United States District Court, W.D. Louisiana, Lake Charles Division
RULING ON OBJECTION
G. JAMES UNITED STATES DISTRICT JUDGE.
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].
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).
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).
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
(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
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. 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