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United States v. Harris

United States District Court, E.D. Michigan, Southern Division

September 30, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
D-3, JAMAR HARRIS, Defendant/Petitioner.

          ORDER DENYING PETITIONER’S MOTION TO VACATE SENTENCE (ECF No. 155) AND DENYING CERTIFICATE OF APPEALABILITY

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

         Petitioner Jamar Harris has filed a motion to vacate his sentence under 28 U.S.C. § 2255 (“Section 2255”). For the reasons explained below, the motion is DENIED.

         I

         On February 17, 2015, Petitioner Jamar Harris was charged with (1) Hobbs Act robbery in violation of 18 U.S.C. § 1951(a)[1] and (2) using a firearm during and in relation to the commission of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) (“Section 924(c)(1)(A)”). (See Indictment, ECF No. 16.) The “crime of violence” underlying the Section 924(c)(1)(A) charge was Harris’ alleged Hobbs Act robbery. (Id.)

         Harris pleaded guilty to the Hobbs Act robbery charge on October 13, 2015. (See Plea Hr’g, ECF No. 75.) On December 2, 2015, a jury convicted Harris on the Section 924(c)(1)(A) charge. (Jury Verdict, ECF No. 99, PageID.570.) Prior to the jury’s deliberations, the Court instructed the jurors that Hobbs Act robbery is a crime of violence for Section 924(c)(1)(A) purposes. (12/2/2015 Trial Tr., ECF No. 107, PageID.964.)

         Harris now moves to vacate his sentence under Section 2255. (See Mot. to Vacate, ECF No. 155.) He argues that in light of recent Supreme Court rulings, his Hobbs Act robbery was not a crime of violence under Section 924(c)(1)(A). (See id., PageID. 1335, 1340–47 (citing, among other cases, Johnson v. United States, 135 S.Ct. 2551 (2015) and Sessions v. Dimaya, 138 S.Ct. 1204 (2018)).) For the reasons explained below, the Court disagrees and therefore DENIES Harris’ Motion.

         II

         Section 924(c)(1)(A) “prohibits using a firearm in furtherance of a crime of violence.” Deatrick v. Sherry, 451 Fed.App’x 562, 565 (6th Cir. 2011). For purposes of Section 924(c)(1)(A), a “crime of violence” is a 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, 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). Subsection (A) of the definition is known as the “elements clause, ” while Subsection (B) is called the “residual clause.” See Knight v. United States, 936 F.3d 495, 497 (6th Cir. 2019). The Supreme Court recently invalidated the residual clause as unconstitutionally vague. See United States v. Davis, 139 S.Ct. 2319 (2019). But an offense is still a “crime of violence” if it satisfies the elements clause. See, e.g., Knight, 936 F.3d at 497 (holding that assault and robbery of a postal employee constituted a “crime of violence” because it satisfied the elements clause).

         Thus, the question posed by Harris’ motion is: does Hobbs Act robbery constitute a “crime of violence” under the elements clause? It does.

         Courts apply a “categorial approach” to determine whether an offense qualifies as a “crime of violence” under the elements clause. United States v. Rafidi, 829 F.3d 437, 444 (6th Cir. 2016). “Under [that] approach, a court ‘focuses on the statutory definition of the offense, rather than the manner in which an offender may have violated the statute in a particular circumstance.’” Id. (quoting United States v. Denson, 728 F.3d 603, 607 (6th Cir. 2013)). “Courts use a variant of this method – labeled (not very inventively) the ‘modified categorical approach’ – when a prior conviction is for violating a so-called ‘divisible statute, ’ which sets out one or more elements of the offense in the alternative.” Id. (quotation omitted). A court applying the modified categorical approach “consult[s] a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction.” Descamps v. United States, 570 U.S. 254, 257 (2013).

         The Court applies the modified categorical approach here because the Hobbs Act is divisible: it is violated when a defendant interferes with interstate commerce by robbery or, in the alternative, by extortion. See United States v. Gooch, 850 F.3d 285, 291 (6th Cir. 2017) (ruling that the Hobbs Act is a divisible statute). Here, Harris’ indictment and jury instructions make clear that Harris was charged with and convicted of Hobbs Act robbery, not Hobbs Act extortion. (See Indictment, ECF No. 16, PageID.38–39 (charging Harris with “Interference with Commerce by Robbery”); 12/2/2015 Trial Tr., ECF No. 107, PageID.964 (informing the jury that, “In this case that crime of violence is the robbery ...


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