Herrmann v. United States

Background

Lasalle Herrmann filed a post-conviction petition under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a sentence in limited circumstances. The opinion identifies Herrmann as representing himself. The case also carried criminal docket number 16 Cr. 814 (LGS).

A grand jury charged Herrmann with conspiracy to distribute and possess more than 280 grams of cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) and with using and carrying a firearm in connection with that conspiracy in violation of 18 U.S.C. § 924(c). Herrmann pleaded guilty to both counts. The court sentenced him to 120 months on the drug-conspiracy count and 60 consecutive months on the firearm count, for a total sentence of 180 months.

Herrmann’s Argument

Herrmann asked the court to vacate the firearm conviction. He argued that the conspiracy supporting that conviction could not qualify as a “crime of violence” after United States v. Davis, 139 S. Ct. 2319 (2019).

Section 924(c) permits a firearm conviction when a firearm is used or carried during either a crime of violence or a drug-trafficking crime. Davis held that the statute’s “Residual Clause”—the part defining a violent crime by reference to a substantial risk that physical force may be used—was unconstitutionally vague. Davis therefore prevented firearm convictions based on that clause.

Court’s Analysis

The court held that Davis did not affect Herrmann’s conviction because the offense supporting Count Two was a drug-trafficking crime. The statute uses the word “or,” meaning that a qualifying drug-trafficking crime can support a firearm conviction independently of the crime-of-violence definitions. Because Count One involved a drug-related conspiracy, the court concluded that the crime-of-violence analysis was not relevant.

The court also held that the petition was untimely under the one-year limitation period in 28 U.S.C. § 2255(f). It found that Herrmann had not filed the petition within one year after his conviction became final and that Davis did not provide a new legal basis for resetting that deadline.

Ruling and Disposition

The court denied the petition on both procedural and merits grounds. It further concluded that Herrmann had not made the required substantial showing that a federal right was denied, so appellate review was not warranted. The court certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees. The Clerk of Court was directed to close the case.