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3. 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 || UNITED STATES OF AMERICA, 11 Plaintiff, Case No. 2:13-cr-00351-LDG (VCF) v. ORDER 13 QUINCY STEPHENS, 14 Defendant. 15 16 Presently before the court is defendant Quincy Stephens’ motion to vacate, set 17 || aside, or correct sentence pursuant to

. (ECF Nos. 46, 47). The 18 || government filed a response (ECF No. 49), to which Stephens replied (ECF No. 51). 19 I. Background 20 Stephens pled guilty to five counts of interference with commerce by robbery (‘Hobbs Act robbery”) under

, as charged in Counts 1, 3, 5, 7, and 9 of 22 || the indictment. He also pled guilty to a single count of carrying and use of a firearm durir 23 || and in relation to a crime of violence under

(c), specifically the interferenc 24 || with commerce by robbery charged in Count 9 of the indictment. This Court sentenced 25 || Stephens to 67 months of imprisonment as to each of the Hobbs Act robbery convictions 26 || to be served concurrently. The Court also found that, as to Stephens’ conviction in Cour

1 || 10 for violating §924(c) by carrying and use of a firearm during and in relation to a crime o 2 || violence, his conviction on Count 9 for the Hobbs Act robbery qualified as a “crime of 3 | violence.” Accordingly, the Court imposed an 84-month term of imprisonment as to the 4 || §924(c) conviction to be served consecutive to the sentence for the Hobbs Act robbery 5 || convictions, resulting in a total term of imprisonment of 151 months. 6 In the instant motion, Stephens moves to vacate his §924(c) conviction and 7 || sentence pursuant to Johnson v. United States,

(2015), and requests that 8} the court resentence him to 67 months imprisonment as to his conviction on the five count 9 || of Hobbs Act robbery. 10 Il. Analysis 11 A federal prisoner may move to “vacate, set aside or correct” his sentence if it “was 12 || imposed in violation of the Constitution.”

(a). When a petitioner seeks 13] relief pursuant to a right recognized by a United States Supreme Court decision, a 14 || one-year statute of limitations for seeking habeas relief runs from “the date on which the 15 || right asserted was initially recognized by the Supreme Court.”

(f)(3). Th 16 petitioner bears the burden of demonstrating that his petition is timely and that he is entitle 17 || to relief. 18 In Johnson, the United States Supreme Court held that the residual clause in the 19 || definition of a “violent felony” in the Armed Career Criminal Act of 1984,

|| 924(e)(2)(B) (“ACCA”), is unconstituticnally vague.

. The ACCA defines “violent felony” as any crime punishable by imprisonment for a term exceeding one year, 22 || that: 23 (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 25 involves conduct that presents a serious potential risk of physical injury to another. 26 ve ;

(e)(2)(B). Subsection (ii) above is known as the ACCA's “residual clause.’ 2 || Johnson,

. The Supreme Court held that “increasing a defendant's 3 || sentence under the clause denies due process of law.” /d. at 2557. 4 Stephens was not, however, sentenced pursuant to ACCA. Rather, he was 5 || convicted of violating

(c) for carrying and use of a firearm during and in 6 || relation to a crime of violence. Section 924(c)(3) provides: 7 the term “crime of violence” means an offense that is a felony and— 8 (A) has as an element the use, attempted use, or threatened 9 use of physical force against the person or property of another,

10 (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in 11 the course of committing the offense. 12 || As with the ACCA, subsection (a) is referred to as the force clause while subsection (B) is 13 || referenced as the residual clause. Stephens argues that Johnson is equally applicable to 14 || §924(c) cases and that his instant motion is timely as it was filed within one year of 15 || Johnson. The Ninth Circuit, however, subsequently held to the contrary. When Stephens 16 || filed his present motion, “[t]he Supreme Court [had] not recognized that § 924(c)’s residue 17 || clause is void for vagueness in violation of the Fifth Amendment.” United States v. 18 || Blackstone,

(9" Cir. 2018). As indicated by the Ninth Circuit, “[t]he 19 || Supreme Court may hold in the future that Johnson extends to sentences imposed... 20 || pursuant to

(c), but until then [defendant’s}] motion is untimely.” /d. 21 |; Accordingly, Stephens’ motion was premature when it was filed. 22 The Supreme Court has, however, subsequently applied the principles first □□□□□□□□ 23 || in Johnson to the residual clause of §924(c), holding “that § 924(c)(3)(B) is 24 || unconstitutionally vague.” United States v. Davis,

(2019). 25 || Accordingly, while Stephens’ motion was premature when it was filed, the Court will now 26 || consider the motion as timely given the Supreme Court’s decision in Davis, extending the

principles of Johnson to §924(c), and will treat the motion as if filed seeking relief pursuant 2 || to Davis. □ 3 Stephens asserts that his conviction is not subject to the provisions of § 924(c)(3) 4 || because his underlying conviction (Hobbs Act robbery) does not constitute a “crime of 5 || violence.” He argues that his §924(c) conviction and sentence is unconstitutional under 6 || Davis because a Hobbs Act robbery cannot constitute a crime of violence without relying 7 || on the residual clause. The court disagrees. 8 Stephens argues that a Hobbs Act robbery cannot categorically fall under the force 9 || clause of § 924(c)(3)(A) “[o]ecause a “Hobbs Act robbery . . . can be committed by any 10 |) amount of force necessary to accomplish the taking, it does not necessarily require the us 11 || of violent force.” Prior to the Supreme Court's holding in Davis, the Ninth Circuit held that 12 || Hobbs Act “[rlobbery indisputably qualifies as a crime of violence” under § 924(c). United States v. Mendez,

(9th Cir. 1993). In 2016, the Ninth Circuit was 14 || confronted with essentially the same argument that Stephens raises here, that “because 15 || Hobbs Act robbery may also be accomplished by putting someone in ‘fear of injury,’ 18 16 || U.S.C. § 1951(b), it does not necessarily involve ‘the use, attempted use, or threatened 17 || use of physical force,’

(c)(3)(A).” United States v. Howard, 650 Fed □□□□ 18 || 466, 468 (9th Cir. 2016). The Ninth Circuit held that Hobbs Act robbery nonetheless qualified as a crime of violence under the force clause: 20 [Petitioner's] arguments are unpersuasive and are foreclosed by United States v. Selfa,

(9th Cir. 1990). In Se/fa, we held that the 21 analogous federal bank robbery statute, which may be violated by “force and violence, or by intimidation,”

(a) (emphasis added), qualifies 22 as acrime of violence under U.S.S.G. § 4B1.2, which uses the nearly identical definition of “crime of violence” as § 924(c). Selfa,

. 23 We explained that “intimidation” means willfully “to take, or attempt to take, in such a way that would put an ordinary, reasonable person in fear of bodily 24 harm,” which satisfies the requirement of a “threatened use of physical force” under § 4B1.2. Id. (emphasis added) (quoting United States v. Hopkins, 703

, 1103 (9th Cir. 1983)). Because bank robbery by “intimidation’—which is defined as instilling fear of injury—qualifies as a crime 26

1 of violence, Hobbs Act robbery by means of “fear of injury” also qualifies as [a] crime of violence. 2 ||

3 The Court holds that a Hobbs Act robbery constitutes a crime of violence under § 4 |) 924(c)(3)'s force clause. Under the elements set forth in the language of § 1951, 5 || Stephens’ underlying felony offense (Hobbs Act robbery) is a “crime of violence” because 6 || the offense has, “as an element the use, attempted use, or threatened use of physical 7 || force against the person or property of another.”

(c)(3)(A). Therefore, 8 || Davis is inapplicable here because Stephens’ conviction and sentence do not rest on the 9 || residual clause of § 924(c). Accordingly, Stephens’ motion, which rests upon the premise 10 || that his conviction rests upon the residual clause of §924(c), is without merit. 11 Certificate of Appealability 12 To appeal this order, Stephens must receive a certificate of appealability. 28 U.S.C § 2253(c)(1)(B); Fed. R. App. P. 22(b)(1); 9th Cir. R. 22—1(a). To obtain that certificate, h “must make a substantial showing of the denial of a constitutional right, a demonstration that... includes showing that reasonable jurists could debate whether (or, for that matter 16 || agree that) the petition should have been resolved in a different manner or that the issues 17 || presented were adequate to deserve encouragement to proceed further.” Slack v. 18 || McDaniel,

(2000) (quotation omitted). This standard is “lenient.” 19 || Hayward v. Marshall,

(9th Cir. 2010) (en banc). 20 The Court will deny the certificate of appealability for the same reasons that it has 21 || denied Stephens’ claims. Reasonable jurists would not find the Court's determination tha 22 || the Ninth Circuit has held that a Hobbs Act robbery is a crime of violence pursuant to the 23 || force clause of §924(c) is debatable, wrong, or deserving of encouragement to proceed 24 || further. Accordingly, the court will decline to issue a certificate of appealability. 25 Therefore, for good cause shown, 26

1 THE COURT ORDERS that the United States’ Motion for Leave to Advise the Court 2 || of Relevant New Authority (ECF No. 53) is GRANTED; 3 THE COURT FURTHER ORDERS that Quincy Stephens’ Motion to Stay His Motior to Vacate Pending Resolution of Published Ninth Circuit Decision (ECF no. 54) is DENIED 5 || as moot; 6 THE COURT FURTHER ORDERS that Quincy Stephens’ Motion to Vacate, Set 7 || Aside, or Correct Sentence Pursuant to

(ECF Nos. 46, 47) is DENIED; 8 THE COURT FURTHER ORDERS that the Clerk of Court shall enter a separate Civ Q || judgment denying defendant Quincy Stephens’

motion. The Clerk also 40 || shall file this order and the civil judgment in this case and in the related civil case number 11 || 2:16-cv-1452-LDG. 12 THE COURT DECLINES to issue a Certificate of Appealability. 13 1411 DATED this SS day of February, 2020. ~ ‘ied: EH □□□ 16 Lloyd D. George 47 United States District Judge

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