Curtis Solomon v. United States
Opinion
*1357
Curtis Solomon appeals following the district court's denial of his authorized successive
I. PROCEDURAL HISTORY
A. Convictions, Direct Appeal, and First § 2255 Motion
In 2008, a federal grand jury charged Solomon with: (1) one count of conspiracy to commit Hobbs Act robbery, in violation of
Solomon pled not guilty and proceeded to trial. In 2009, following a 10-day trial, the jury found Solomon guilty on all but two of the charged counts, Counts 23 and 24. Thus, Solomon was convicted of: (1) one count of conspiracy to commit Hobbs Act robbery; (2) one count of conspiracy to carry a firearm during and in relation to, and to possess a firearm in furtherance of, the Hobbs Act conspiracy; (3) 16 substantive counts of Hobbs Act robbery; and (4) 16 substantive § 924(c) counts.
At Solomon's sentencing in 2009, the district court imposed a total sentence of 4,641 months' imprisonment. This sentence consisted of: (1) 57 months each as to Counts 1 (Hobbs Act conspiracy), 2 ( § 924(c) conspiracy), and 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 25, 27, 29, 31, 33, and 35 (substantive Hobbs Act robberies), to be served concurrently with each other; (2) a consecutive sentence of 84 months as to Count 4 (first substantive § 924(c) conviction); and (3) 300 months each as to Counts 6, 8, 10, 12, 14, 16, 18, 20, 22, 26, 28, 30, 32, 34, and 36 (additional § 924(c) convictions), to be served consecutive to each other and to all of the other counts.
Solomon appealed, raising several conviction issues and challenging the imposition of consecutive sentences on his substantive § 924(c) convictions.
See
United States v. Lewis
,
B. June 2016 Successive § 2255 Motion
On June 10, 2016, Solomon filed an application for leave to file a successive § 2255 motion with this Court. In relevant part, Solomon's June 2016 application sought to challenge his § 924(c) convictions and sentences in light of the Supreme Court's decision in Johnson , which invalidated the residual clause of the Armed Career Criminal Act ("ACCA") as unconstitutionally vague.
On July 8, 2016, this Court denied in part and granted in part Solomon's application. This Court denied Solomon's application as to his substantive § 924(c) convictions in Counts 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 26, 28, 30, 32, 34, and 36. Each of those convictions corresponded to a companion substantive Hobbs Act robbery conviction. Following our precedent in
In re Saint Fleur
,
This Court, however, granted Solomon's application as to his § 924(c) conspiracy conviction in Count 2 because that conviction corresponded to his Hobbs Act conspiracy conviction in Count 1. This Court explained that "an applicant has made a
prima facie
case, for purposes of second or successive review, when seeking to challenge a conviction for conspiracy to commit Hobbs Act robbery based on an argument that such a conviction meets only the residual clause of § 924(c)." (citing
In re Pinder
,
C. District Court Proceedings on Successive § 2255 Motion
Following this Court's order, Solomon's case was returned to the district court for adjudication of his authorized successive § 2255 motion. Solomon was represented by counsel in the district court. In July 2017, a magistrate judge issued a report and recommendation ("R&R") recommending that Solomon's successive § 2255 motion be denied. As to the merits of Solomon's claim, the magistrate judge determined, based on our then-recent decision in
Ovalles v. United States ("Ovalles I" )
,
Solomon objected to the R&R. Solomon argued that the district court should not rely on Ovalles I because (1) this Court had withheld the mandate in that case, indicating that it might be reheard en banc, and (2) Sessions v. Dimaya was then pending in the Supreme Court and might impact the reasoning applied in Ovalles I to distinguish § 924(c) from the ACCA. Solomon also contended that, even if Ovalles I correctly held that § 924(c)(3)(B) 's residual clause was constitutional, his § 924(c) conspiracy conviction was still invalid because Hobbs Act conspiracy did not qualify as a crime of violence under § 924(c)(3)(B) 's residual clause. Specifically, Solomon argued that any risk of injury that may occur in the context of a Hobbs Act conspiracy "arises from the object of the conspiracy, which is a separate and distinct offense that is temporally removed from the scope-of-the-risk analysis under § 924(c)(3)(B)." In other words, Solomon contended that the Hobbs Act conspiracy itself does not require proof of any overt act and thus a conspiracy poses no risk of injury.
The government responded that Ovalles I was binding precedent regardless of whether the mandate had issued and should be applied in Solomon's case. The government further asserted that Solomon's alternative argument-that Hobbs Act conspiracy did not qualify under the residual clause-was not cognizable in the context of a successive § 2255 motion. The government explained that this Court's grant of leave for Solomon to file a successive § 2255 motion was limited to his claim that his § 924(c) conviction in Count 2 was invalid in light of Johnson and did not encompass other challenges to the validity of that conviction.
Over Solomon's objections, the district court adopted the R&R's recommendation that Solomon's motion be denied "because Johnson does not apply to § 924(c)(3)(B)." However, the district court granted Solomon a COA "as to whether Johnson applies to § 924(c)(3)(B)." Solomon now appeals.
II. LEGAL BACKGROUND
The legal landscape in this case has developed since the district court ruled on Solomon's authorized successive § 2255 motion. We therefore detail those legal developments below before turning to the merits of Solomon's case.
Following the Supreme Court's decision in
Johnson
and this Court's decision in
Ovalles I
, the Supreme Court decided
Sessions v. Dimaya
. In
Dimaya
, the Supreme Court addressed whether
Johnson
's vagueness holding as to the ACCA's residual clause applied to and invalidated the residual clause in
After the Supreme Court issued its decision in
Dimaya
, this Court vacated the opinion in
Ovalles I
and granted rehearing en banc.
Ovalles v. United States
,
In
Ovalles II
, the en banc Court determined that § 924(c)(3)(B) 's residual clause can plausibly be interpreted to incorporate either a categorical or a conduct-based approach.
See
Ovalles II
,
Relying on
Ovalles II
, this Court has since held that a federal prisoner's proposed vagueness challenge to § 924(c)(3)(B) 's residual clause under
Johnson
and
Dimaya
could not satisfy the statutory requirements of § 2255(h).
In re Garrett
,
III. DISCUSSION
As a preliminary matter, we note that when this Court authorizes a federal prisoner to file a successive § 2255 motion in the district court, that authorization is a threshold determination and narrowly circumscribed. The successive motion does not stand in the place of a first § 2255 motion, allowing the movant to raise any claim that would have been cognizable in an original § 2255 proceeding. Rather, the claims raised in the successive § 2255 motion must still meet the requirements of § 2255(h).
See
Randolph v. United States
,
Furthermore, in making the § 2255(h) determination, the district court owes no deference to our order authorizing the movant to file a successive § 2255 motion.
Here, the district court denied Solomon's authorized successive § 2255 motion because it concluded, based on our then-applicable precedent in
Ovalles I
, that
Johnson
's vagueness holding did not apply to or invalidate § 924(c)(3)(B) 's residual clause. The district court framed this as a determination on the merits of Solomon's successive § 2255 motion. In essence, however, in concluding that
Johnson
did not apply to § 924(c)(3)(B), the district court effectively determined that Solomon's successive § 2255 motion failed to satisfy § 2255(h) 's requirements because, in light of
Ovalles I
,
Johnson
did not supply a new rule of constitutional law that could support Solomon's challenge to his § 924(c) conviction and sentence in Count 2.
See
Garrett
,
IV. CONCLUSION
For the foregoing reasons, the district court did not err in denying Solomon's authorized successive § 2255 motion, and we affirm.
AFFIRMED.
Subsequent to
Saint Fleur
, five other circuits have held that Hobbs Act robbery qualifies as a crime of violence under § 924(c)(3)(A) 's elements clause.
See
United States v. Barrett
,
In the interest of completeness, the magistrate judge went on to address whether, if Johnson did apply, Hobbs Act conspiracy would qualify under § 924(c)(3)(A) 's elements clause. The magistrate judge determined that it would not. The district court, however, did not adopt that portion of the magistrate judge's R&R, as it was unnecessary to the resolution of Solomon's successive § 2255 motion.
Reference
- Full Case Name
- Curtis SOLOMON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
- Cited By
- 12 cases
- Status
- Published