United States District Court, D. Colorado
ORDER DENYING DEFENDANT'S MOTION TO
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Joshua Smith's
Motion to Vacate pursuant to 28 U.S.C. § 2255 and
Johnson v. United States, 135 S.Ct. 2551 (2015).
(Doc. # 394). Because Hobbs Act robbery is a crime a violence
under the force clause of 18 U.S.C. § 924(c)(3)(A),
Johnson does not entitle Mr. Smith to relief and the
Court denies the motion.
MR. SMITH'S PREVIOUS CONVICTION
2013, Mr. Smith was convicted by a jury of two counts of
Hobbs Act robbery pursuant to 18 U.S.C. § 1951(a) and
two counts of discharging a firearm in furtherance of a crime
of violence pursuant to § 924(c). (Doc. ## 324, 393
at 1-2.) Hobbs Act robbery was the underlying “crime of
violence” that formed the basis of the 924(c) counts.
Section 924(c)(3) defines a 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
(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.
(A) is commonly known as the force clause, and subsection (B)
is known as the residual clause.
Court sentenced Mr. Smith to twelve months on each Hobbs Act
robbery count (to run concurrently) and 420 months for the
924(c) counts) (Id. at 3.)
JOHNSON AND WELCH
2015, the Supreme Court decided Johnson, 135 S.Ct. 2551,
which examined 18 U.S.C. § 924(e)(1) of the Armed
Criminal Career Act (ACCA). Section 924(3)(1) mandates a
15-year minimum sentence for anyone convicted of
felon-in-possession who “has three previous convictions
. . . for a violent felony.” The ACCA defines a violent
any crime punishable by imprisonment for a term exceeding one
year . . . if committed by an adult, that -
(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 ...