Brown v. USA

Filing 8

ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Mario Brown. A certificate of appealability is denied. Signed on 8/25/16 by Chief District Judge Greg Kays. (Strodtman, Tracy)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
MARIO BROWN,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 16-CV-638-W-DGK
(Crim. No. 11-CR-0095-W-DGK-1)

ORDER DENYING MOTION FOR POST-CONVICTION RELIEF
Movant Mario Brown (“Brown”) pled guilty to attempted robbery under the Hobbs Act
(“Hobbs Act robbery”) and to brandishing a weapon in furtherance of a “crime of violence.” See
18 U.S.C. §§ 1951(a), 924(c). Specifically, the Court found Brown’s Hobbs Act robbery was the
“crime of violence” required for the brandishing conviction. The Court sentenced him to 37
months’ imprisonment for the robbery and 84 months—the statutory minimum—for the
brandishing. Brown did not appeal.
Before the Court is Brown’s amended motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255 (Doc. 6). He argues that in light of a somewhat recent Supreme Court
case, Hobbs Act robbery is not a “crime of violence” that could expose him to criminal liability
for brandishing. He believes his conviction is unlawful and should now be vacated.
As explained below, an Eighth Circuit decision from two months ago forecloses Brown’s
argument. The Court DENIES the motion and DENIES a certificate of appealability.

Discussion
If a defendant brandishes a firearm while committing a “crime of violence,” then he is
subject to a higher mandatory minimum sentence. 18 U.S.C. § 924(c)(1)(A)(ii). A “crime of
violence” 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.
Id. § 924(c)(3). Subsection A is known as the force clause; Subsection B is the residual clause.
Brown argues that neither clause applies to his Hobbs Act robbery, so there is no basis
for his brandishing conviction. The Court assumes without deciding that Brown is right about
the residual clause. Turning to the force clause, Brown argues that Hobbs Act robbery may be
committed in ways not involving “the use, attempted use, or threatened use of physical force
against the person or property of another”—for example, by threatening injury to another’s
intangible property. Because Hobbs Act robbery is overinclusive of the force clause, Brown
argues, the Court erroneously categorized his robbery conviction as a crime of violence.
Whatever the appeal of Brown’s argument, the Eighth Circuit rejected it twenty years
ago: “Hobbs Act robbery qualifies as a serious violent felony . . . .” United States v. Farmer, 73
F.3d 836, 842 (8th Cir. 1996). Brown tries to juke around Farmer with a 2010 Supreme Court
decision that he believes abrogated Farmer, but he is again leveled by the Eighth Circuit, which
affirmed Farmer’s vitality just two months ago. United States v. House, 825 F.3d 381 (8th Cir.
2016) (“[I]f we analyzed the lawfulness of [the defendant’s] sentence under § 924(c), we would
be bound by Farmer, where we concluded that Hobbs Act robbery has ‘as an element the use,
attempted use, or threatened use of physical force against the person of another.’” (internal

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citation omitted)).1 Hearing no argument that House is distinguishable, the Court is therefore
bound to follow Farmer.
Under Farmer, Brown’s Hobbs Act robbery is categorically a “crime of violence” as used
in the brandishing statute’s force clause. Therefore, Brown was not illegally sentenced for
brandishing a firearm. His motion is denied.
Because no reasonable jurist would grant any part of this motion, the Court denies Brown
a certificate of appealability. See Tennard v. Dretke, 542 U.S. 274, 276 (2004); 28 U.S.C.
§§ 2255, 2253(c)(2).
Conclusion
For the reasons above, Brown’s amended § 2255 motion (Doc. 6) is DENIED. A
certificate of appealability is DENIED.
IT IS SO ORDERED.
Date: August 25, 2016

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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Although the House court gave an alternative basis to uphold the sentence on review, the Farmer-related holding
still binds this Court. See Sutton v. Addressograph-Multigraph Corp., 627 F.2d 115, 117 n. 2 (8th Cir. 1980) (per
curiam) (“When two independent reasons support a decision, neither can be considered obiter dictum, each
represents a valid holding of the court.”).

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