Anthony Markee Allen (“Petitioner”) was charged in a Bill

of Indictment with one count of aiding and abetting Hobbs Act robbery in violation of 18 U.S.C.

§§ 1951 and 2 (Count One); one count of conspiracy to use or carry a firearm in furtherance of a

crime of violence, that is, the Hobbs Act robbery charged in Count One, in violation of 18 U.S.C.

§ 1951 (Count Two); and one count of aiding and abetting the use and carrying of firearms in

furtherance of a crime of violence, that is, the robbery charged in Count One, in violation of 18

U.S.C. §§ 924(c) and 924(c)(1)(A)(iii) (Count Three). [CR Doc. 3: Bill of Indictment].

1 Citations to the record herein contain the relevant document number referenced preceded by either the

letters “CV,” denoting that the document is listed on the docket in the civil case file number 3:16-cv-00379-

MOC, or the letters “CR,” denoting that the document is listed on the docket in the criminal case file number

3:10-cr-00088-MOC-1.

Petitioner agreed to plead guilty to Counts One and Three as charged in the Indictment and

the Government agreed to dismiss Count Two. [CR Doc. 27 at 1: Plea Agreement]. On November

10, 2010, Petitioner pleaded guilty in accordance with the plea agreement. [CR Doc. 33: Entry

and Acceptance of Guilty Plea]. Before Petitioner’s sentencing, a probation officer prepared a

Presentence Investigation Report (PSR). [CR Doc. 47: PSR]. The probation officer found

Petitioner’s Criminal History Category to be III and his Total Offense Level to be 17, yielding a

guidelines range for imprisonment of 30 to 37 months, followed by a mandatory minimum

consecutive sentence of 120 months, 18 U.S.C. § 924(c)(1)(A)(iii). [Id. at ¶¶ 24, 33, 49, 50].

Petitioner’s sentencing hearing was held on June 7, 2011. The Court sentenced Petitioner to 37

months on Count One and 120 months on Count Three, to be served consecutively to the term

imposed for One, for a total term of imprisonment of 157 months. [CR Doc. 56 at 2: Judgment].

Judgment on this conviction was entered on June 17, 2011. [Id.]. Petitioner did not directly appeal

his conviction.

On June 17, 2016, Petitioner filed a Motion to Vacate Sentence under 28 U.S.C. § 2255,

arguing that his conviction under 18 U.S.C. § 924(c) is invalid under Johnson v. United States,

135 S. Ct. 2551 (2015). [CV Doc. 1]. The Court conducted an initial screening of Petitioner’s

motion and ordered the Government to respond. [CV Doc. 2]. Upon the request of the

Government, this matter was stayed pending the Fourth Circuit’s decision in United States v. Ali,

No. 15-4433. [CV Docs. 3, 4]. The Fourth Circuit then ordered that Ali would be held in abeyance

pending the Supreme Court’s decision in United States v. Davis, No. 18-431. The Supreme Court

decided Davis on June 24, 2019. The Court then ordered the parties to show cause why the stay

in the matter should not be lifted and the Government ordered to respond. [CV Doc. 7]. The

Government agreed the stay should be lifted, [CV Doc. 8], and timely filed a motion to dismiss

Petitioner’s § 2255 motion to vacate. [CV Doc. 10]. The Petitioner responded to the Government’s

motion. [Doc. 11]. This matter is now ripe for disposition.

II. STANDARD OF REVIEW

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to

promptly examine motions to vacate, along with “any attached exhibits and the record of prior

proceedings” in order to determine whether the petitioner is entitled to any relief on the claims set

forth therein. After examining the record in this matter, the Court finds that the motion to vacate

can be resolved without an evidentiary hearing based on the record and governing case law. See

Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

III. DISCUSSION

Under 28 U.S.C. § 2255, a petitioner is entitled to relief when his original sentence “was

imposed in violation of the Constitution or laws of the United States, or [when] the court was

without jurisdiction to impose such sentence.” 28 U.S.C. § 2255(a). The Petitioner argues he is

entitled to relief on these grounds because, under Johnson, his § 924(c) conviction on Count Three

was imposed in violation of the Constitution and laws of the United States. [CV Doc. 1 at 1-2].

Petitioner specifically argues that his “§ 924(c) conviction for using a firearm in relation to a ‘crime

of violence’ is void because the predicate offense of Hobbs Act robbery does not qualify as a

‘crime of violence’ in light of Johnson.” [Id. at 2].

In Johnson, the Supreme Court struck down the Armed Career Criminal Act’s (ACCA)

residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), as unconstitutionally vague and held that enhancing

a sentence under the ACCA’s residual clause violates due process. Johnson, 135 S. Ct. at 2563.

The ACCA residual clause defined a “violent felony” to include any crime punishable by a term

of imprisonment exceeding one year that “otherwise involves conduct that presents a serious

potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Accordingly, under

Johnson, a defendant who was sentenced to a statutory mandatory minimum term of imprisonment

based on a prior conviction that satisfies only the residual clause of the “violent felony” definition

is entitled to relief from his sentence. The Supreme Court has held that Johnson applies

retroactively to claims asserted on collateral review. Welch v. United States, 136 S. Ct. 1257,

1265 (2016).

Petitioner argues his § 924(c) conviction is invalid under Johnson. Section 924(c)

criminalizes the use of a firearm in furtherance of a “crime of violence.” Under § 924(c), a crime

is one of violence if it either “has an element the use, attempted use, or threatened use of physical

force against the person or property of another,” (the “force clause”) or “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” (the “residual clause”). 18 U.S.C. § 924(c)(3)(B).

In short, Petitioner argues that because § 924(c)’s residual clause “is functionally

indistinguishable from the ACCA’s residual clause,” which was found to be unconstitutionally

vague, Petitioner’s conviction for aiding and abetting Hobbs Act robbery can qualify as § 924(c)

“crimes of violence” only under the force clause.2 [CV Doc. 1 at 3-4]. Three years after the

Petitioner filed his motion to vacate, the Supreme Court decided United States v. Davis, 139 S. Ct.

2319 (2019). In Davis, the Supreme Court specifically held the residual clause of § 924(c)’s

definition of “crime of violence” is “unconstitutionally vague.” 139 S. Ct. at 2336. As such,

Petitioner’s conviction on Count Three is only valid if aiding and abetting Hobbs Act robbery

2 In his Section 2255 motion to vacate, Petitioner refers to the predicate crime of violence as Hobbs Act

robbery, not aiding and abetting Hobbs Act robbery. [See CV Doc. 1]. It is not until Petitioner’s response

to the Government’s motion to dismiss that Petitioner argues the predicate crime of violence is aiding and

abetting Hobbs Act robbery. [See CV Doc. 11]. Because Count One of the Indictment clearly charges

aiding and abetting Hobbs Act robbery and because the outcome is the same regardless, the Court’s decision

is based on an aiding and abetting Hobbs Act robbery predicate crime of violence.

qualifies as a “crime of violence” under § 924(c)’s force clause.

Petitioner argues that aiding and abetting Hobbs Act robbery is not a “crime of violence”

“because, like a conspiracy [to commit Hobbs Act robbery], it does not ‘invariably require the

actual, attempted, or threatened use of force.’” [Doc. 11 at 2 (quoting Simms, 914 F.3d at 233-

34)]. This argument, however, is legally unsupported.

Aiding and abetting is not itself a federal offense, but merely “describes the way in which

a defendant's conduct resulted in the violation of a particular law.” United States v. Ashley, 606

F.3d 135, 143 (4th Cir. 2010); see 18 U.S.C. § 2(a) (providing that “[w]hoever commits an offense

against the United States or aids, abets, counsels, commands, induces or procures its commission,

is punishable as a principal”). United States v. Barefoot, 754 F.3d 226, 239 (4th Cir. 2014); United

States v. Jaensch, 665 F.3d 83, 96 (4th Cir. 2011) (“Under 18 U.S.C. § 2(b), individuals who aid,

abet, command, or induce a crime are punishable as principals.”).

“Because an aider and abettor is responsible for the acts of the principal as a matter of law,

an aider and abettor of a Hobbs Act robbery necessarily commits all of the elements of a principal

Hobbs Act robbery.” In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016). Recently, the Fourth

Circuit concluded that “Hobbs Act robbery constitutes a crime of violence under the force clause

of Section 924(c).” United States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019). Aiding and

abetting Hobbs Act robbery, therefore, also qualifies as a crime of violence under the force clause

of Section 924(c). In re Colon, 826 F.3d at 1305; United States v. Grissom, 760 Fed. App’x 448,

454 (7th Cir. 2019) (holding that, because aiding and abetting is an alternative theory of liability

for an offense, one who aided and abetted a Hobbs Act robbery still committed a predicate crime

of violence under § 924(c)); United States v. McKelvey, 773 Fed. App’x 74, 75 (3d Cir. 2019)

(same). See also United States v. Steward, 2019 WL 6875294, *1 (4th Cir. Dec. 17, 2019) (citing

Mathis for the proposition that aiding and abetting Hobbs Act robbery is a crime of violence). As

such, Petitioner’s § 924(c) conviction predicated on aiding and abetting Hobbs Act robbery is

valid.

The Court will, therefore, grant the Government’s motion to dismiss Petitioner’s Section

2255 Motion to Vacate.

IV. CONCLUSION

Having concluded that Petitioner’s conviction under § 924(c) is valid, the Court will grant

the Government’s motion to dismiss.

IT IS, THEREFORE ORDERED that:

(1) Petitioner’s Section 2255 Motion to Vacate, Set Aside, or Correct Sentence [Doc. 1] is

DENIED and DISMISSED.

(2) The Government’s Motion to Dismiss Petitioner’s Motion to Vacate [Doc. 10] is

GRANTED.

(3) IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of

appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338

(2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims debatable

or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when relief is denied on

procedural grounds, a petitioner must establish both that the dispositive procedural

ruling is debatable and that the petition states a debatable claim of the denial of a

constitutional right).

IT IS SO ORDERED.

March 4, 2020

orien.

Max O. Cogburn if

United States District Judge Boa gael