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Horne v. United States

United States District Court, S.D. Indiana, Indianapolis Division

March 19, 2018

DEWAN ANTHONY HORNE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER GRANTING MOTION TO VACATE, SET ASIDE, OR MODIFY SENTENCE AND DIRECTING ENTRY OF FINAL JUDGMENT AND IMMEDIATE RELEASE OF PETITIONER

          TANYA WALTON PRATT, United States District Judge.

         For the reasons explained in this Order, the Motion filed by Dewan Anthony Horne (“Horne”) for relief pursuant to 28 U.S.C. § 2255 must be granted.

         I. THE § 2255 MOTION

         A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 “upon the ground that the sentence was imposed in violation of the Constitution or 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.” 28 U.S.C. § 2255(a). The scope of relief available under § 2255 is narrow, limited to “an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991) (internal citations omitted).

         II. BACKGROUND

         On April 20, 2005, Horne was charged in a multi-count, multi-defendant superseding indictment. In particular, Horne was charged in Count One with Conspiracy to Interfere with Commerce by Threats or Violence, in violation of 18 U.S.C. § 1951(a). The indictment alleged that Horne, along with Joseph E. Rodgers (“Rodgers”) and Desmond Alexander Johnson (“Johnson”), used the internet to lure potential buyers of automobiles to Indianapolis, Indiana. Horne would make arrangements to meet the potential buyers and lead them to Rodgers and Johnson, who while wielding firearms, robbed or attempted to rob these potential buyers of their cash at gunpoint. Count Two charged Horne with Interference with Commerce by Threats or Violence, in violation of 18 U.S.C. § 1951(a) (also known as a Hobbs Act robbery). Count Three charged Horne with Attempt to Interfere with Commerce by Threats or Violence, in violation of 18 U.S.C. §§ 2, 1951(a). Counts Four and Five charged Horne with Brandishing a Firearm During a Crime of Violence, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(ii).

         On June 21, 2005, Horne was convicted following a jury trial on Counts One, Two, Three and Four, and was found not guilty of Count Five. On October 7, 2005, Horne was sentenced to 112 months imprisonment on Counts One through Three, and 84 months on Count Four, to be served consecutively. Horne was also ordered to pay restitution in the amount of $13, 265.00 and a special assessment of $400.00. On June 19, 2008, Horne filed a pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, which was denied on December 22, 2009. See Horne v. USA, No. 1:08-cv-00837-RLY-JMS, Dkt. 18.

         In 2015, the United States Supreme Court in Johnson held that the so-called residual clause of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551, 2563 (2015). The Seventh Circuit has 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 unconstitutionally vague.

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 Cir. 2016).

         On June 22, 2016, Horne filed an application with the Seventh Circuit seeking authorization to file a successive motion to vacate under § 2255 limited to a claim under Johnson. On Jun 23, 2016, the Seventh Circuit granted the application and authorized this Court to consider Horne's Johnson claim. Horne v. USA, No. 16-2608, dkt. 2 (7th Cir. June 23, 2016).

         III. DISCUSSION

         Horne seeks relief pursuant to § 2255 arguing that his § 924(c) conviction was predicated on a conspiracy to commit a Hobbs Act robbery - and not the Hobbs Act robbery itself - and because conspiracy does not qualify as a “crime of violence” under the § 924(c) residual clause, his § 924(c) conviction cannot be constitutionally sustained. The United States argues that Horne's § 924(c) conviction stemmed from Count Two, the Hobbs Act robbery, and not Count One, the conspiracy. In the alternative, the United States argues that a conspiracy to commit a Hobbs Act robbery is a “crime of violence.” In reply, Horne argues that in his indictment, the United States chose to tie Count Four to Count One (and not to Count Two), and is therefore bound to that scope.

         A. Whether Horne's Count Four ...


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