MACK
v.
UNITED STATES
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The court held that the petitioner's convictions for Hobbs Act robbery and brandishing a firearm are valid and not unconstitutional under the Davis decision.
Petitioner moved to vacate his convictions for Hobbs Act robbery and brandishing a firearm, arguing they were unconstitutional in light of United Stat…
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THE MATTER was referred to the Honorable Lisette M. Reid, United States Magistrate Judge, for a Report and Recommendation on pro se Petitioner’s Motion to Vacate made pursuant to 28 U.S.C. § 2255, filed on August 27, 2019. The Magistrate Judge filed a Report and Recommendation (D.E. 11) on March 23, 2020. The Court has reviewed the entire file and record. The Court has made a de novo review of the issues that the objections to the Report and Recommendation present, and being otherwise fully advised in the premises, it is ADJUDGED that Magistrate Judge Reid’s Report and Recommendation is AFFIRMED and ADOPTED.
Accordingly, the Motion to Vacate is DENIED. Petitioner originally pled guilty to two counts: (1) Hobbs Act robbery under 18 U.S.C. § 1951(a) and (2) brandishing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(A)Gii) in connection with the robbery. Petitioner now argues in his motion and objections that both convictions are unconstitutional in light of United States v. Davis, 139 S. Ct. 2319 (2019), which invalidated the residual clause of section 18 U.S.C. § 923(c)(3)(B). The problem with Petitioner’s first argument
seeking to overturn his first conviction is that his Hobbs Act robbery conviction is a crime of violence under the elements clause of section 924(c)(3)(A), as opposed to the now invalid residual clause of 924(c)(3)(B). See United States v. St. Hubert, 909 F. 3d 335, 345 (11th Cir. 2018). As for Petitioner’s second argument that his second conviction is invalid, it similarly fails as brandishing a firearm (an attempted use or threatened use of force) is also a crime of violence under the elements clause. See In re Fleur, 824 F. 3d 1337, 1341-42 (11th Cir. 2016). Consistent with the Report and Recommendation, it is further ADJUDGED that no certificate of appealability issue. DONE AND ORDERED in Chambers at Miami, Florida, this 8th of April 2020.
FEDERICO A. MORENO
UNITED STATES DISTRICT JUDGE
Copies furnished to: United States Magistrate Judge Lisette M. Reid Counsel of Record Caudrey Mack 16476-104 Coleman Medium Federal Correctional Institution Inmate Mail/Parcels Post Office Box 1032 Coleman, FL 33521
PRO SE
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- United States v. Davis, 139 S. Ct. 2319 (U.S. 2019)
- In re Marckson Saint Fleur, 824 F.3d 1337 (11th Cir. 2016)
- United States v. ST. Hubert, 909 F.3d 335 (11th Cir. 2018)