Kortbawi v. United States

Background

Jason Kortbawi sought relief under 28 U.S.C. § 2255, a federal procedure allowing a prisoner to challenge a conviction or sentence in limited circumstances. He asked the court to vacate his conviction for possessing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c). His petition relied on United States v. Davis, in which the Supreme Court held that § 924(c)(3)(B)’s “residual clause”—part of the statute’s definition of a crime of violence—was unconstitutionally vague.

Kortbawi had been charged with Hobbs Act robbery conspiracy, substantive Hobbs Act robbery, and possessing a brandished firearm in connection with the robbery. He pleaded guilty to the conspiracy count and the firearm count. The indictment charged the firearm count as connected to the substantive robbery. But the plea agreement described it as connected to the robbery conspiracy, and the judgment’s description of the offense also referred to the conspiracy.

The Parties’ Positions

Kortbawi argued that these documents showed he was convicted of possessing a firearm in furtherance of a Hobbs Act robbery conspiracy. After Davis, he argued, that conspiracy could not serve as a valid § 924(c) predicate because conspiracy does not qualify under the statute’s force clause and the residual clause had been invalidated.

The Government argued that the indictment controlled the offense of conviction. It maintained that the descriptive errors in the plea agreement and judgment could not change Count Three into a conviction beyond the charge returned by the grand jury. Because the firearm conviction was based on substantive Hobbs Act robbery, the Government argued, Davis did not affect it.

Court’s Analysis of the Firearm Conviction

The court agreed with the Government. It recognized that the “nature of offense” description in the judgment was inconsistent with both the indictment and the plea agreement. But the court declined to interpret the judgment as making a constitutionally impermissible constructive amendment—an unauthorized expansion of the indictment’s charges after the grand jury returned it.

The court therefore treated Count Three as a conviction for possessing a firearm in furtherance of the substantive Hobbs Act robbery charged in Count Two. It held that substantive Hobbs Act robbery remained a valid predicate for a § 924(c) conviction under the statute’s force clause. The firearm conviction was consequently unaffected by Davis.

The court also stated that this conclusion did not endorse the Government’s handling of the plea agreement. It criticized the Government for presenting an agreement that incorrectly described the predicate offense and said such oversights could and should be avoided.

Challenge to the Plea Agreement

Kortbawi separately argued that, if he was convicted based on substantive robbery rather than conspiracy, his guilty plea was not knowing and voluntary because the plea agreement did not convey the true nature of the charge.

The court did not decide the merits of that argument. It held that the claim was procedurally defaulted because Kortbawi did not appeal after judgment was entered. Under the governing rule, he could raise the claim in a § 2255 proceeding only by showing a valid reason for failing to appeal and actual prejudice, or by showing actual innocence. The petition made neither showing.

Disposition

The court denied the petition. It also declined to issue a certificate of appealability because Kortbawi had not made a substantial showing that his constitutional rights were denied. The Clerk was directed to terminate the petition and close civil case number 16-CV-4934; pending motions in that case were moot.