United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE
the court is the pro se motion to vacate conviction
and correct sentence pursuant to 28 U.S.C. §2255 filed
by the defendant Louis Elmy (“Elmy”), (Doc.
46), based on the Supreme Court's recent decision in
United States v. Davis, 139 S.Ct. 2319 (2019). For
the reasons set forth below, the motion will be
February 19, 2016, Elmy was charged with two counts in a
criminal information. (Doc. 1). On June 9, 2016, an
amended criminal information was filed charging Elmy with
Extortion Under Color of Right in violation of 18 U.S.C.
§1951(a) in Count 1, and Possessing a Firearm in
Furtherance of Drug Trafficking in Count 2. (Doc.
16). On June 6, 2016, Elmy entered into a plea agreement
wherein he agreed to plead guilty to both counts. On July 21,
2016, Elmy appeared in court, waived indictment, and entered
his guilty plea. (Doc. 24; Doc.
25). Elmy also filed a “Statement of
Defendant” in which he stated, inter alia,
“I am admitting that what the Government says about me
in the Information is true and that I did, in fact commit the
offenses with which I am charged.” (Doc. 24, at
2). On March 23, 2017, Elmy was sentenced, inter
alia, to 72 months' imprisonment. (Doc.
November 1, 2019, Elmy filed the present motion to vacate.
(Doc. 46). On December 30, 2019, the government
filed a brief in opposition. The matter is now ripe for this
district court judge imposes a sentence on a defendant who
believes that “the sentence was imposed in violation of
the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is subject to collateral attack, [the defendant] may
move the court which imposed the sentence to vacate, set
aside or correct the sentence.” 28 U.S.C. §2255.
See United States v. Eakman, 378 F.3d 294,
297-98 (3d Cir. 2004).
rule states, “If it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings
that the moving party is not entitled to relief, the judge
must dismiss the motion and direct the clerk to notify the
moving party.” See United States v.
Bendolph, 409 F.3d 155, 165 n.15 (3d Cir. 2005) (stating
district courts have the power to dismiss petitions sua
sponte during the Rule 4 stage of habeas proceedings).
Section 2255 motion “is addressed to the sound
discretion of the district court.” United States v.
Williams, 615 F.2d 585, 591 (3d Cir. 1980). A motion
under 28 U.S.C. §2255 is the proper procedure for a
federal prisoner to raise a collateral attack on his federal
sentence for any error that occurred at or prior to
sentencing. See In re Dorsainvil, 119 F.3d
245 (3d Cir. 1997). In order to prevail on a Section 2255
motion to vacate, set aside, or correct a sentence, the
defendant must show “(1) an error of constitutional
magnitude; (2) a sentence imposed outside the statutory
limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding
invalid.” United States v. Bates, 2008 WL
80048, at *2 (M.D.Pa. Jan. 7, 2008) (quoting Mallett v.
United States, 334 F.3d 491, 496-97 (6th Cir 2003)). The
defendant bears the burden of proof under Section 2255 and
must demonstrate his right to relief by a preponderance of
the evidence. United States v. Ayers, 938 F.Supp.2d
108, 112 (D.D.C. 2013).
United States v. Davis, the Supreme Court held that
18 U.S.C. §924(c)(3)(B)'s residual clause definition
of “crime of violence” as a felony “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, ” was
unconstitutionally vague. 139 S.Ct. at 2336. This was so, the
Court held, since it required a “categorical”
approach for determining whether an offense qualified as a
crime of violence, wherein a judge would disregard how the
defendant actually committed the crime and instead estimate
“the degree of risk posed by a crime's imagined
‘ordinary case.'” Id. at 2326.
present motion, Elmy argues that his Count 2 conviction under
18 U.S.C. §924(c)(1)(A) must be vacated because it was
predicated on the Hobbs Act Extortion Under Color of Right
crime charged Count 1, which he asserts is improper because
Count 1 cannot be considered a crime of violence under either
Section 924(c)'s elements clause in 18 U.S.C.
§924(c)(3)(A), or the now-unconstitutional (pursuant to
Davis) residual clause in 18 U.S.C.
§924(c)(3)(B). More specifically, Elmy argues the Count 1
Hobbs Act Extortion conviction “cannot be considered a
crime of violation under [§]924(c)'s residual clause
because that clause is void for vagueness.” (Doc.
46, at 2). As for the elements clause, Elmy argues that
Hobbs Act Extortion does not qualify as a crime of violence
because it does not require the “use, attempted use, or
threatened use of physical force against the person or
property of another.” 18 U.S.C. §924(c)(3)(A).
Thus, he asserts, because Count 2 was predicated on Count 1,
and because Count 1 cannot be considered a crime of violence,
his Count 2 conviction must be vacated.
argues that the Count 2 conviction is likewise infirm if
predicated on drug trafficking, as is also contemplated by
Section 924(c), because “the sentencing transcript does
not support ‘the drug trafficking offense', and no
other record or fact exist [sic] that support [sic] the
specifics as laid out in the statute [§]924(c).”
(Doc. 46, at 5).
the government agrees that Davis set forth a new
substantive rule that is retroactive, it argues that
Davis is wholly inapplicable here. The government
argues that Elmy's Count 2 conviction was not predicated
on the Count 1 Hobbs Act Extortion pursuant to 18 U.S.C.
§1951(a). Instead, the government argues, it was
predicated on a drug trafficking crime, and therefore in not
invalid under Davis. As to his second argument, the
government argues that the portion of the sentencing
transcript Elmy cites is ...