United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
10, 2017, Marquise Jones (“Jones”) filed a motion
pursuant to 28 U.S.C. § 2255, asserting that his
conviction and sentence were imposed in violation of the
Constitution. (Docket #1). The Court must screen Jones'
motion under Rule 4 of the Rules Governing Section 2255
Proceedings, which requires the Court to promptly examine
Jones' motion and dismiss it “[i]f it plainly
appears from the motion, any attached exhibits, and the
record of prior proceedings that [Jones] is not entitled to
August 23, 2016, the government filed a two-count indictment
against Jones, charging him with Hobbs Act robbery, in
violation of 18 U.S.C. §§ 1951(a) and 2, and
brandishing a firearm during the robbery, in violation of 18
U.S.C. §§ 924(c)(1)(A)(ii) and 2. On October 28,
2016, he pleaded guilty to both counts and was sentenced by
the Court on April 20, 2017.
petition, Jones challenges his conviction under Section
924(c), arguing that (1) his co-defendant, and not he,
brandished the firearm during the robbery, (2) he and his
co-defendant could not both be charged with brandishing the
firearm when there was only one firearm used, and (3) his
Hobbs Act robbery conviction cannot serve as a predicate for
his Section 924(c) conviction. (Docket #1 at
The Court will address the claims in reverse order.
924(c) imposes additional penalties on individuals who carry
or use firearms in connection with certain crimes. 18 U.S.C.
§ 924(c). In Jones' case, he was convicted of
brandishing a firearm during a “crime of violence,
” which the statute defines as
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.
Id. § 924(c)(3). The first clause is referred
to as the “elements” clause, while the second is
known as the “residual” clause.
Supreme Court in Johnson v. United States, 135 S.Ct.
2551, 2560 (2015), found that an identical residual clause in
the Armed Career Criminal Act was unconstitutionally vague.
The Court later determined that the rule announced in
Johnson was substantive and should therefore be
retroactively applicable to collateral attacks like
Jones'. Welch v. United States, 136 S.Ct. 1257,
1265 (2016). Jones contends that his Hobbs Act robbery
offense under Section 1951(a) only qualifies as a crime of
violence which forms a predicate for his Section 924(c)
offense under the residual clause of Section 924(c)(3).
(Docket #1 at 10-12). Because the Supreme Court declared an
identical residual clause unconstitutionally vague, he says,
the same reasoning should invalidate Section 924(c)(3)(B).
Id. That, in turn, requires that his Section 924(c)
conviction be vacated. Id.
problem with Jones' claim is not his legal reasoning;
that much is sound, since the Seventh Circuit has held that
the residual clause of Section 924(c)(3) is indeed
unconstitutionally vague. United States v. Cardena,
842 F.3d 959, 995-96 (7th Cir. 2016). But that holding does
not help Jones here, because the Seventh Circuit has also
held that Hobbs Act robbery constitutes a crime of violence
under the elements clause of Section 924(c)(3), since it
“[has] as an element the use, attempted use, or
threatened use of physical force against the person or
property of another.” United States v. Anglin,
846 F.3d 854, 964-65 (7th Cir. 2017); United States v.
Rivera, 847 F.3d 847, 848 (7th Cir. 2017). Thus,
Jones' Hobbs Act robbery conviction serves as a valid
predicate for his Section 924(c) conviction by way of the
elements clause of Section 924(c)(3), not the residual
other, fact-based arguments relating to his Section 924(c)
conviction can be quickly disposed of. First, he claims that
he is actually innocent of the charge because it was his
co-defendant and not he who brandished the gun. (Docket #1 at
14). He says he should have been charged instead as merely
aiding and abetting the gun offense. Id.
Unfortunately for him, his proposed distinction makes no
18 U.S.C. § 2, a person who aids or abets an offense is
punishable to the same extent as a principal. 18 U.S.C.
§ 2. In other words, even if Jones did not actually hold
and brandish the gun, his conviction under Section 2 means
that he is just as guilty of brandishing the gun as his
co-defendant. United States v. Scroger, 98 F.3d
1256, 1262 (10th Cir. 1996) (“It is well established
that aiding and abetting is not an independent crime under 18
U.S.C. § 2; it simply abolishes the common-law
distinction between principal and accessory.”);
United States v. Newman, 755 F.3d 543, 545-46 (7th
Cir. 2014). Jones does not argue (and has never argued) that
he did not participate in the robbery or that he did not know
that the gun would be brandished-indeed, he was the owner of
the gun in question. See Rosemond v. United States,
134 S.Ct. 1240, 1249 (2014). His entire claim is that he did
not physically hold the weapon during the robbery,
see (Docket #1 at 14), but that fact, even if true,
Jones is incorrect that the government had to elect which
person-him or his co-defendant-to charge under Section
924(c), (Docket #1 at 14), since Section 2 permits all
accomplices to bear equal culpability for their crimes,
see Newman, 755 F.3d at 547 (accomplices are liable
for the whole crime even if it was impossible for each of
them to commit each element thereof). Thus, all of ...