United States of America v. Gall
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 12/13/2016. Mailed notice. (mgh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
v.
WAYNE GALL
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No. 16 CV 6579
ORDER
In 1996, Wayne Gall (“Gall”) was charged with several
federal crimes, including multiple counts of robbery under the
Hobbs Act, 18 U.S.C. § 1951, in connection with two robberies of
tractor-trailers carrying shipments in interstate commerce. See
United States v. Gall, 116 F.3d 228, 229 (7th Cir. 1997). Based
on his use of a firearm in connection with the crimes, he was
also charged with carrying a firearm in the commission of a
crime of violence in violation of 18 U.S.C. § 924(c)(3). Gall
pleaded guilty and was sentenced by Judge Suzanne Conlon to 235
months’ imprisonment for the robberies and other offenses, and
an additional 60 months’ imprisonment to run consecutively for
the § 924(c) violation. He now moves pursuant to 28 U.S.C. §
2255 to vacate his sentence for the § 924(c)(3) violation. The
motion is denied.
Section 924(c)(3) defines “crime of violence” as an 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.
18 U.S.C. § 924(c)(3)(A)-(B). Prong (A) of the definition is
commonly referred to as the provision’s “elements” clause (or
“force” clause) and prong (B) is referred to as the “residual”
clause.
Gall argues that § 924(c)(3)’s residual clause is
unconstitutionally vague in light of the Supreme Court’s recent
decision Johnson v. United States, 135 S. Ct. 2551 (2015).
There, the Court held that the similarly-worded residual clause
of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), was
void for vagueness. Johnson, 135 S. Ct. at 2257. Gall is
correct: shortly after the parties completed briefing on the
instant motion, the Seventh Circuit held that Johnson rendered §
924(c)(3)’s residual provision unconstitutional. See United
States v. Cardena, No. 12-3680, 2016 WL 6819696, at *25 (7th
Cir. Nov. 18, 2016).
Gall is not entitled to relief, however, because his §
924(c)(3) conviction can be sustained under the elements clause.
Gall disputes this, but his argument fails for two reasons.
First, the argument is untimely. Section 2255 has a one-year
statute of limitations. See 28 U.S.C. § 2255(f). The instant
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motion comes nearly twenty years after Gall pleaded guilty to
the offense. Gall notes that Johnson has been held to apply
retroactively in cases under collateral review. See Welch v.
United States, 136 S. Ct. 1257, 1265 (2016). But since Johnson
applies only to § 924(c)’s residual clause, it does not excuse
Gall’s failure to raise his argument as to the elements clause.
See, e.g., Stanley v. United States, 827 F.3d 562, 565 (7th Cir.
2016) (“Johnson does not have anything to do with the elements
clause . . . , and § 2255(f)(3) therefore does not afford
prisoners a new one-year period to seek collateral relief on a
theory that the elements clause does not apply to a particular
conviction.”). Gall also appears to invoke the “actual
innocence” exception to § 2255’s statute of limitations,
asserting that in light of Johnson he is now actually innocent
of the § 924(c)(3) offense. Again, however, Johnson at most
shows his innocence only with respect to the residual clause,
not the elements clause.
Gall’s argument that his § 924(c)(3) conviction cannot be
sustained under the elements clause also fails on the merits.
Gall contends that the predicate offense for his § 924(c)(3)
conviction -- Hobbs Act robbery -- does not qualify as a “crime
of violence” within the meaning of the provision. He correctly
notes that courts use the so-called “categorical approach” in
determining whether a predicate offense qualifies as a “crime of
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violence” under § 924(c)(3). See, e.g., United States v.
Cardena, No. 12-3680, 2016 WL 6819696, at *25 (7th Cir. Nov. 18,
2016). This approach requires courts to look “only to the
statutory elements of the offense and not to the particular
facts underlying the offense.” United States v. Coleman, No. 14CR-664, 2016 WL 1435696, at *2 (N.D. Ill. Apr. 12, 2016) (citing
Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)).
Further, under the categorical approach, a “crime may only serve
as a predicate offense for the [elements] clause if the conduct
that it encompasses does not exceed the conceivable scope of the
[elements] clause.” Id.
According to Gall, the conduct encompassed by Hobbs Act
robbery exceeds the scope of the elements clause. He points out
that while the elements clause requires the use or threatened
use of physical force, the Hobbs Act defines robbery as “the
unlawful taking or obtaining of personal property from the
person ... by means of actual or threatened force, or violence,
or fear of injury ... to his person or property.” 18 U.S.C. §
1951(b)(1) (emphasis added). Gall argues that Hobbs Act robbery
may be accomplished by creating the mere “fear of injury” and
thus, unlike the elements clause, need not involve the use or
threat of physical force.
This argument has been presented to numerous courts and has
been consistently rejected. See, e.g., United States v. Hill,
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832 F.3d 135, 137 (2d Cir. 2016) (“We ... hold that Hobbs Act
robbery is a crime of violence under 18 U.S.C. § 924(c)(3).”);
In re Fleur, 824 F.3d 1337, 1341 (11th Cir. 2016); United States
v. Howard, 650 F. App’x 466, 468 (9th Cir. 2016); United States
v. Bennett, No. 3:15CR134, 2016 WL 354753, at *4 & n. 6 (E.D.
Va. Jan. 27, 2016) (collecting cases). As the court observed in
Coleman, “the numerous recent cases applying section 924 to
Hobbs Act robbery have unanimously held that Hobbs Act robbery
is a crime of violence under the [elements] clause because ‘fear
of injury,’ as that phrase is used in the statute, may only be
created through the use or threatened use of physical force.”
Coleman, 2016 WL 1435696, at *2. I agree.
In short, while Johnson rendered § 924(c)(3)’s residual
provision unconstitutional, Gall’s conviction remains valid
under the provision’s elements clause. Gall’s challenge on the
latter point is both untimely and fails on the merits.
Accordingly, his motion is denied.
ENTER ORDER:
Elaine E. Bucklo
United States District Judge
Dated: December 13, 2016
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