United States District Court, D. Nevada
January 4, 2017
UNITED STATES OF AMERICA, Plaintiff,
DESMOND QUINNTRAIL HAYES, Defendant.
C. Jones, United States District Judge.
jury indicted Defendant Desmond Hayes of two counts each of
interference with commerce by armed robbery under the Hobbs
Act, 18 U.S.C. § 1951, use of a firearm during and in
relation to a crime of violence under § 924(c)(1)(A)
(based on the Hobbs Act armed robberies), and possession of a
firearm by a convicted felon under §§ 922(g)(1) and
924(a)(2). (See Superseding Indictment, ECF No. 12).
Defendant pled guilty to the two counts of Hobbs Act armed
robbery and one count of use of a firearm during and in
relation to a crime of violence via plea agreement, and on
September 22, 2014, the Court adjudged him guilty of those
counts, sentencing him to consecutive 60-, 60-, and 120-month
terms of imprisonment, respectively. (See J. 1-2,
ECF No. 59). Plaintiff did not appeal. Plaintiff has now
asked the Court to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255.
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
of . . . the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review . . . .
28 U.S.C. § 2255(f), (f)(3). Defendant filed the motion
on June 17, 2016, which is within one year of June 26, 2015,
the date on which the Supreme Court announced the rule of
Johnson v. United States, 135 S.Ct. 2551 (2015) upon
which Defendant relies. The Supreme Court has made
Johnson retroactive on collateral review. See
Welch v. United States, 136 S.Ct. 1257, 1268 (2016). The
Court finds that although the motion is statutorily timely,
it is without merit, even assuming the ability to bring it
had not been waived.
motion fails because collateral attacks, specifically those
under § 2255, were waived via the plea agreement, except
those based on ineffective assistance of counsel.
(See Plea Agreement 11:7-10, ECF No. 45). Even if
not waived, the claim would be without merit. Defendant
argues the Hobbs Act armed robbery that formed the basis for
the firearm offense was not a “crime of violence”
under 18 U.S.C. § 924(c)(3) because the residual clause
defining “crime of violence” is similar to the
residual clause of § 924(e)(2), which the Supreme Court
has struck down as unconstitutionally vague. See
Johnson, 135 S.Ct. 2551, 2563 (2015). The definition of
“crime of violence” applied to Defendant reads as
follows, with the allegedly unconstitutionally vague residual
(3) For purposes of this subsection the term “crime of
violence” means 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 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) (emphasis added). The
definition of “violent felony” at issue in
Johnson reads as follows, with the
unconstitutionally vague residual clause emphasized:
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another
Id. § 924(e)(2)(B)(i)-(ii) (emphasis added).
The language of the two clauses is not identical, but even
assuming for the sake of argument that the difference in
language is not enough to rescue § 924(c)(3)(B) from
constitutional infirmity, Johnson is no aid to
Defendant, because the physical-force clause of §
924(c)(3)(A) applies to Hobbs Act robbery, at least under the
residual clause. See United States v. Mendez, 992
F.2d 1488, 1491 (9th Cir. 1993) (citing 18 U.S.C.
§1951(b)(1)) (“[Hobbs Act r]obbery indisputably
qualifies as a crime of violence.”). The Court of
Appeals has reaffirmed the conclusion in an unpublished
opinion since Johnson issued. See
United States v. Howard, 650 Fed.Appx. 466, 468 (9th
Cir. May 23, 2016) (citing United States v.
Selfa, 918 F.2d 749 (9th Cir. 1990)) (holding that Hobbs
Act robbery qualifies as a crime of violence under the
physical force clause). The Courts of Appeals to address the
issue in published opinions since Johnson issued are
in accord that Hobbs Act robbery is a categorical crime of
violence under the physical force clause. See United
States v. Hill, 832 F.3d 135, 140-44 (2nd Cir. 2016);
In re Fleur, 824 F.3d 1337, 1341 (11th Cir. 2016).
The Court finds no basis to believe the Court of Appeals
would rule to the contrary in a published opinion.
HEREBY ORDERED that the Motion to Vacate, Set Aside or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF Nos.
61, 62) is DENIED.
FURTHER ORDERED that a certificate of appealability is