Harper v. United States of America

Filing 15

MEMORANDUM OF OPINION AND ORDER - Having now carefully reviewed and considered the § 2255 motion and the Government's response to it, and having independently examined the entire record in Petitioner's criminal case, it is hereby ORDER ED that the motion for § 2255 relief is GRANTED insofar as what is covered in this opinion, and Petitioner's sentence in United States v. Harper, 2:11-cr-00013-LSC-HNJ-2 is hereby VACATED. By separate order in Petitioner's criminal case, the Court will set a new sentencing hearing for the Petitioner. This action is DISMISSED WITH PREJUDICE. Signed by Judge L Scott Coogler on 2/5/2024. (MEB2)

FILED
2024 Feb-05 PM 03:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANTOINE HARPER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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2:22-cv-08028-LSC
(2:11-cr-00013-LSC-HGD-2)

MEMORANDUM OF OPINION AND ORDER
Before this Court is a motion by Antoine Harper (“Harper”) to vacate, set
aside, or otherwise correct his sentence, pursuant to 28 U.S.C. § 2255 (“§ 2255”)
(Doc. 1.) The Government is in agreement with Harper’s motion. (Doc. 6.)
Accordingly, Harper’s petition (doc. 1) is due to be granted for the reasons stated
below.
I.

Background
On September 6, 2011, Harper pled guilty to three counts of attempted

Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Counts Eight, Twelve, Fourteen),
one count of attempted armed bank robbery in violation of 18 U.S.C. § 2113(a)
(Count Ten), using and carrying a firearm during and in relation to a crime of
violence (based upon Count Ten) in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count
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Eleven), and a subsequent conviction for using and carrying a firearm and in
relation to a crime of violence (based upon Count Fourteen) in violation of 18 U.S.C.
§ 924(c)(1)(C)(I) (Count Fifteen). (Cr. Doc. 112.) 1 This Court sentenced Harper to
eighty-seven months as to Counts Eight, Twelve, and Fourteen, separately, to run
concurrently with other counts, eighty-seven months as to Count Ten to run
consecutively to all other counts, and 300 months as to Count Fifteen to run
consecutively to all other counts. (Cr. Doc. 149 at 2.)
II.

The § 2255 Motion and the Government’s Response
Harper filed the present motion on July 22, 2022. (Doc. 1.) His motion is

based upon the Supreme Court holding in Taylor v. United States. 596 U.S. 2015
(2022). 2 Taylor held that attempted Hobbs Act robbery is not a crime of violence.
Taylor, 596 U.S. at 860. Therefore, it cannot be used with the enhancement
articulated in 18 U.S.C. § 924(c) that gives defendants enhanced penalties when a
firearm is used in furtherance of a crime of violence.

“Cr. Doc.” refers to an entry on the docket sheet in the underlying criminal case, United States
v. Harper, No. 2:11-cr-00013-LSC-HGD-2.
1

Taylor was decided on June 21, 2022. Harper’s motion is therefore timely because it is within
one year of “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.” 28 U.S.C. § 2255(f)(3).
2

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In his petition, Harper contends he should be resentenced because he
received an 18 U.S.C. § 924(c) enhancement when his underlying crime was
attempted Hobbs Act robbery. The Government’s response agreed with Harper and
stated that Count Fifteen is the enhancement at issue and that “the Petitioner’s
motion . . . pursuant to 28 U.S.C. § 2255 is due to be granted as it relates to the
singular ground raised by the petitioner.” (Doc. 6 at 6.)
III.

Conclusion
Having now carefully reviewed and considered the § 2255 motion and the

Government’s response to it, and having independently examined the entire record
in Petitioner’s criminal case, it is hereby ORDERED that the motion for § 2255 relief
is GRANTED insofar as what is covered in this opinion, and Petitioner’s sentence in
United States v. Harper, 2:11-cr-00013-LSC-HNJ-2 (N.D. Ala.) is hereby
VACATED. By separate order in Petitioner’s criminal case, the Court will set a new
sentencing hearing for the Petitioner. This action is DISMISSED WITH PREJUDICE.
DONE and ORDERED on February 5, 2024.

_____________________________
L. Scott Coogler
United States District Judge

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