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Jones v. United States

United States District Court, E.D. Wisconsin

July 14, 2017

MARQUISE JONES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 16-CR-135-2-JPS

          ORDER

          J. P. Stadtmueller U.S. District Judge

         On July 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 relief.”

         On 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.

         In his 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 8).[1] The Court will address the claims in reverse order.

         Section 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 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.

Id. § 924(c)(3). The first clause is referred to as the “elements” clause, while the second is known as the “residual” clause.

         The 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.

         The 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 clause.

         Jones' 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 difference.

         Under 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, is irrelevant.

         Likewise, 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 ...


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