Whigum v. USA

Filing 1

OPINION AND ORDER DENYING MOTION to Vacate Under 28 U.S.C. 2255 by Defendant/Petitioner Craig Whigum. The Court DECLINES to issue a certificate of appealability. Signed by Judge Theresa L Springmann on 2/1/17. (cc: Craig Whigum). (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
UNITED STATES OF AMERICA
v.
CRAIG WHIGUM

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1:12-CR-87-TLS
(1:16-CV-202)

OPINION AND ORDER
The Defendant, Craig Whigum, is serving a sentence for Hobbs Act robbery, in violation
of 18 U.S.C. § 1951(a)(1), and using a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c). The Defendant now seeks to vacate his conviction and sentence
under § 924(c) [Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By
Person in Federal Custody, ECF No. 184]. His Motion is predicated on the Supreme Court’s
decision in Johnson v. United States, 135 S. Ct. 2551 (2015). The Defendant maintains that his §
924(c) conviction cannot stand after Johnson because his underlying offense is not a crime of
violence.
The Defendant filed his Motion on June 9, 2016—within the one-year period set forth in
§ 2255(f)(3), based on the Supreme Court’s June 26, 2015 decision in Johnson, which is
retroactively applicable to cases on collateral review. Welch v. United States, 136 S. Ct. 1257,
1265 (2016) (“Johnson is . . . a substantive decision and so has retroactive effect . . . in cases on
collateral review.”); Price v. United States, 795 F.3d 731, 734 (7th Cir. 2015) (Johnson
announced a new substantive rule which applies retroactively on collateral review). The Court
treats the Motion as timely filed.

ANALYSIS
Section 2255 allows a defendant to move to vacate, set aside, or correct a sentence that
was imposed in violation of the Constitution of the United States. See 28 U.S.C. § 2255(a).
Relief under § 2255 is “available only in extraordinary situations,” requiring an error of
constitutional or jurisdictional magnitude or a fundamental defect that resulted in a complete
miscarriage of justice. Blake v. United States, 723 F.3d 870, 878–79 (7th Cir. 2013).
To sustain a conviction under 18 U.S.C. § 924(c)(3), the government must prove that the
defendant (1) used or carried a firearm and (2) did so during and in relation to a “crime of
violence.” Under § 924(c)(3), the term “crime of violence” is “an offense that is a felony” that
(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). Subsection (A) is known as the elements clause, and
subsection (B) is referred to as the residual clause.
The substantive crime of violence (or drug trafficking crime) for which the person may
be prosecuted is identified in the § 924(c) charge. See Davila v. United States, 843 F.3d 729, 731
(7th Cir. 2016) (noting that a § 924(c) offense is a stand-alone crime, not a sentencing
enhancement, for which no underlying conviction needs to be obtained). Here, the Indictment
identifies the predicate crime of violence as Hobbs Act robbery, in violation of 18 U.S.C.
§ 1951(a).
A defendant violates the Hobbs Act if he:
obstructs, delays, or affects commerce or the movement of any article or commodity
in commerce, by robbery or extortion or attempts or conspires so to do, or commits
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or threatens physical violence to any person or property in furtherance of a plan or
purpose to do anything in violation of this section.
18 U.S.C. § 1951(a). “Robbery,” in turn, 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, immediate or future, to his person or property, or property
in his custody or possession, or the person or property of a relative or member of his
family or of anyone in his company at the time of the taking or obtaining.
18 U.S.C. § 1951(b)(1).
As already stated, the Defendant’s Motion invokes the Supreme Court’s decision in
Johnson, which held that the residual clause of the definition of a “violent felony” in the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), is unconstitutionally vague. 135 S. Ct.
at 2557 (invalidating the phrase “or otherwise involves conduct that presents a serious potential
risk of physical injury to another”). The Defendant was not sentenced under the ACCA, but he
claims that Hobbs Act robbery no longer qualifies as a crime of violence under § 924(c)(3) based
on Johnson’s reasoning.
First, he argues that the holding in Johnson necessarily rendered the residual clause of
§ 924(c)(3)(B) unconstitutionally vague. That argument has merit. See United States v. Cardena,
842 F.3d 959, 996 (7th Cir. 2016) (holding that the residual clause in 18 U.S.C. § 924(c)(3)(B) is
unconstitutionally vague). However, it is not necessary to rely on the residual clause in this case
because Hobbs Act robbery under § 1951(a) is a crime of violence under § 924(c)’s elements
clause. In United States v. Anglin, — F.3d —, 2017 WL 359666 (7th Cir. Jan. 25, 2017), the
Seventh Circuit joined an “unbroken consensus of other circuits” when it ruled that “Hobbs Act
robbery is a ‘crime of violence’ within the meaning of § 923(c)(3)(A).” 2017 WL 359666, at *7.
The court noted that the relevant definition of Hobbs Act robbery, the Defendant’s predicate
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offense, is the “taking of personal property ‘by means of actual or threatened force, or violence,
or fear of injury, immediate or future, to his person or property.’” 2017 WL 359666, at *7
(quoting 18 U.S.C. § 1951(b)). The court found that “[c]ommitting such an act necessarily
requires using or threatening force.” Id.
Because Hobbs Act robbery is crime of violence, the Court finds no basis to vacate the
Defendant’s firearm conviction under 18 U.S.C. § 924(c).

CONCLUSION
For the reasons stated above, the Court DENIES the Defendant’s Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By Person in Federal Custody [ECF No.
184]. Because reasonable jurists would not debate that the Motion fails to present a valid claim
of the denial of a constitutional right, or that the Motion should have been resolved in a different
manner, the Court DECLINES to issue a certificate of appealability pursuant to 28 U.S.C. §
2253(c)(3).
SO ORDERED on February 1, 2017.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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