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United States v. Smith

United States District Court, D. Colorado

November 30, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
JOSHUA SMITH, Defendant-Movant.

          ORDER DENYING DEFENDANT'S MOTION TO VACATE

          CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         A. MR. SMITH'S PREVIOUS CONVICTION

         In 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).[1] (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 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.

         Subsection (A) is commonly known as the force clause, and subsection (B) is known as the residual clause.

         The 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.)

         B. JOHNSON AND WELCH

         In 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 felony as:

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 ...

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