Gomez v. United States

Background

Hanley Gomez sought relief under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence. The indictment charged him with three counts: conspiracy to distribute narcotics; conspiracy to interfere with commerce by threats or violence, also called Hobbs Act robbery conspiracy; and aiding and abetting the use or carrying of a firearm during a crime of violence and drug-trafficking offense.

Gomez pleaded guilty to Count Two, the Hobbs Act robbery conspiracy, and Count Three, possessing a firearm during and in relation to the crime of violence charged in Count Two. He did not plead guilty to Count One, the drug-trafficking conspiracy, and that count was dismissed. The judgment imposed one month of incarceration on Count Two, followed consecutively by 60 months on Count Three.

Procedural Default

The government argued that Gomez could not raise his challenge because he had not raised it on direct appeal. The court rejected that argument. It concluded that Gomez had cause for not raising the claim earlier because the Supreme Court’s later decision in United States v. Davis could not reasonably have been anticipated when he pleaded guilty. The court also found actual prejudice because Gomez had pleaded guilty to and been sentenced for a statutory offense later declared unconstitutionally vague.

Merits

The court held that, after Davis, conspiracy to commit Hobbs Act robbery was not a crime of violence and could not serve as the predicate for a conviction under 18 U.S.C. § 924(c). A predicate is the underlying offense that supports the firearm conviction.

The court reviewed the indictment, plea agreement, plea hearing, and judgment. It concluded that Count Three was tied to the Hobbs Act robbery conspiracy in Count Two, not to the drug-trafficking conspiracy in Count One. The plea agreement referred to possession of a firearm during and in relation to the crime of violence charged in Count Two. During the plea hearing, the government identified Count Two as the predicate offense, and the judgment described the firearm conviction as connected to Count Two.

Although the drug-trafficking conspiracy theoretically could have supported the firearm conviction, Gomez had not pleaded guilty to that charge or to possessing or aiding and abetting possession of a firearm in furtherance of a narcotics crime. The court therefore rejected the government’s effort to treat the conviction as based on that separate offense.

Disposition

Judge Richard M. Berman granted Gomez’s motion to vacate his conviction for aiding and abetting the use or carrying of a firearm in relation to a Hobbs Act robbery conspiracy. The court scheduled resentencing for March 4, 2020, and directed the Probation Department and the parties to submit updated sentencing materials by the dates listed in the order.