United States District Court, E.D. Texas, Beaumont Division
JYI R. MCCRAY
UNITED STATES OF AMERICA
MEMORANDUM OPINION AND ORDER
HEARTFIELD UNITED STATES DISTRICT JUDGE.
Jyi R. McCray, an inmate currently confined at FCC Yazoo
City, 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. Movant was
charged with conspiring to interfere with commerce by threats
and violence (Hobbs Act conspiracy), in violation of 18
U.S.C. § 1951 (Count 1); interference with commerce by
threats and violence (Hobbs Act robbery), in violation of 18
U.S.C. § 1951 (Counts 2, 14, and 16); and using and
carrying a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1) (Counts
3, 15, and 17). The grand jury returned a superseding
indictment that did not change the charges against movant.
The grand jury later returned a second superseding indictment
and, then, a third, neither of which altered the charges
against movant. Movant went to trial on the third superseding
indictment, and a jury convicted movant on all counts.
Presentence Report calculated movant's total offense
level for the Hobbs Act conspiracy and robberies (Counts 1,
2, 14 and 16) to be 25 under the 1996 version of the U.S.
Sentencing Guidelines Manual. There were no adjustments under
the career offender guidelines, U.S.S.G. § 4B1.1, or the
armed career criminal guidelines, U.S.S.G. § 4B1.4. The
mandatory statutory sentence for movant's first Section
924(c) count (Count 3) was five years' imprisonment. The
mandatory statutory sentence for each of movant's other
Section 924(c) counts (Counts 15 and 17) was twenty
criminal history category was I. At offense level 24, this
yielded a guideline sentencing range of 57-71 months'
imprisonment for the Hobbs Act counts. The guideline range
for the first Section 924(c) count was 60 months (five
years), which was required to be served consecutively. The
guideline range for each of the other Section 924(c) counts
was 240 months (twenty years), both of which were required to
be served consecutively to all other counts.
sentencing hearing on February 9, 1997, the offense level for
the Hobbs Act counts was increased to 27, which yielded a
guideline range of 70-87 months' imprisonment. The Court
sentenced movant to 87 months' imprisonment for the Hobbs
Act counts, to be served concurrently; 60 months'
imprisonment for the first Section 924(c) count (Count 3), to
be served consecutively; and 240 months for each of the other
Section 924(c) counts (Counts 15 and 17), to be served
consecutively to all other counts. The judgment was entered
on February 26, 1997. Movant appealed and the Fifth Circuit
Court of Appeals affirmed the conviction and sentence.
Movant's subsequent petition for writ of certiorari was
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. 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. § 924(c)(3).
November 3, 2016, this Court ordered the Government to show
cause. The Government filed a Response on December 15, 2016,
arguing movant's claims were not cognizable 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, 2016).
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 June 1, 2018, arguing
the Supreme Court in Dimaya did not limit its
holding to § 16(b) and that § 924(c)(3)(B) is void
for vagueness. This Court entered a Supplemental Show Cause
order on November 20, 2018. The Government filed a Response
on December 11, 2018, arguing the present motion to vacate,
set aside, or correct sentence is successive or,
alternatively, without merit.
§ 2255 motion is the primary means of collateral attack
on a federal sentence. Pack v. Yusuff, 218 F.3d 448,
451 (5th Cir. 2000) (quotation omitted). There are four
cognizable grounds upon which a federal prisoner can bring a
§ 2255 motion to vacate, set aside, or correct a
sentence: (1) constitutional issues, (2) challenges to the
district court's jurisdiction to impose the sentence, (3)
challenges to the length of a sentence in excess of the
statutory maximum, and (4) claims that the sentence is
otherwise subject to collateral attack. 28 U.S.C. §
2255(a); United States v. Placente, 81 F.3d 555, 558
(5th Cir. 1996). “Relief under 28 U.S.C.A. § 2255
is reserved for transgressions of constitutional rights and
for a narrow range of injuries that could not have been
raised on direct appeal and would, if condoned, result in a
complete miscarriage ...