United States District Court, E.D. Texas, Beaumont Division
MEMORANDUM OPINION AND ORDER
Heartfield, United States District Judge.
Edmon Gasaway, an inmate currently confined at FCI
Victorville, proceeding pro se, filed this motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
& PROCEDURAL BACKGROUND
16, 1996, a federal grand jury returned a seventeen-count
indictment against movant and four co-defendants. Count 1
charged movant with interference of commerce by threats or
violence (Hobbs Act conspiracy), in violation of 18 U.S.C.
§ 1951(a); Count 14 charged him with interference with
commerce by threats and violence (Hobbs Act robbery), in
violation of 18 U.S.C. § 1951(a); and Count 15 charged
him with using and carrying a firearm in relation to a crime
of violence, in violation of 18 U.S.C. § 924(c). The
grand jury later returned a second superseding indictment in
which the basic charges against movant did not change, but
added two additional counts against him: Count 16, which
charged movant with interference with commerce by threats and
violence (Hobbs Act robbery), in violation of 18 U.S.C.
§ 1951(a), and Count 17, which charged movant with using
and carrying a firearm in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c). A third superseding
indictment was returned on October 18, 1996, but the
essential charges against movant did not change. Movant went
to trial on the third superseding indictment, and on November
8, 1996, the jury convicted him on all five counts.
calculated movant's total offense level for the Hobbs Act
conspiracy and robberies (Counts 1, 14, and 16) to be 24
under the 1996 version of the U.S. Sentencing Guidelines
Manual. There were no adjustments under the career offender
guideline, U.S.S.G. § 4B1.1, or the armed career
criminal guideline, U.S.S.G. § 4B1.4. The mandatory
statutory sentence for movant's first § 924(c) count
(Count 15) was a five year term of imprisonment. Movant's
second § 924(c) count (Count 17) carried a mandatory
statutory term of imprisonment for twenty years.
criminal history category was II. At level 24, this yielded a
guideline sentencing range of a 57-71 month term of
imprisonment for the Hobbs Act counts. The guideline range
for the first § 924(c) count was five years, which was
required to be served consecutively. The range for the second
§ 924(c) count was twenty years, which was also required
to be consecutive.
March 3, 1997, the Court sentenced movant to an 87 month term
of imprisonment for the Hobbs Act counts; a 60 month term of
imprisonment for the first § 924(c) count, to be served
consecutively; and a 240 month term of imprisonment for the
second § 924(c) count, also to be served consecutively.
The Court entered judgment on March 5, 1997. Movant appealed.
The Fifth Circuit affirmed and the Supreme Court denied his
petition for writ of certiorari.
3, 2002, movant filed a motion under 28 U.S.C. § 2255,
which was assigned No. 1:02-CV-403. This first motion to
vacate, set aside or correct sentence was denied. Movant
filed three additional § 2255 motions in 2013, which
26, 2015, the Supreme Court decided Johnson v. United
States, in which it held that the “residual
clause” definition for “violent felony” in
the Armed Career Criminal Act, 18 U.S.C. § 924(e), is
unconstitutionally vague. 135 S.Ct. at 2563. After obtaining
permission from the Fifth Circuit to file another Section
2255 based on Johnson, movant filed the present
§ 2255 motion on June 13, 2016. Specifically, movant
claims that Johnson rendered his Section 924(c)
convictions invalid, arguing that the Hobbs Act conspiracy
offense for which he was convicted is no longer a crime of
violence under the definition found in 18 U.S.C. §
September 2, 2016, this Court ordered the Government to show
cause. The Government filed a Response on November 3, 2016,
arguing movant's claims were not cognizable on collateral
review as the Supreme Court had not yet addressed whether
Johnson applied to § 924(c) or, if so, whether
it may be applied on collateral review. The Government noted
that the Supreme Court would be deciding whether
Johnson applied to career offenders under the
sentencing guidelines, U.S.S.G. § 4B1.1, and, if so,
whether it applied retroactively on collateral review in
Beckles v. United States, No. 15-8544 (June 27,
November 29, 2016, movant filed a motion to stay and
reconsider pending the Supreme Court rulings in
Beckles and Dimaya. Movant filed a Reply to
the Government's Response on January 23, 2017, arguing
his motion should be granted in light of Ninth Circuit Court
of Appeals in Dimaya v. Lynch, 803 F.3d 1110 (9th
Cir. 2015). On September 18, 2017, this Court denied
movant's motion to stay as it appeared neither
Beckles nor Dimaya would provide movant any
Supreme Court decided Dimaya on April 17, 2018.
Dimaya v. Sessions, 138 S.Ct. 1204 (2018) In
Dimaya, the Supreme Court held that the residual
clause of the federal criminal code's definition of
“crime of violence, ” as incorporated into the
Immigration and Nationality Act's (INA) definition of
aggravated felony, was impermissibly vague in violation of
due process. Id.
then filed a Supplemental Response on May 29, 2018, arguing
the Supreme Court in Dimaya did not limit its
holding to § 16(b) and ...