holding that fear of economic loss is sufficient to support a conviction for Hobbs Act extortion
How later courts described this case
- holding that fear of economic loss is sufficient to support a conviction for Hobbs Act extortion
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:23-cv-905-RJC
(3:06-cr-80-RJC-SCR-1)
LLORD CAMERON DIGGS, )
)
Petitioner, )
)
vs. ) ORDER
)
UNITED STATES OF AMERICA, )
)
Respondent. )
_________________________________________ )
THIS MATTER is before the Court on Petitioner’s Motion to Vacate, Set Aside or Correct
Sentence under 28 U.S.C. § 2255 [Doc. 2].
I. BACKGROUND
Petitioner was charged by Bill of Information1 with a single count of discharging a firearm
in furtherance of a crime of violence, i.e., a violation of 18 U.S.C. § 1951 and aiding and abetting
the same in violation of 18 U.S.C. §§ 924(c) and 2. [3:06-cr-80 (“CR”) Doc. 1]. Petitioner pleaded
guilty. [CR Doc. 2] (Plea Agreement). The Presentence Investigation Report (“PSR”) reflects that
the underlying Hobbs Act offense involved a series of acts that Petitioner and others undertook to
“harass and intimidate” the owners of a store. [CR Doc. 23 at ¶¶ 5-23].
On September 4, 2007, the Court sentenced him to 108 months’ imprisonment followed by
five years of supervised release. [CR Doc. 11] (Judgment). Petitioner did not appeal.
Petitioner began serving his term of supervised release in March 2022, after completing a
1 Petitioner waived indictment. [CR Doc. 5].
concurrent 20-year state sentence. [CR Doc. 14]. On November 17, 2022, the Government filed a
Petition for Warrant for Offender Under Supervision, alleging that Petitioner committed a new law
violation.2 [Id.]. A magistrate judge entered an Order of Detention on November 29, 2022 [CR
Doc. 19],3 and the revocation proceeding remains pending.
Petitioner filed the instant § 2255 Motion to Vacate through counsel on December 29,
2023. [Doc. 2]. He argues that the § 924(c) conviction should be vacated because Hobbs Act
extortion is not a valid predicate “crime of violence” pursuant to United States v. Davis, 139 S.Ct.
2319 (2019). [Id.]. The United States has filed a Response agreeing that the § 924(c) conviction
should be vacated. [Doc. 4]. The Petitioner has not replied, and the matter is now ripe.
II. SECTION 2255 STANDARD OF REVIEW
A federal prisoner claiming that his “sentence was imposed in violation of the Constitution
or the laws of the United States, or that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the sentence to vacate, set aside or correct
the sentence.” 28 U.S.C. § 2255(a).
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 arguments
presented by Petitioner can be resolved without an evidentiary hearing based on the record and
2 Petitioner was charged in Case No. 3:23-cr-90-RJC for the new law violations, i.e., four counts of distributing
methamphetamine and one count of possession with intent to distribute methamphetamine. He pleaded guilty to one
count of distributing methamphetamine; he has not yet been sentenced.
3 An Order of Detention was entered in Case No. 3:23-cr-90-RJC for the new charges on May 1, 2023. [3:23-cr-90,
Doc. 4].
governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
III. DISCUSSION
Section 924(c) prohibits using or carrying a firearm “during and in relation to any crime of
violence or drug trafficking crime….” 18 U.S.C. § 924(c)(1). A “crime of violence” is defined in
§ 924(c)(3) as an offense that is a felony and:
(A) has as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or
(B) that 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.
18 U.S.C.A. § 924(c)(3).
The Supreme Court applied the principles articulated in Johnson v. United States, 576 U.S.
591 (2015), to conclude that the residual clause set forth in § 924(c)(3)(B) is unconstitutionally
vague. United States v. Davis, 139 S.Ct. 2319 (2019). Accordingly, a § 924(c) conviction can only
stand if the predicate offense satisfies the force clause set forth in § 924(c)(3)(A). It is now clear
that Hobbs Act extortion is not a “crime of violence” under § 924(c)’s force clause. See United
States v. Iozzi, 420 F.2d 512, 515 (4th Cir. 1970) (holding that fear of economic loss is sufficient
to support a conviction for Hobbs Act extortion); see, e.g., Brown v. United States, 3:16-cv-310,
2020 WL 437921 (W.D.N.C. Jan. 28, 2020); Diri v. United States, 3:16-cv-476, 2019 WL 5076388
(W.D.N.C. Oct. 9, 2019).
The United States correctly agrees that the § 924(c) conviction was not supported by a
valid predicate crime of violence and that the conviction must be vacated.4 Accordingly,
Petitioner’s § 924(c) conviction will be vacated and the pending Petition for Warrant for Offender
4 Because the Government has conceded that relief should be granted, the Court need not separately address
Petitioner’s argument that the Petition is not barred by the statute of limitations because he is factually innocent of
violating § 924(c).
Under Supervision [CR Doc. 14] and Order of Detention [CR Doc. 19] will be dismissed as moot.*
IV. CONCLUSION
Petitioner’s Motion to Vacate is granted, Petitioner’s conviction is vacated, and the
Pending Petition for Warrant for Offender Under Supervision and Order of Detention are
dismissed as moot.
IT IS, THEREFORE, ORDERED that:
1. Petitioner’s Motion to Vacate Sentence Under 28 U.S.C. § 2255 [Doc. 2] 1s
GRANTED and the Judgment [CR Doc. 11] is VACATED.
2. The Petition for Warrant for Offender Under Supervision [CR Doc. 14] and Order
of Detention [CR Doc. 19] ace DISMISSED AS MOOT.
The Clerk is respectfully directed to serve copies of this Order on the federal Bureau of
Prisons, Petitioner, counsel for the Petitioner, the United States Attorney, and the United States
Probation Office.
Signed: March 29, 2024
Otef$ 4 Cr Of
Robert J. Conrad, Jr. ‘ey
United States District Judge “ee
> Of course, this has no effect on Petitioner’s pretrial detention and charges in Case No. 3:23-cr-90.