United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
EVANS BARKER, JUDGE.
motion of Petitioner Joshua Neubert for relief pursuant to 28
U.S.C. § 2255 challenged his sentence pursuant to the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). For the reasons
explained, his motion for relief must be
denied and the action dismissed with
prejudice. In addition, the Court finds that a certificate of
appealability should not issue.
The § 2255 Motion
Neubert was charged in an eight-count Indictment in No.
1:07-cr-00166-SEB-KPF-1, alleging multiple counts of Hobbs
Act robbery in violation of 18 U.S.C. § 1915(a), (b)(1)
and possessing and brandishing a firearm in relation to a
crime of violence under 18 U.S.C. § 924(c). Mr. Neubert
entered into a plea agreement with the government, whereby he
pleaded guilty to Counts 2 and 4 of the Indictment, both of
which charged him with brandishing a firearm in relation to a
crime of violence in violation of 18 U.S.C. §
924(c)(1)(A)(ii). The Court accepted Mr. Neubert's plea.
In accordance with the plea agreement, the Court sentenced
Mr. Neubert to 7 years' imprisonment on Count 2 and 25
years' imprisonment on Count 4 to be served
consecutively, for an overall sentence of 32 years'
imprisonment. The remaining counts were dismissed, and
Judgment was entered on October 15, 2008.
Neubert appealed the judgment, but his appeal was dismissed
by the Seventh Circuit. Several years later, on March 5,
2015, Mr. Neubert file a motion to vacate under 28 U.S.C.
§ 2255. The Court denied this motion on May 11, 2015.
Neubert filed a second § 2255 motion on March 11, 2016.
This Court transferred it to the Seventh Circuit Court of
Appeals for consideration as an application for authorization
to file a second or successive § 2255 under §
2255(h). The Seventh Circuit granted Mr. Neubert
authorization, stating: “Neubert says the offenses
during which he brandished a gun no longer qualify as
‘crimes of violence' because the similarly worded
residual clause in § 924(c)(3)(B) is likewise
unconstitutionally vague. Neubert makes a prima facie showing
that his conviction is incompatible with
Johnson.” Dkt. 3 at 1. Based on that
authorization, this action commenced, and Mr. Neubert, by
counsel, filed the presently pending § 2255 motion
raising his authorized Johnson claim.
Supreme Court in Johnson held that the so-called
residual clause of the Armed Career Criminal Act
(“ACCA”) was unconstitutionally vague. The
Seventh Circuit recently summarized Johnson's
impact on the ACCA:
The [ACCA] . . . classifies as a violent felony any crime
that “is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another”.
The part of clause (ii) that begins “or otherwise
involves” is known as the residual clause.
Johnson holds that the residual clause is
Stanley v. United States, 827 F.3d 562, 564 (7th
Cir. 2016). Johnson's holding is a new rule of
constitutional law that the Supreme Court made retroactive in
Welch v. United States, 136 S.Ct. 1257 (2016).
See Holt v. United States, 843 F.3d 720, 722 (7th
Johnson, defendants across the country have
challenged their convictions and sentences under statutes
that have the same or similar language as the ACCA's
residual clause, arguing that those statutes must likewise be
unconstitutionally vague. Mr. Neubert raises one variant of
this argument, challenging the residual clause found in
924(c)(1)(A) imposes minimum sentences for possessing,
brandishing, or discharging a firearm “in relation to
any crime of violence or drug trafficking crime.” 18
U.S.C § 924(c)(1)(A). Section 924(c)(3) of the statute
defines “crime of violence” to include any felony
that either “(A) has as an element the use, attempted
use, or threatened use of physical force against the person
or property of another, ” often referred to as the
elements clause or force clause, or “(B) by its nature,
involves a substantial risk that physical force against the
person or property of another may be used, ” referred
to as the residual clause.
Neubert argues that his convictions for brandishing a firearm
during a crime of violence under 18 U.S.C. §
924(c)(1)(A)(ii), which are predicated on Hobbs Act robbery
as the crime of violence, are no longer valid in light of
Johnson. Specifically, Mr. Neubert argues that his
Hobbs Act robbery, 18 U.S.C. § 1951, does not qualify as
a crime of violence under the force clause and that