Herrera v. United States

(1) Whether the residual clause in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018)? (2) If a conduct-based approach applies, whether a conspiracy to commit Hobbs Act robbery charge based on a stash-house robbery sting qualifies as a crime of violence?

In 2015, Petitioner pled guilty to conspiracy to commit a Hobbs Act robbery and to violation of 18 U.S.C. § 924(c)(1) based on his possession of a firearm during a “crime of violence.” Petitioner later filed a motion to vacate his conviction of the second charge, arguing the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague under the Supreme Court’s reasoning in Johnson v. United States, 135 S. Ct. 2551 (2015) and Sessions v. Dimaya, 138 S. Ct. 1204 (2018). The district court denied Petitioner’s motion and denied certificate of appealability. The Eleventh Circuit subsequently granted the certificate in order to determine whether the Johnson decision affected Petitioner’s conviction. After its decision in Ovalles v. United States, 905 F.3d 1231 (11th Cir. 2018), the Eleventh Circuit affirmed denial of Petitioner’s motion, holding that § 924(c)(3)(B) was not unconstitutionally vague as applied using a conduct-based approach. Petitioner requested the Supreme Court hold his petition for writ of certiorari until the Court issued its decision in United States v. Davis, 588 U.S. ____ (2019), where it would answer an identical inquiry into the constitutionality of §924(c)(3)(B). After finding the definition unconstitutionally vague in its Davis decision, the Supreme Court issued summary disposition of Petitioner’s case pursuant thereto. VACATED and REMANDED.