Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Smith

United States District Court, N.D. Indiana, Fort Wayne Division

April 17, 2019

UNITED STATES OF AMERICA
v.
CHRISTIAN J. SMITH

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE

         The Defendant, Christian J. Smith, is serving a sentence for attempted robbery of a credit union in violation of 18 U.S.C. § 2113(a) and (d) (Count 2), attempting to interfere with commerce by robbery in violation of 18 U.S.C. § 1951(a) and (b) (Count 3), and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count 5). For purposes of the Count 5 § 924(c) conviction, the crime of violence was the attempted Hobbs Act robbery that was set forth in Count 3. The Defendant now seeks to vacate his conviction and sentence under § 924(c) [Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 326]. The Defendant predicates his Motion on the Supreme Court's decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018). He also argues that attempted robbery by casing, but not actually entering, a bank is not a crime of violence under the elements clause of the statutory definition, § 924(c)(3)(A), because it does not involve the use, attempted use, or threatened use of force.

         The Government has filed a Response [ECF No. 331], arguing that the Defendant's Motion is time-barred because it was filed beyond the one-year statute of limitations. Additionally, the Government argues that his claim fails on the merits because Hobbs Act robbery, and its attempt, is a crime of violence under § 924(c)(3)(A). Thus, the conviction would stand regardless of the constitutionality of § 924(c)(3)(B).

         ANALYSIS

         The Defendant's judgment of conviction was entered on March 15, 2017. He filed his Motion to Vacate on September 4, 2018. A motion filed under 28 U.S.C. § 2255 is subject to a one-year limitations period that runs from:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f). Accordingly, a defendant seeking collateral review under § 2255 will have one year from the date on which his judgment of conviction is final to file his petition, id. § 2255(f)(1); see also Dodd v. United States, 545 U.S. 353, 357 (2005), or one year from three limited, alternative circumstances, 28 U.S.C. § 2255(f)(2)-(4). Here, subsection (f)(3) is the only subsection that could render the Defendant's Motion timely.

         The question, then, is whether the right the Defendant's Motion purports to rely on is one that has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. The Defendant argues that he is actually innocent of the 18 U.S.C. § 924(c) conviction for using a firearm during a crime of violence because Hobbs Act robbery is not a “crime of violence” under that statute. Section 924(c)(1) provide that “any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall” receive a term of imprisonment of not less than five years “in addition to the punishment provided for such crime of violence or drug trafficking crime.” 18 U.S.C. § 924(c)(1). The statute creates “an offense distinct from the underlying federal felony.” Simpson v. United States, 435 U.S. 6, 10 (1978). “Crime of violence” is defined in two ways, the latter of which is commonly referred to as the residual clause and refers to a crime “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)(B).

         The Defendant argues that Dimaya's holding regarding the constitutionality of a similarly-worded statute, 18 U.S.C. § 16, should be applied to § 924(c)'s residual clause. He further maintains that the still intact elements clause, which refers to an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another, ” id. § 924(c)(3)(A), does not apply to his conviction for attempted Hobbs Act robbery.

         The Defendant's argument regarding the application of the elements clause is time-barred. Dimaya did “not have anything to do with the elements clause” of § 924(c) or any other statute, “and § 2255(f)(3) therefore does not afford [him] a new one-year period to seek collateral relief on a theory that the elements clause does not apply to a particular conviction.” Stanley v. United States, 827 F.3d 562, 565 (7th Cir. 2016) (holding that a conviction that the sentencing court counted as violent under the elements clause of the Sentencing Guidelines was outside the scope of Johnson v. United States, 135 S.Ct. 2251 (2015)). On March 15, 2016, this Court denied the Defendant's motion to dismiss Count 5 of the Indictment, which is the same § 924(c) charge that he is now collaterally attacking. The Court's Opinion and Order [ECF No. 80] setting forth its reasons puts this case squarely within the reasoning of Stanley. In the Opinion and Order, the Court unambiguously stated its position that a conviction under Count 3 for attempted Hobbs Act robbery would satisfy as a predicate offense under § 924(c)(3)(A), the elements clause. The Court disclaimed any reliance on the residual clause. Accordingly, nothing about this Court's March 2016 Opinion, or its adjudication of the Defendant's guilt for the § 924(c) offense, is implicated by a right that has been recognized by the Supreme Court.

         The Defendant's collateral challenge to his conviction is time-barred, and he cannot make out a claim of actual innocence. See Lund v. United States, 913 F.3d 665, 667 (7th Cir. 2019) (acknowledging that actual innocence can overcome a statute of limitations bar). The Defendant could not have been found guilty of the attempted Hobbs Act robbery as charged in Count 3 of the Indictment unless he “specific[ally] intent[ed] to commit the full robbery” and took “a substantial step toward that end.” United States v. Muratovic, 719 F.3d 809, 815 (7th Cir. 2013). The Defendant's use of firearm during the attempted Hobbs Act robbery justified the Defendant's § 924(c) conviction because “Hobbs Act robbery is a ‘crime of violence' within the meaning of § 924(c)(3)(A).” United States v. Anglin, 846 F.3d 954, 965 (7th Cir. 2017)[1]; see also United States v. Rivera, 847 F.3d 847, 848-49 (7th Cir. 2017) (stating that “[b]ecause one cannot commit Hobbs ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.