United States District Court, W.D. Arkansas, Texarkana Division
F. Barnes United States District Judge.
the Court is a Report and Recommendation entered by the
Honorable James R. Marschewski on January 4, 2017. ECF No.
Petitioner has filed objections. ECF No. 67. The Court finds
this matter ripe for consideration.
filed the instant Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 on May 11, 2016,
arguing that his sentence should be vacated in light of the
Supreme Court's decision in Johnson v. United
States. ECF No. 60. On May 23, 2016, the Court appointed
the Federal Public Defender to represent Petitioner with
respect to his Johnson claims. The Federal Public
Defender subsequently filed a Memorandum in Support of Motion
under 28 U.S.C. § 2255 on June 9, 2016. ECF No. 62. The
Government subsequently filed a response. ECF No. 64.
plead guilty and was convicted of multiple charges in Case
No. 4:04-CR-40014-002. Presently at issue in regard to Case
No. 4:04-CR-40014-002 is Petitioner's conviction for
using a firearm in connection with a crime of violence,
namely Hobbs Act robbery, in violation of 18 U.S.C. §
924(c). Likewise at issue is Petitioner's conviction in
Case No. 4:04-CV-40016-001 for using a firearm in connection
with a crime of violence, namely kidnapping of a minor, in
violation of 18 U.S.C. § 924(c). In the instant motion,
Petitioner's arguments rest on the assertions that (1)
Johnson-in which the Supreme Court found that the
residual clause of the Armed Career Criminal Act, 18 U.S.C.
§ 924(e), was unconstitutionally vague-renders the
definition of “crime of violence” under 18 U.S.C.
§ 924(c)(3)(B) void for vagueness and (2) Hobbs Act
robbery and kidnapping of a minor are not crimes of violence
under 18 U.S.C. § 924(c)(3)(A). Accordingly, Petitioner
claims he is entitled to § 2255 relief.
consideration, Judge Marschewski found that Petitioner's
arguments were meritless under current Eighth Circuit
precedent as well as untimely and should therefore be
dismissed with prejudice. ECF No. 66, p. 9. However, Judge
Marschewski recommends that a Certificate of Appealibility
should be issued in regard to whether 18 U.S.C. §
924(c)(3)(B) is unconstitutionally vague. On January 18,
2017, Petitioner filed timely objections. ECF No. 67.
Court will address each of Petitioner's objections in
Constitutionality of 18 U.S.C. § 924(c)(3)(B)
objections, Petitioner notes that Judge Marschewski based his
finding that the instant motion should be dismissed with
prejudice on the holding of United States v.
Prickett, 839 F.3d 697 (8th Cir. 2016), in which the
Eighth Circuit determined that Johnson did not
invalidate 18 U.S.C. § 924(c)(3)(B). Petitioner states
that although the Court is bound by Prickett,
Prickett was incorrectly decided. ECF No. 67, p. 3.
Accordingly, Petitioner states that “he objects to the
R&R's recommendation that his motions be denied in
order to preserve his argument on this issue for possible
appeal to the United States Supreme Court.” ECF No. 67,
consideration, it appears that there is no dispute that the
Court is bound by the Eighth Circuit's holding in
Prickett. Therefore, the Court finds that
Petitioner's argument that Johnson rendered 18
U.S.C. § 924(c)(3)(B) unconstitutionally vague is
meritless under current Eighth Circuit precedent.
Accordingly, the Court concludes that Judge Marschewski's
Report and Recommendation should be adopted on this issue.
Hobbs Act Robbery as a Crime of Violence
also objects to Judge Marschewski's conclusion that Hobbs
Act robbery qualifies as a crime of violence under 18 U.S.C.
§ 924(c)(3)(A). ECF No. 67, p. 5.
Report and Recommendation, Judge Marschewski found that the
Eight Circuit has determined that Hobbs Act robbery
constitutes a crime of violence under 18 U.S.C. §
924(c)(3)(A), citing United States v. House, 825
F.3d 381 (8th Cir. 2016), and United States v.
Farmer, 73 F.3d 836 (8th Cir. 1996). ECF No. 66, p. 7.
Petitioner claims that Farmer and House are
distinguishable. In regard to House specifically,
Petitioner states that the House court “did
not have to decide the issue of whether Hobbs Act robbery
qualified as a crime of violence under . . . [18 U.S.C.
§ 924(c)(3)(A)] because the district court did not
sentence the defendant under that provision, but under 18
U.S.C. § 3559(c).” ECF No. 67, p. 5. However,
Petitioner concedes that the House court found that
even if it were required to determine whether Hobbs Act
robbery qualified as a crime of violence under 18 U.S.C.
§ 924(c), it would “be bound by Farmer,
where we concluded that Hobbs Act robbery has ‘as an
element the use, attempted use, or threatened use of physical
force against the person of another.'”
House, 825 F.3d at 387, cert. denied, ...