Simmons v. United States

Background

Tyrone Simmons filed a petition under 28 U.S.C. § 2255, which allows a federal prisoner to challenge a conviction or sentence, seeking to vacate his conviction under 18 U.S.C. § 924(c)(1)(A)(ii) for brandishing a firearm in furtherance of a crime of violence. The firearm count was charged alongside conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery. Simmons pleaded guilty to all three counts and received a 219-month sentence: 135 months on the robbery counts, to run concurrently, and 84 consecutive months on the firearm count.

Simmons argued that his conviction could not stand after decisions holding that Hobbs Act robbery conspiracy was not a qualifying crime of violence for purposes of § 924(c). The court had stayed the case while related litigation proceeded, including United States v. Davis, which held that § 924(c)(3)(B)’s definition of crime of violence was unconstitutionally vague, and United States v. Barrett, which held that Hobbs Act robbery conspiracy was not a qualifying predicate. The court rejected the government’s argument that Simmons had procedurally defaulted his claims and proceeded to the merits.

Issues

The court addressed two questions: whether attempted Hobbs Act robbery qualifies as a crime of violence under § 924(c), and whether the information, plea agreement, or prosecutor’s description at the plea hearing limited the firearm count to the robbery conspiracy rather than the attempted robbery.

Court’s Analysis

The court held that attempted Hobbs Act robbery qualifies as a crime of violence under § 924(c)(3)(A), sometimes called the force clause. That provision covers a felony having as an element the use, attempted use, or threatened use of physical force against another person or property. Hobbs Act robbery requires taking property through actual or threatened force, violence, or fear of injury. The court reasoned that taking a substantial step toward completing that robbery necessarily involves the attempted use or threatened use of force.

The court then examined the charging and plea materials. The information charged the firearm offense as based on both the robbery conspiracy and the attempted robbery. Although the plea agreement and the prosecutor’s explanation at the plea hearing described the firearm count in relation to the conspiracy, Simmons also pleaded guilty to the attempted robbery charge. During the plea hearing, he admitted that he had a gun during an attempted robbery, displayed it to frighten the intended victim, and used guns during the charged robberies or attempted robberies. The court concluded that the information was not amended and that Simmons had adequate notice that the attempted robbery was a predicate for the firearm count.

Disposition

The court denied the § 2255 petition. It also directed the clerk to terminate the open motion identified as ECF No. 131 in the related criminal case. The opinion does not state that the petition was denied with or without prejudice.

Judge

The opinion was issued by Alvin K. Hellerstein, United States District Judge.