United States of America v. Deering
Filing
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Opinion and Order Signed by the Honorable Joan H. Lefkow on 12/8/2016: Patrick Deering's 28 U.S.C. § 2255 motion (dkt.1) to vacate his mandatory five-year sentence imposed under 18 U.S.C. § 924(c)(1)(A) is granted. Defendant's cou nsel shall promptly confer with the assigned Assistant United States Attorney to discuss potential dates for Deering's resentencing. This case and case number 02 CR 398-2 will be called for status on December 14, 2016 at 9:00 a.m.Mailed notice(mad, )
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICK DEERING,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 15 C 8320
Criminal Case No. 02 CR 398-2
Judge Joan H. Lefkow
OPINION AND ORDER
Patrick Deering moves to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. (Dkt. 1.) 1 On February 3, 2003, pursuant a plea agreement, Deering pleaded guilty to
conspiracy to commit a robbery affecting interstate commerce in violation of 18 U.S.C. §§ 1951
and 1952 (Hobbs Act conspiracy) and possession of a firearm in furtherance of a crime of
violence in violation of 18 U.S.C. §§ 924(c)(1)(A). (Cr. dkt. 47). On November 14, 2003,
Deering was sentenced to 211 months’ imprisonment: 161 months for the Hobbs Act conspiracy
conviction and a mandatory consecutive 60 months for the § 924(c)(1)(A) conviction. (Cr. dkt.
93.) Deering did not appeal his sentence. According to the Bureau of Prisons’ website,
https://www.bop.gov/inmateloc, Deering is scheduled to be released from custody on September
9, 2017.
Deering filed the instant motion on September 21, 2015, seeking relief from his
consecutive sentence in light of the Supreme Court’s decision in Johnson v. United States,
576 U.S. ---, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015). The government moved to dismiss.
1
References to the docket in Deering’s underlying criminal case, United States v. Deering, No.
02 CR 398-2 (N.D. Ill.) are cited as (cr. dkt. __). References to the present civil proceeding are cited as
(dkt. __).
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Having considered the submissions of the parties, the court denies the motion to dismiss and
grants the motion to vacate the sentence. 2
LEGAL STANDARD
Section 2255 allows a person held in federal custody to petition the sentencing court for
an order vacating, setting aside, or correcting his sentence. 28 U.S.C. § 2255(a). Relief under
§ 2255 is “reserved for extraordinary situations.” Hays v. United States, 397 F.3d 564, 566 (7th
Cir. 2005) (quoting Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996)). A petitioner must
establish “that the district court sentenced him in violation of the Constitution or laws of the
United States or that the sentence was in excess of the maximum authorized by law or is
otherwise subject to collateral attack.” Id. at 566–67 (quoting Prewitt, 83 F.3d at 816). It is
proper to deny a § 2255 motion without an evidentiary hearing if “the motion and the files and
records of the case conclusively demonstrate that the prisoner is entitled to no relief.” 28 U.S.C
§ 2255(b).
Generally, the statute of limitations for filing a collateral attack under § 2255 is one year
from the date the petitioner’s conviction becomes final. 28 U.S.C. § 2255(f)(1). A motion may
also be filed, however, within one year after a right is newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review. 28 U.S.C. § 2255(f)(3).
ANALYSIS
Deering was sentenced to the mandatory minimum of 60 months’ imprisonment under
18 U.S.C. § 924(c)(1)(A)(i), which applies to a defendant who uses or carries a firearm during
the commission of any “crime of violence.” A “crime of violence” is defined as a felony that
either “has as an element the use, attempted use, or threatened use of physical force against the
2
Deering filed his motion pro se, but the Federal Defender later entered an appearance and
replied to the government’s briefing.
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person or property of another,” 18 U.S.C. § 924(c)(3)(A) (force clause), or “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 [felony],” id. § 924(c)(3)(B) (residual clause).
In Johnson v. United States, 576 U.S. ---, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), the
Supreme Court found unconstitutionally vague the residual clause in the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). Deering argues that his five-year sentence under
§ 924(c) cannot be sustained because Johnson renders the statute’s similar residual clause
unconstitutionally vague. In response, the government disputes this assertion, and it further
argues that Hobbs Act conspiracy is a crime of violence under the statute’s force clause and that
Deering’s Johnson claim has been procedurally defaulted for failure to raise it on appeal. 3
I.
The Constitutionality of § 924(c)’s Residual Clause Post-Johnson
In Johnson, the Supreme Court held that ACCA’s residual clause, 18 U.S.C. § 924(e)(2),
is unconstitutionally vague. Johnson, 135 S. Ct at 2557. Applying the new constitutional rule
announced in Johnson, 4 the Seventh Circuit has held unconstitutionally vague the substantially
similar residual clauses in 18 U.S.C. § 16(b), United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir.
2015), and U.S.S.G. § 4B1.2(a)(2), United States v. Hurlburt, 835 F.3d 715 (7th Cir. 2016).
Recently, the Seventh Circuit, again applying the Johnson rule, found § 924(c)(3)(B) likewise
unconstitutionally vague. United States v. Cardena, --- F.3d ----, Nos. 12-3680, 12-3683, 123747, 13-1374, 13-2321, 2016 WL 6819696 (7th Cir. Nov. 18, 2016). Accordingly, if Deering’s
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The government also argues that Deering’s § 2255 motion is untimely; because, however,
Johnson announced a new right on June 26, 2015, and Deering filed his motion fewer than three months
later, his motion is timely under 28 U.S.C. § 2255(f)(3). See infra Section I.
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In Welch v. United States, 578 U.S. ---, 136 S. Ct. 1257, 194 L. Ed. 2d 387 (2016), the Court
declared that Johnson articulated a new, substantive constitutional rule retroactively applicable to cases
on collateral review.
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conviction under § 924(c) is to be upheld, the court must find that Hobbs Act conspiracy fits
within the scope of § 924(c)’s force clause.
II.
Whether Hobbs Act Conspiracy Is a Crime of Violence Under § 924(c)’s Force
Clause
Deering argues that Hobbs Act conspiracy does not qualify as a crime of violence under
the force clause because its elements do not satisfy the clause’s requirement of the “use,
attempted use, or threatened use of physical force.” (Dkt. 15 at 2.) “In determining whether a
predicate offense qualifies as a ‘crime of violence’ under § 924(c), courts use a categorical
approach looking only to the statutory elements of the offense and not to the particular facts
underlying the offense.” United States v. Coleman, No. 14 CR 664, 2016 WL 1435696, at *2
(N.D. Ill. Apr. 12, 2016) (citing Descamps v. United States, 570 U.S. ---, 133 S. Ct. 2276, 2283,
186 L. Ed. 2d 438 (2013)). “To prove … Hobbs Act conspiracy, the government must establish
that two or more persons agreed to commit an unlawful act, and that the defendant knowingly
and intentionally joined in the agreement.” United States v. Haynes, 582 F.3d 686, 698 (7th
Cir. 2009), abrogated on other grounds by United States v. Vizcarra, 668 F.3d 516 (7th Cir.
2012).
The government contends that Hobbs Act conspiracy falls within the force clause because
it includes an agreement “to take property from someone by force … [which] ‘threatens’ the use
of force.” (Dkt. 14 at 13.) The government, however, provides no authority in this circuit, nor
does this court’s research reveal any, recognizing the offense of Hobbs Act conspiracy as
constituting a crime of violence under § 924(c)’s force clause.
Moreover, other circuits that considered this issue pre-Johnson primarily found Hobbs
Act conspiracy to qualify as a crime of violence solely by operation of § 924(c)’s residual clause.
See, e.g., United States v. Turner, 501 F.3d 59, 67 (1st Cir. 2007) (finding that Hobbs Act
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conspiracy satisfied § 924(c)’s residual clause); United States v. Elder, 88 F.3d 127, 128–29 (2d
Cir. 1996) (noting same); United States v. Phan, 121 F.3d 149, 152–53 (4th Cir. 1997) (noting
same); United States v. Taylor, 176 F.3d 331, 337–38 (6th Cir. 1999) (noting same); United
States v. Mendez, 992 F.2d 1488, 1491–92 (9th Cir. 1993) (noting same). Post-Johnson, several
courts have explicitly rejected the argument that Hobbs Act conspiracy satisfies the force
clause’s definition of a crime of violence. See, e.g., United States v. Edmundson, 153 F. Supp. 3d
857, 859 (D. Md. 2015), as amended (Dec. 30, 2015) (finding that “it is undisputed that Hobbs
Act Conspiracy can be committed even without the use, attempted use, or threatened use of
physical force against the person or property of another”); United States v. Luong, CR. NO.
2:99-00433 WBS, 2016 WL 1588495, at *2 (E.D. Cal. Apr. 20, 2016) (holding that conspiracy to
commit Hobbs Act robbery did not satisfy the force clause because a jury would “not [be]
required to find that [defendant] used, attempted to use, or threatened to use physical force in
order to find him guilty of conspiracy”); United States v. Smith, No. 2-11-CR-00058-JAD-CWH,
2016 WL 2901661, at *5 (D. Nev. May 18, 2016) (finding that “[a]greeing to commit a robbery
does not necessarily involve the use, attempted use, or threatened use of physical force”); United
States v. Baires-Reyes, No. 15-CR-00122-EMC-2, 2016 WL 3163049, at * 3 (N.D. Cal. June 7,
2016) (stating “it appears that Congress intended for crimes such as conspiracy to commit Hobbs
Act robbery—which involve a substantial risk that physical force would be used in the course of
committing the offense—to be covered by the residual clause, not the force clause”).
Because neither of the elements of Hobbs Act conspiracy requires the conspirator to use,
attempt, or threaten the use of physical force, Hobbs Act conspiracy does not categorically
qualify as a crime of violence under § 924(c)’s force clause. Therefore, Deering correctly argues
that Hobbs Act conspiracy does not constitute a crime of violence under § 924(c)(3)(A).
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III.
Procedural Default
Now that the court has determined that 924(c)(3)(B) is unconstitutionally vague based on
the newly announced Johnson rule, it can address the procedural default argument more
concisely. Although a defendant is generally barred from raising an argument on collateral
review that was not raised on direct appeal, see Sanchez-Llamas v. Oregon, 548 U.S. 331, 350–
51, 126 S. Ct. 2669, 2682, 165 L. Ed. 2d 557 (2006), a court may excuse procedural default if the
defendant demonstrates “(1) both good cause for his failure to raise the claims on direct appeal
and actual prejudice from the failure to raise those claims, or (2) that the district court’s refusal to
consider the claims would lead to a fundamental miscarriage of justice.” McCleese v. United
States, 75 F.3d 1174, 1177 (7th Cir. 1996) (citations omitted). Deering has shown both good
cause and actual prejudice.
A.
Good Cause
Citing Reed v. Ross, 468 U.S. 1, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984), Deering argues
that he had good cause for not making his argument on direct appeal because a claim based on
Johnson was non-existent until 2015. In Reed, the Supreme Court held that when “a
constitutional claim is so novel that its legal basis is not reasonably available to counsel,” good
cause is demonstrated. Id. at 16. Further, the Court explained that when it explicitly overrules
one of its precedents and applies that decision retroactively, “there will almost certainly have
been no reasonable basis upon which an attorney previously could have urged” for the newly
adopted position. Id. at 17. 5
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Although the Seventh Circuit has repeatedly questioned Reed’s validity following the Supreme
Court’s decision in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 3344 (1989), see, e.g.,
Prihoda v. McCaughty, 910 F.2d 1379, 1386 (7th Cir. 1990), Teague dealt with constitutional rules of
procedure and does not undermine the authority of Reed with respect to a substantive rule such as that
announced in Johnson.
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Johnson acknowledged the Court’s history of rejecting vagueness challenges to the
ACCA’s residual clause. See 135 S. Ct. at 2562–63. Further, as the Seventh Circuit made clear in
Cardena, 2016 WL 6819696, *24–25, § 924(c)’s residual clause was not declared
unconstitutional until Johnson invalidated the substantially similar residual clause in § 924(e).
Thus, Deering has established good cause.
B.
Actual Prejudice
Deering received an additional five-year sentence under § 924(c) when this court
determined that Hobbs Act conspiracy is a crime of violence under § 924(c). That sentence, most
of which Deering has served, is unconstitutional. Thus, he was obviously prejudiced.
Accordingly, Deering’s procedural default is excused.
CONCLUSION AND ORDER
For the foregoing reasons, Deering’s 28 U.S.C. § 2255 motion (dkt.1) to vacate his
mandatory five-year sentence imposed under 18 U.S.C. § 924(c)(1)(A) is granted. Defendant’s
counsel shall promptly confer with the assigned Assistant United States Attorney to discuss
potential dates for Deering’s resentencing. This case and case number 02 CR 398-2 will be called
for status on December 14, 2016 at 9:00 a.m.
Dated: December 8, 2016
_______________________________
U.S. District Judge Joan H. Lefkow
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