United States District Court, M.D. Alabama, Northern Division
KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE.
aiding and abetting a Hobbs Act robbery a “crime of
violence” under 18 U.S.C. § 924(c)(3)(A)? The
Magistrate Judge's Recommendation concludes that it is a
crime of violence. (Doc. # 19.) The Recommendation is due to
Demareio Harris pleaded guilty to brandishing a firearm
during a “crime of violence, ” a violation of 18
U.S.C. § 924(c)(1)(A)(ii). (Doc. # 4-5, at 2.) The term
“crime of violence” is statutorily defined to
mean a felony that
(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). Clause (A) is called the
“use-of-force clause, ” while clause (B) is known
as the “residual clause.” The predicate
“crime of violence” for Harris's conviction
was aiding and abetting a Hobbs Act robbery in violation of
18 U.S.C. § 1951. (Doc. # 4-1, at 4; Doc. # 4-2, at 5;
Doc. # 4-5, at 2.)
incarcerated, Harris moved to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255. (Doc. # 1.) He
argues that a Hobbs Act robbery is not a “crime of
violence” because it does not satisfy the §
924(c)(3)(A) use-of-force clause and because the §
924(c)(3)(B) residual clause is unconstitutionally vague.
(Docs. # 1, 15, 23.)
Magistrate Judge recommended that the court deny Harris's
motion. (Doc. # 19.) Harris objected to that Recommendation.
(Doc. # 23, at 2.) He also requested a stay pending the
Eleventh Circuit's decision in a case about whether the
residual clause is invalid. (Doc. # 23, at 1.)
initial matter, the court finds that Harris's objections
are inadequate. An objection to a Magistrate Judge's
Recommendation must “pinpoint the specific findings
that the party disagrees with.” United States v.
Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009);
see Fed. R. Civ. P. 72(b)(2) (requiring
“specific” objections). “Frivolous,
conclusive, or general objections need not be considered by
the district court.” Marsden v. Moore, 847
F.2d 1536, 1548 (11th Cir. 1988). Yet Harris simply
“objects to the Magistrate's Report and
Recommendation in its entirety.” (Doc. # 23, at 2.) He
does not identify specific errors in the Recommendation. Nor
does he cite any authority. Instead, he merely repeats his
argument in a few short sentences. (Doc. # 23, at 2-3.) So
the court need not consider his objection.
the court has conducted an independent and de novo
review of the entire Recommendation. See 28 U.S.C.
§ 636(b). The Recommendation is due to be adopted.
Eleventh Circuit held in In re Saint Fleur that a
Hobbs Act robbery is a “crime of violence” under
the use-of-force clause. 824 F.3d 1337, 1340-41 (11th Cir.
2016). The Eleventh Circuit also held in In re Colon
that aiding and abetting a Hobbs Act robbery is a
“crime of violence” under the use-of-force
clause. 826 F.3d 1301, 1305 (11th Cir. 2016). Those decisions
compel the conclusion that the predicate offense for
Harris's conviction was indeed a crime of violence.
the predicate offense for Harris's conviction is a crime
of violence under the use-of-force clause, there is no need
to consider whether the residual clause is unconstitutionally
vague. See United States v. St. Hubert, 883 F.3d
1319, 1328 (11th Cir. 2018); In re Smith, 829 F.3d
1276, 1280 (11th Cir. 2016). Nor is there any need to stay
the case until the Eleventh Circuit decides that issue.
after de novo review of the record and the