United States of America v. Pickett

Filing 15

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 3/31/17.Mailed notice(ca, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
JACOBI PICKETT,
Defendant.

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16 C 6461
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
In November 2014, Jacobi Pickett pleaded guilty to one count of obstructing,
delaying, or affecting commerce by robbery in violation of the Hobbs Act, 18 U.S.C.
§ 1951. Because he was in possession of a firearm at the time he committed this
robbery, Pickett also pleaded guilty to one count of using, carrying, and brandishing
a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). He was
subsequently sentenced to a term of 130 months’ imprisonment, which comprised 46
months of imprisonment for violation of the Hobbs Act and 84 months of
imprisonment for violation of § 924(c)(1)(A).
Pickett has moved to vacate his conviction and sentence pursuant to 28
U.S.C. § 2255 with regard to the count under § 924(c)(1)(A). For the reasons stated
herein, his motion is denied.
Legal Standard
Section 2255 provides that a criminal defendant is entitled to relief from his
conviction and sentence if “the court finds that the judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized by law or otherwise

open to collateral attack, or that there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment vulnerable to
collateral attack.” 28 U.S.C. § 2255(b). A court may deny a § 2255 motion without
an evidentiary hearing if “the motion and the files and records of the case
conclusively show” that the defendant is not entitled to relief. Id. Relief under
§ 2255 is available “only in extraordinary situations, such as an error of
constitutional or jurisdictional magnitude or where a fundamental defect has
occurred which results in a complete miscarriage of justice.” Blake v. United States,
723 F.3d 870, 878–79 (7th Cir. 2013).
Analysis
As noted above, Pickett challenges his conviction and sentence under
§ 924(c)(1)(A), which imposes criminal penalties upon any person who uses or
carries a firearm “during and in relation to any crime of violence or drug trafficking
crime” or who possesses a firearm “in furtherance of any such crime.” 18 U.S.C.
§ 924(c)(1)(A). In turn, § 924(c)(3) defines a “crime of violence” as:
[A]n offense that is a felony and—
(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.

Id. § 924(c)(3).

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Pickett contends that his conviction for possessing a firearm in connection
with a Hobbs Act robbery must be vacated on the ground that Hobbs Act robbery is
not a “crime of violence” under either § 924(c)(3)(A) or (B). In Johnson v. United
States, the Supreme Court held that 18 U.S.C. § 924(e)(2)(B)(ii), the so-called
residual clause of the Armed Career Criminal Act, is unconstitutionally vague
under the Due Process Clause.

135 S. Ct. 2551, 2557 (2015).

Johnson was a

substantive decision that applies retroactively in cases on collateral review. Welch
v. United States, 136 S. Ct. 1257, 1265 (2016).

The Seventh Circuit has since

applied Johnson in holding that § 924(c)(3)(B) is also unconstitutionally vague.
United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016). As such, § 924(c)(3)(B)
is off the table, and Pickett’s conviction for using or carrying a firearm in connection
with a Hobbs Act robbery can stand only if Hobbs Act robbery qualifies as a “crime
of violence” under § 924(c)(3)(A).
In asserting that Hobbs Act robbery does not qualify as a crime of violence,
Pickett makes a compelling argument based upon the text of § 1951(b)(1). Under
that provision of the Hobbs Act, robbery is defined as “the unlawful taking or
obtaining of personal property from the person or in the presence of another,
against his will, by means of actual or threatened force, or violence, or fear of injury.”
18 U.S.C. § 1951(b)(1) (emphases added). According to Pickett, because § 1951(b)(1)
enumerates three alternative means of committing Hobbs Act robbery, it
criminalizes conduct that falls outside the scope of § 924(c)(3)(A). In particular,
Pickett contends that the phrase “actual or threatened force” under § 1951(b)(1)
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encompasses lesser degrees of force than are contemplated under § 924(c)(3)(A),
while “fear of injury” under § 1951(b)(1) encompasses fear of financial, social, or
reputational injury implicating no use of force whatsoever. In addition, he argues,
the fact that § 1951(b) lists “violence” in tandem with “actual or threatened force”
and “fear of injury” is further evidence that the latter terms cover at least some
nonviolent conduct, thus defining Hobbs Act robbery more broadly than the conduct
defined under § 924(c)(3)(A).
Unfortunately for Pickett, however, his arguments are foreclosed by
precedent.

The Seventh Circuit recently held that Hobbs Act robbery indeed

qualifies as a “crime of violence” under § 924(c)(3)(A). United States v. Anglin, 846
F.3d 954, 964–65 (7th Cir. 2017). Although the court in Anglin did not explicitly
address the arguments that Pickett raises here, it reached its decision by analogy to
several Seventh Circuit precedents holding that various federal and state robbery
statutes similar to the Hobbs Act give rise to convictions for crimes of violence. Id.
at 965 (citing United States v. Armour, 840 F.3d 904, 908–09 (7th Cir. 2016); United
States v. Duncan, 833 F.3d 751, 758 (7th Cir. 2016); United States v. Lewis, 405
F.3d 511, 514 (7th Cir. 2005)).
In short, under the Seventh Circuit’s decision in Anglin, Hobbs Act robbery
served as a valid predicate for Pickett’s conviction under § 924(c)(1)(A). Id. Pickett
therefore is not entitled to relief from this conviction and the corresponding
sentence.

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Conclusion
For the reasons stated herein, Pickett’s motion to vacate his conviction and
sentence under § 2255 [1] is denied. The Court declines to issue a certificate of
appealability under Rule 11 of the Rules Governing Section 2255 Proceedings for
the United States District Courts. 28 U.S.C. § 2253(c)(2); Narvaez v. United States,
674 F.3d 621, 626 (7th Cir. 2011) (citing Slack v. McDaniel, 529 U.S. 473, 483–84
(2000)). This case is hereby terminated.

IT IS SO ORDERED.

ENTERED

3/31/17

__________________________________
John Z. Lee
United States District Judge

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