Defendant received via of a plea deal 8yrs. for 18 U.S.C. 924(c) and 25yrs for 18 U.S.C. 924(c) (enhancement) All the HOBBS ACT robberies counts were dismissed accordingly via the plea agreement. Defendant was thus convicted under 2 counts of 924(c) standing alone.
In light of U.S Supreme Court v. Johnson...if Hobbs Act is still considered a crime of violence, should it still be once Hobbs Act is dismissed and defendant is only convicted under 2 924(c)'s standing alone?
Johnson v. U.S. did not address the Hobbs Act, and robbery remains a crime of violence. This is also an issue better raised with your attorney. Best of luck!
I do not understand the question. I looks like you are saying the defendant was charged with several Hobbs Act robberies(18 USC 1951) and at least two charges for carrying or using a firearm in the course of the Hobbs Act robberies in violation of 18 USC 924(c). The defendant pled guilty to the 924(c) charges and got 8 years on the first and the mandatory minimum of 25 years for the second. The Hobbs Act robberies were dismissed.
Your question really appears to have two parts. First, how can the defendant be sentenced under 924(c) when the crimes of violence (the robberies) were dismissed. Second, you are asking whether U.S. v. Johnson, 576 U.S. ___ (2015), changes whether the Hobbs Act robberies can be considered crimes of violence under 924(c)(3).
The answer to the first question is pretty straight forward. If the defendant agreed to the 924(c) charges they do not have to convict the defendant of the Hobbs Act robberies and they can be dismissed. Dismissing the charges does not mean the crime did not happen. In this case the defendant agreed the crimes happened.
The second question is more interesting. Johnson itself did not directly address 924(c) charges, only convictions under 924(e). Johnson held that a portion of 924(e)(2)(B)(ii) is unconstitutionally vague. Specifically, Johnson said that the phrase "otherwise involves conduct that presents a serious risk of physical injury to another..." is too vague. It can be argued that Johnson's logic may apply equally apply to 924(c)(3)(B) because the fear of damage to person or property in 1951 might not be the same thing as the risk of use of physical force against person or property. This is not a question that can be answered by a lawyer here. This is something that will take hours of research just to decide whether there is an issue worth fighting.
It will also require a careful evaluation of the defendant's status. If this is a very recent conviction and appeal is not barred by the plea agreement the issue might be raised on direct appeal. If the appeal period ran out or the appeal was denied within the last year the defendant can bring a 2255 action. If more than a year has passed the possibility of filing anything to challenge this is reduced.
The defendant needs to hire a lawyer to look at this issue.
DISCLAIMER- THIS IS NOT INTENDED TO AND DOES NOT CONSTITUTE LEGAL ADVICE AND DOES NOT ESTABLISH AN ATTORNEY-CLIENT RELATIONSHIP. CONSULT QUALIFIED LEGAL COUNSEL IN YOUR CITY OR STATE FOR IMMEDIATE LEGAL ADVICE.
Completely agree with Mr. Foote. Get to a competent local attorney asap to discuss in depth.
Good luck to you.
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