United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER’S MOTION TO VACATE
SENTENCE (ECF No. 155) AND DENYING CERTIFICATE OF
MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE
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.
February 17, 2015, Petitioner Jamar Harris was charged with
(1) Hobbs Act robbery in violation of 18 U.S.C. §
1951(a) 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
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,
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’
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
(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).
the question posed by Harris’ motion is: does Hobbs Act
robbery constitute a “crime of violence” under
the elements clause? It does.
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).
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 ...