United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
KINKEADE, UNITED STATE DISTRICT JUDGE.
Jerry Ware (“Ware”) filed a pro se
motion to vacate, set aside, or correct sentence under 28
U.S.C. § 2255. As detailed herein, the motion to vacate
sentence is DENIED.
pled guilty to Counts Two and Four, using and carrying a
firearm in relation to a crime of violence under 18 U.S.C.
§§ 924(c)(1)(A)(ii) and 924(c)(1)(C)(i) (second or
subsequent), predicated on substantive Hobbs Act robberies.
He was sentenced to 312 months' imprisonment-84 months on
Count Two to be followed by 228 months on Count Four.
United States v. Ware, No. 3:15-CR-40-K-2 (N.D. Tex.
June 29, 2016), appeal dism., 676 Fed.Appx. 381 (5th
Cir. Feb. 21, 2017) (per curiam).
timely filed this Section 2255 motion claiming (1) counsel
rendered ineffective assistance in failing to challenge the
residual-clause definition of “crime of violence”
in 18 U.S.C. § 924(c)(3)(B) based on Johnson v.
United States, ___ U.S. ___, 135 S.Ct. 2551, 2563
(2015), and (2) his sentences were unconstitutional. Doc. 1.
The Government filed a response in opposition. Doc. 9. With
the assistance of counsel, Ware filed a second amended
Section 2255 motion, asserting his Section 924(c) convictions
are invalid under United States v. Davis, ___ U.S.
___, 139 S.Ct. 2319 (2019), and that counsel was
constitutionally ineffective in failing to challenge his
convictions. Doc. 21. The Government again opposes relief.
substantive Hobbs Act robbery qualifies as a crime of
violence under the elements clause of Section 924(c), the
Court concludes Ware is not entitled to relief on his claims.
Sixth Amendment to the United States Constitution guarantees
a defendant reasonably effective assistance of counsel at all
critical stages of a criminal proceeding. See Cuyler v.
Sullivan, 446 U.S. 335, 344 (1980). To obtain
post-conviction relief on a claim that defense counsel was
constitutionally ineffective, a defendant must prove that
counsel's representation “fell below an objective
standard of reasonableness” and that any such
deficiency was “prejudicial to the defense.”
Strickland v. Washington, 466 U.S. 668, 688, 692
(1984). Failure to establish either deficient performance or
prejudice defeats the claim. Id. at 697.
924(c) criminalizes the carrying, use, or discharge of a
firearm during, or in furtherance of, any “crime of
violence” or “drug trafficking crime.”
See 18 U.S.C. § 924(c)(1). 18 U.S.C. §
924(c)(3) defines the term “crime of violence” to
[A]n 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.
United States v. Davis, 139 S.Ct. 2319 (2019), the
Supreme Court recently held that the residual clause of
§ 924(c)(3)(B) is unconstitutionally vague. But
Ware's Section 924(c) convictions are predicated upon
substantive Hobbs Act robberies-notconspiracy to commit Hobbs Act robbery-which the
Fifth Circuit previously found qualify as crimes of violence
under Section 924(c)(3)(A)'s elements clause. See
United States v. Bowens, 907 F.3d 347, 353-54 (5th Cir.
2018), cert. denied, 139 S.Ct. 1299 (2019)
(“[B]inding circuit precedent forecloses
[Defendant's] claim that Hobbs Act robbery is not a
[crime of violence] predicate under 18 U.S.C. §
924(c)(3)(A)” (citing United States v. Buck,
847 F.3d 267, 275 (5th Cir. 2017)); United States v.
Davis, 903 F.3d 483, 485 (5th Cir. 2018) (per curiam),
aff'd in partand vacated ...