Devon Chance: Granting SOS to 924(c)/Hobbs Act conspiracy applicant

In In re: Devon Chance, No. 16-13918-J (Aug. 8, 2016) (Tjoflat, Wilson, Jill Pryor), the Court granted an application for leave to file a second or successive § 2255 motion to an applicant who was convicted under 18 U.S.C. § 924(c). The Court noted that the predicate offense for the § 924(c) offense was conspiracy to violate the Hobbs Act. As in In re Pinder, the law is “unsettled” as to whether this companion conviction was valid, post-Johnson. The Court recognized that Chance received concurrent sentences on substantive Hobbs Act robbery offenses, offenses that are still valid § 924(c) predicates post-Johnson. However, the sentences were not “fully concurrent” because the $100 fines on each count were cumulative. Chance therefore had at least a pecuniary interest in the review of his sentence. Further, as in In re Davis, the terms of incarceration were not dictated by a mandatory minimum. For these reasons, the concurrent sentence doctrine that the Court applied in In re Williams did not apply here. The Court then addressed the Court’s recent statement in In re Jasper Moore that “the district court cannot grant relief in a § 2255 proceeding unless the movant . . . proves that he was sentenced using the residual clause.” Though recognizing that its own discussion of Moore was dicta, the Court stated that this statement in Moore was dicta, because it was necessary to the decision to grant an SOS application. The Court added that the statement in Moore was “quite wrong.” First, the statement implied that a district court deciding a § 2255 motion “can ignore decisions from the Supreme Court that were rendered since that time in favor of a foray into a stale record.” But cases like Descamps and Mathis are binding. If the district court determined that Hobbs Act conspiracy does not qualify under the elements clause, in light of Descamps and Mathis, then that would be conclusive proof that the defendant was wrongfully sentenced under the residual clause – regardless of whether the district court “uttered the magic words ‘residual clause.’” Second, eligibility under § 2255 should be based solely on “a chance remark.” Quoting Rivers v. Roadway Express, Inc., the Court noted that a judicial construction of a statute is an authoritative statement of what the statute meant “before as well as after the decision of the case giving rise to that construction.”