Simmons v. United States
- Nelson Roman
- 7:20-cv-01867
- U.S. District Court · Southern District of New York
- 6
In Simmons v. United States, Judge Roman denied Simmons’s petition because Hobbs Act robbery remains a qualifying crime of violence after Davis.
Dwight Simmons, whose 28 U.S.C. § 2255 petition challenging his firearm conviction and sentence was denied; the judgment and sentence remained in place.
What happened
Simmons v. United States concerned Dwight Simmons’s petition asking the court to vacate his firearm conviction and sentence. He had received 84 months in prison for brandishing a firearm during and in relation to a Hobbs Act robbery.
Simmons argued that a 2019 Supreme Court decision, United States v. Davis, made his conviction invalid because it struck down part of the law defining a “crime of violence” as unconstitutionally vague. The government argued that the petition was barred because Simmons had not appealed and that Davis did not invalidate his conviction.
The court denied the petition in all respects. Judge Roman ruled that Hobbs Act robbery qualifies under the remaining part of the firearm statute, so Simmons’s sentence did not violate Davis. The court also found that Simmons’s claim was procedurally barred, denied a certificate allowing an appeal, and denied permission to appeal without paying court fees.
The detailed version
- Simmons v. United States · No. 7:20-cv-01867
- Nelson Roman
- July 18, 2023
Background
On May 3, 2019, the court sentenced Dwight Simmons under a plea agreement for violating 18 U.S.C. § 924(c)(1)(A)(ii). Count Three charged that Simmons brandished a firearm during and in relation to a Hobbs Act robbery charged in Count Two. The court imposed 84 months’ imprisonment followed by five years of supervised release.
On February 28, 2020, Simmons filed a petition under 28 U.S.C. § 2255. Section 2255 allows a federal prisoner to ask the sentencing court to vacate, set aside, or correct a sentence that violated federal law or the Constitution, exceeded the lawful maximum, or is otherwise subject to collateral attack. Simmons filed the petition without a lawyer.
Arguments
Simmons relied on United States v. Davis, in which the Supreme Court held that the “residual clause” in 18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague. Before Davis, that clause defined a “crime of violence” as an offense involving a substantial risk that physical force might be used. After Davis, a § 924(c) conviction must instead rest on the “elements clause” in § 924(c)(3)(A), which covers an offense that has as an element the use, attempted use, or threatened use of physical force against another person or property.
Simmons argued that Davis entitled him to have his conviction vacated and to be resentenced. The government argued that the petition was procedurally barred because Simmons had not challenged his conviction on direct appeal. The government also argued that the conviction was valid under Davis.
Court’s Analysis
The court stated that it was setting aside the parties’ procedural-bar arguments and would deny the petition because the conviction did not violate Davis. The court nevertheless separately concluded that the petition was procedurally barred because Simmons had not appealed and had not shown cause and prejudice for that failure.
The court held that the Hobbs Act robbery underlying Simmons’s firearm conviction qualifies as a crime of violence under § 924(c)(3)(A), the elements clause. The court relied on Second Circuit and district court decisions holding that Hobbs Act robbery has as an element the use, attempted use, or threatened use of physical force against a person or property. Because the conviction rested on the elements clause rather than the invalid residual clause, the court found that Simmons’s sentence did not violate Davis.
Disposition
The court denied Simmons’s § 2255 petition in all respects. It directed the clerk to terminate the motion and enter judgment in the related civil case. The court also declined to issue a certificate of appealability because Simmons had not made a substantial showing that a constitutional right was denied. It certified that an appeal would not be taken in good faith and denied permission to appeal without paying court fees. The clerk was directed to mail the order to Simmons, identified in the opinion as a pro se defendant.
Judge
The order was issued by United States District Judge Nelson S. Roman.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.