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Harris v. United States

United States District Court, M.D. Alabama, Northern Division

September 24, 2018

DEMAREIO HARRIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE.

         Is 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 be adopted.

         Petitioner 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 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.

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.)

         While 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.)

         The Magistrate Judge recommended that the court deny Harris's motion. (Doc. # 19.) Harris objected[1] to that Recommendation. (Doc. # 23, at 2.)[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.)

         As an 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.

         Still, 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.

         The 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.

         Because 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.

         Thus, after de novo review of the record and the ...


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