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United States v. Elmy

United States District Court, M.D. Pennsylvania

January 8, 2020

LOUIS ELMY, Defendant



         Before 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 DENIED.

         I. BACKGROUND

         On 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).[1] 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. 40).

         On 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 court's review.

         II. STANDARD

         When a 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).

         The 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).

         A 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).


         In 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.

         In his 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).[2] 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.[3]

         Elmy 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).

         While 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 ...

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