United States District Court, S.D. Indiana, Indianapolis Division
ORDER DISMISSING MOTION TO VACATE, SET ASIDE, OR
CORRECT SENTENCE AND DENYING A CERTIFICATE OF
R. SWEENEY II, JUDGE
Dawan Vanzant filed this motion for relief pursuant to 28
U.S.C. § 2255 arguing that his conviction and sentence
are illegal. For the reasons stated below, the motion for
relief is denied and this action is
dismissed pursuant to Rule 4 of the Rules Governing
Section 2255 Proceedings for the United States
provides that upon preliminary consideration by the district
court judge, “[i]f it plainly appears from the motion,
and any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief,
the judge must dismiss the motion and direct the clerk to
notify the moving party.” Section 2255 permits a
federal court to grant relief “if it finds that the
judgment was rendered without jurisdiction, or that the
sentence imposed was not authorized by law or otherwise open
to collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as
to render the judgment vulnerable to collateral
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).
September 6, 2017, Mr. Vanzant was charged with one count of
robbery through interference with commerce by threats or
violence in violation of 18 U.S.C. § 1951(a)
(“Hobbs Act Robbery”) and one count of using a
firearm during and in relation to a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). United
States v. Vanzant, 1:17-cr-178-JRS-TAB-2 (“Cr.
Dkt.”) Dkt. 1. The crime of violence on which his
charge of using a firearm related to was the Hobbs Act
Robbery. Mr. Vanzant pleaded guilty to these counts and the
Court entered Judgment on November 14, 2018. Cr. Dkt. 50. He
was sentenced to a term of imprisonment of 130 months.
with his plea agreement, Mr. Vanzant did not appeal. He then
filed this motion for relief pursuant to § 2255.
support of his motion for relief, Mr. Vanzant argues that his
conviction for Hobbs Act Robbery cannot form the basis for
his conviction under the Armed Career Criminal Act, 18 U.S.C.
§ 924(c), (“ACCA”) for using a firearm
during and in relation to a crime of violence.
Vanzant explains that the definition of Hobbs Act Robbery
includes “conspiracy” to commit Hobbs Act
Robbery, which some courts have held is not a crime of
violence. He concludes, therefore, that because the
definition of Hobbs Act Robbery includes acts that would not
qualify as a crime of violence, his conviction for Hobbs Act
Robbery also does not qualify as a crime of violence. He
bases this argument on the Supreme Court's ruling in
Mathis v United States, 136 S.Ct. 2243 (2016), that
a prior conviction does not qualify as a violent felony
offense for purposes of enhancement under the ACCA if an
element of the crime of conviction is broader than an element
of the generic offense. He argues that his counsel was
ineffective for failure to present this argument.
Seventh Circuit has held that Hobbs Act robbery constitutes a
crime of violence under the ACCA. See United States v.
Anglin, 846 F.3d 954, 965 (7th Cir. 2017) (“Hobbs
Act robbery is a ‘crime of violence' within the
meaning of § 92(c)(3)(A).”); see also
United States v. Rivera, 847 F.3d 847, 849 (7th Cir.
2017) (holding that the Supreme Court's decision in
Mathis, does not undermine the holding of
Anglin that Hobbs Act robbery constitutes a crime of
violence under the force clause of § 924(c)(3)).
Moreover, Mr. Vanzant was convicted of Hobbs Act Robbery, not
conspiracy to commit Hobbs Act Robbery. Cr. Dkt. 50.
Vanzant also argues that his Hobbs Act Robbery does not
qualify as a “crime of violence” based on the
Supreme Court's decision in Davis v. United
States, 139 S.Ct. 2319 (2019), invalidating the
so-called residual clause of § 924(c). Section
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. In Davis the Supreme
Court held that 18 U.S.C. § 924(c)(3)'s residual
clause- that is, § 924(c)(3)(B)-was unconstitutionally
vague. 139 S.Ct. at 2336; see also United States v.
Cardena, 842 F.3d 959, 996 (7th Cir. 2016) (“[W]e
hold that the residual clause in 18 U.S.C. §
924(c)(3)(B) is also unconstitutionally vague.”).
However, Hobbs Act robbery, 18 U.S.C. § 1951(a) is a
crime of violence under the still-valid “elements
clause” of § 924(c)(3)(A). See Haynes v.
United States, 936 F.3d 683, 690 (7th Cir. 2019);
United States v. Fox, No. 18-3087, 2019 WL 5783473,
at *2 (7th Cir. Nov. 6, 2019). Accordingly, the ruling in
Davis regarding the residual clause does not apply
to Mr. Vanzant's conviction.
short, Mr. Vanzant is not entitled to relief under
Mathis or Davis. Accordingly, his motion
for relief ...