Larry Hargrove v. United States of America

Filing 15

Opinion and Order Signed by the Honorable Joan H. Lefkow on 9/19/2017: Larry Hargrove's 28 U.S.C. § 2255 motion (dkt.1) to vacate his mandatory 60-month sentence and five years of supervised release imposed under 18 U.S.C. § 924(c)(1 )(A) is granted. His three year term of supervised release imposed on counts 1, 2, and 4 stands. This case is set for hearing on September 27, 2017 at 9:00, at which time the United States must show cause why Hargrove should not be released forthwith from the physical custody of the Bureau of Prisons. The Federal Defender is requested to appear on behalf of Hargrove.Mailed notice(mad, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LARRY HARGROVE,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 16 CV 7086
Criminal Case No. 01 CR 101-4
Judge Joan H. Lefkow

OPINION AND ORDER
Larry Hargrove moves to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. (Dkt. 1.) 1 On June 22, 2005, a jury convicted Hargrove of one count of racketeering
conspiracy in violation of 18 U.S.C. 1962(d) (count 1), one count of conspiracy to possess with
intent to distribute and to distribute cocaine and marijuana in violation of 21 U.S.C. § 846 (count
2), one count of conspiracy to commit robbery and extortion in violation of 18 U.S.C. §§ 1951
(Hobbs Act conspiracy) (count 4), and one count of possessing a firearm in relation to a crime of
violence in violation of 18 U.S.C. §§ 924(c)(1)(A) (count 6). (Cr. dkt. 129.) Hargrove was
sentenced to 156 months’ imprisonment on counts 1, 2, and 4, to run concurrently. He was also
sentenced to a mandatory consecutive 60 months for the § 924(c)(1)(A) conviction. (Cr. dkt.
143.) Additionally, Hargrove was sentenced to three years’ supervised release on counts 1, 2, and
4, as well as five years of supervised release on count 6, running concurrently. (Cr. dkt. 152.)
According to the Bureau of Prisons’ website, https://www.bop.gov/inmateloc, Hargrove is
scheduled to be released from custody on February 24, 2021.

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References to the docket in Hargrove’s underlying criminal case, United States v. Hargrove,
No. 01 CR 101-4 (N.D. Ill.) are cited as (cr. dkt. __). References to the present civil proceeding are cited
as (dkt. __).

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Hargrove filed his pro se habeas petition on July 1, 2016, seeking relief from his
consecutive sentence under § 924(c)(1)(A) 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
responded in opposition. Having considered the submissions of the parties, the court grants the
motion to vacate the sentence.
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). 2
ANALYSIS
Hargrove 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

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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). The government declines to assert a
statute of limitations defense. (Dkt. 11 at 4, n.1.)

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either “has as an element the use, attempted use, or threatened use of physical force against the
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). At trial, the
jury was instructed as to count 6 that
To prove the defendant guilty of the weapons offense charged in Count
Six, the government must prove the following propositions:
First, that the defendant committed the crime of conspiracy to commit
robbery, as charged in Count Four; and
Second, that the defendant knowingly possessed in furtherance of, or
carried a firearm during and in relation to that crime.
(Cr. dkt. 127 at 42.) Therefore, Hobbs Act conspiracy was the underlying crime of violence for
Hargrove’s conviction on count 6.
In Johnson, the Supreme Court held unconstitutionally vague the residual clause in the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). See Johnson, 135 S. Ct. at
2557. Hargrove argues that his sentence under § 924(c) cannot be sustained because Johnson
renders the statute’s similar residual clause unconstitutionally vague. In response, the
government argues that Hobbs Act robbery is a crime of violence under the statute’s force
clause. This argument is misdirected because, as the government concedes, the predicate crime
of violence was not Hobbs Act robbery, but rather conspiracy to commit Hobbs Act robbery.
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. See Johnson, 135 S. Ct at 2557. Applying the new constitutional rule

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announced in Johnson, 3 the Seventh Circuit found § 924(c)(3)(B) likewise unconstitutionally
vague. See United States v. Cardena, 842 F.3d 959, 995–96 (7th Cir. 2016). Accordingly, if
Hargrove’s 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
Hargrove 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.” To determine when “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 robbery is categorically a crime of violence
under § 924(c)(3)(A) because it “has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” 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.

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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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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
conspiracy satisfies § 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), appeal docketed, No. 1610220 (9th Cir. May 24, 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-CR00122-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”).

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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, Hargrove’s Hobbs Act
conspiracy conviction does not constitute a crime of violence under § 924(c)(3)(A).
CONCLUSION AND ORDER
For the foregoing reasons, Hargrove’s 28 U.S.C. § 2255 motion (dkt.1) to vacate his
mandatory 60-month sentence and five years of supervised release imposed under 18 U.S.C.
§ 924(c)(1)(A) is granted. His three year term of supervised release imposed on counts 1, 2, and
4 stands. This case is set for hearing on September 27, 2017 at 9:00, at which time the United
States must show cause why Hargrove should not be released forthwith from the physical
custody of the Bureau of Prisons. The Federal Defender is requested to appear on behalf of
Hargrove.

Dated: September 19, 2017

_______________________________
U.S. District Judge Joan H. Lefkow

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