Vatuvei v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH SIONE VATUVEI, MEMORANDUM DECISION AND

ORDER DENYING PETITIONER’S

Petitioner, MOTION UNDER 28 U.S.C. § 2255 TO

VACATE, SET ASIDE, OR CORRECT

v. SENTENCE BY A PERSON IN FEDERAL

CUSTODY UNITED STATES OF AMERICA,

Case No. 2:20-CV-607 TS Criminal Case No. 2:09-CR-758 DB

Respondent.

District Judge Ted Stewart

This matter is before the Court on Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. For the reasons discussed below, the Court will deny the Motion and dismiss this case.

I. BACKGROUND Petitioner was convicted of discharging a firearm during and in relation to a Hobbs Act Robbery in violation of 18 U.S.C § 924(c) and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Petitioner now argues that his underlying § 924(c) conviction is no longer a crime of violence in light of United States v. Davis.1

II. DISCUSSION Petitioner asserts that his conviction under 18 U.S.C. § 924(c) is no longer a crime of violence. In United States v. Davis, the Supreme Court held that the crime of violence definition in § 924(c)(3)(B) was unconstitutionally vague.2 However, the definition of crime of violence in

§ 924(c)(3)(A) remains valid. The United States Court of Appeals for the Tenth Circuit has repeatedly held that Hobbs Act Robbery, Petitioner’s predicate offense, is categorically a crime of violence under § 924(c)(3)(A).° The Tenth Circuit has continued to so hold after Davis.* Because Petitioner’s § 924(c) conviction remains valid under the elements clause of § 924(c)(3){A), his Motion fails.

Ill. CONCLUSION It is therefore ORDERED that Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Docket No. | in Case No. 2:20-CV-607 TS) is DENIED and DISMISSED. It is further

ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an evidentiary hearing is not required. It is further

ORDERED that pursuant to Rule 11(a) of the Rules Governing § 2255 Cases, the Court DENIES Petitioner a certificate of appealability.

DATED this 8th day of January, 2021.

BY THE COURT: Uarted States District Judge