United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN JUDGE
Defendant, Brenton Ennis, is serving a sentence for using a
firearm during and in relation to a crime of violence, 18
U.S.C. § 924(c), and for Hobbs Act robbery, 18 U.S.C.
§ 1951(a)(1). The Defendant now seeks to vacate his
conviction and sentence under § 924(c) [Motion to Vacate
Sentencing Pursuant to 28 U.S.C. § 2255, ECF No. 189].
His Motion is predicated on the Supreme Court's decision
in Johnson v. United States, 135 S.Ct. 2551 (2015).
The Defendant maintains that Hobbs Act robbery, 18 U.S.C.
§ 1951(a), cannot be a predicate offense for a §
924(c) conviction because the statute does not have as an
element the use, attempted use, or threatened use of force.
Defendant filed his Motion on June 24, 2016-within the
one-year period set forth in § 2255(f)(3), based on the
Supreme Court's June 26, 2015 decision in
Johnson, which is retroactively applicable to cases
on collateral review. Welch v. United States, 136
S.Ct. 1257, 1265 (2016) (“Johnson is . . . a
substantive decision and so has retroactive effect . . . in
cases on collateral review.”); Price v. United
States, 795 F.3d 731, 734 (7th Cir. 2015)
(Johnson announced a new substantive rule which
applies retroactively on collateral review). The Court treats
the Motion as timely filed.
2255 allows a defendant to move to vacate, set aside, or
correct a sentence that was imposed in violation of the
Constitution of the United States. See 28 U.S.C.
§ 2255(a). Relief under § 2255 is “available
only in extraordinary situations, ” requiring an error
of constitutional or jurisdictional magnitude or a
fundamental defect that resulted in a complete miscarriage of
justice. Blake v. United States, 723 F.3d 870,
878-79 (7th Cir. 2013).
sustain a conviction under 18 U.S.C. § 924(c)(3), the
government must prove that the defendant (1) used or carried
a firearm and (2) did so during and in relation to a
“crime of violence.” Under § 924(c)(3), the
term “crime of violence” is “an offense
that is a felony” that (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. § 924(c)(3)(A)-(B). Subsection (A) is known as
the elements clause, and subsection (B) is referred to as the
substantive crime of violence, or drug trafficking crime, for
which the person may be prosecuted is identified in the
§ 924(c) charge. See Davila v. United States,
843 F.3d 729, 731 (7th Cir. 2016) (noting that a §
924(c) offense is a stand-alone crime for which no underlying
conviction needs to be obtained). Here, the Indictment
identifies the predicate crime of violence as Hobbs Act
robbery, in violation of 18 U.S.C. § 1951(a).
defendant commits Hobbs Act robbery if he:
obstructs, delays, or affects commerce or the movement of any
article or commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or threatens
physical violence to any person or property in furtherance of
a plan or purpose to do anything in violation of this
18 U.S.C. § 1951(a). “Robbery, ” in turn, is
the unlawful taking or obtaining of personal property from
the person or in the presence of another, against his will,
by means of actual or threatened force, or violence, or fear
of injury, immediate or future, to his person or property, or
property in his custody or possession, or the person or
property of a relative or member of his family or of anyone
in his company at the time of the taking or obtaining.
18 U.S.C. § 1951(b)(1).
already stated, the Defendant's Motion invokes the
Supreme Court's decision in Johnson, which held
that the residual clause of the definition of a
“violent felony” in the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(2)(B), is unconstitutionally
vague. 135 S.Ct. at 2557 (invalidating the phrase “or
otherwise involves conduct that presents a serious potential
risk of physical injury to another”). The Defendant was
not sentenced under the ACCA, but he claims that Hobbs Act
robbery no longer qualifies as a crime of violence under
§ 924(c)(3) based on Johnson's reasoning.
His argument is two-part.
part, he argues that the holding in Johnson
necessarily rendered the residual clause of §
924(c)(3)(B) unconstitutionally vague. That argument has
merit. See United States v. Cardena, 842 F.3d 959,
996 (7th Cir. 2016) (holding that the residual clause in 18
U.S.C. § 924(c)(3)(B) is unconstitutionally vague).
However, it is not necessary to rely on the residual clause
in this case ...