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United States v. Materne

United States District Court, W.D. Louisiana, Lake Charles Division

December 4, 2018

UNITED STATES OF AMERICA
v.
JOHN HAROLD MATERNE (01)

          KAY MAGISTRATE JUDGE.

          RULING ON OBJECTION

          ROBERT G. JAMES UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, filed by Defendant John Harold Materne. [Doc. No. 130]. By his motion, Materne seeks to vacate his conviction under 18 U.S.C. § 924(c) (brandishing a firearm during a crime of violence) based upon recent rulings by the United States Supreme Court and the Fifth Circuit Court of Appeals holding that certain residual clauses set forth in § 924 are unconstitutionally vague. The motion was referred to Magistrate Judge Kay for Report and Recommendation. The Magistrate Judge recommends the motion be denied and dismissed with prejudice. [Doc. No. 148]. The Court issues this Ruling to address Materne's objection to the Report and Recommendation. [Doc. No. 149].

         Materne was convicted of one count of committing a robbery within the territorial jurisdiction of the United States, in violation of 18 U.S.C. § 2111, and one count of brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). By his objection, Materne argues his conviction for brandishing a firearm during a crime of violence should be vacated, because the residual clause of the statute's definition of “crime of violence” is unconstitutionally vague. See 18 U.S.C. § 924(c)(3)(B), The predicate offense for Materne's firearm conviction is robbery within the territorial jurisdiction of the United States, 18 U.S.C. § 2111. That statute provides: “Whoever, within the special maritime and territorial jurisdiction of the United States, by force and violence, or by intimidation, takes or attempts to take from the person or presence of another anything of value, shall be imprisoned not more than fifteen years.” 18 U.S.C. § 2111 (emphasis added).

         Materne was convicted of the firearm charge pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), which provides in pertinent part:

[A]ny person who, during and in relation to any crime of violence . . . uses or carries a firearm . . . shall, in addition to the punishment provided for such crime of violence . . . --
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years. . . .

18 U.S.C. § 924(c)(1)(A)(ii) (emphasis added).

         Section 924 defines “crime of violence” as follows:

For purposes of this subsection the term “crime of violence” means an offense that is a felony and--
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). Subsection (A) is frequently referred to as the “elements clause, ” and subsection (B) is referred to as the “residual clause.”

         In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court held that the residual clause of the statutory definition of “violent felony” in the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B)(ii), was unconstitutionally vague. Id. at 2563.[1] In United States v. Davis, the Fifth Circuit held Hobbs Act robbery is a crime of violence under the elements clause of § 924(c)(3)(A), despite defendants argument that “Hobbs Act robbery can be committed without the use, attempted use, or threatened use of physical force, because ‘fear of injury' is included in the definition of ...


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