United States District Court, D. Connecticut
RULING DENYING MOTION TO VACATE, SET ASIDE, OR
Jeffrey Alker Meyer United States District Judge.
Humberto Soto, acting pro se, has filed a motion to
vacate, set aside, or correct his sentence, pursuant to 28
U.S.C. § 2255. Mr. Soto argues that his conviction under
18 U.S.C. § 924(c) for possession of a firearm in
furtherance of a “crime of violence” is
unconstitutional under the Due Process Clause, because the
statute's definition of a “crime of violence”
is unconstitutionally vague. For the reasons that follow, I
will deny the motion for post-conviction relief.
March 2015, Mr. Soto pled guilty to one count of conspiracy
to interfere with commerce by robbery in violation of 18
U.S.C. § 1951(a), and to one count of possession of a
firearm in furtherance of a crime of violence, in violation
of 18 U.S.C. § 924(c)(1)(A)(i) and § 2. The robbery
conspiracy conviction served as the predicate “crime of
violence” for the firearm conviction.
2015, this Court sentenced Mr. Soto principally to a term of
84 months in prison, to be followed by five years of
supervised release. The sentence of imprisonment included 24
months of imprisonment for his robbery conspiracy conviction
and a consecutive term of 60 months of imprisonment for his
possession of a firearm in furtherance of a crime of
prisoner in federal custody may seek to have his sentence
vacated, set aside, or corrected if his “sentence was
imposed in violation of the Constitution or laws of the
United States or . . . the court was without jurisdiction to
impose such sentence, or . . . the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack.” 28 U.S.C. § 2255(a). The
prisoner bears the burden of proving, by a preponderance of
the evidence, that he is entitled to relief. See Napoli
v. United States, 45 F.3d 680, 683 (2d Cir. 1995).
Soto challenges his conviction under 18 U.S.C. § 924(c)
for possession of a firearm in furtherance of a crime of
violence. He contends in principal part that the way that a
“crime of violence” is defined under 18 U.S.C.
§ 924(c) is unconstitutionally vague in violation of the
Constitution's Due Process Clause. The focus of his
challenge is the so-called residual clause of 18 U.S.C.
§ 924(c)(3)(B), which defines a “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.”
Second Circuit has held that “a Hobbs Act conspiracy to
commit robbery is by definition a conspiracy that involves a
substantial risk that physical force may be used against the
person or property of another.” United States v.
Elder, 88 F.3d 127, 128-29 (2d Cir. 1996); see also
United States v. Desena, 287 F.3d 170, 181 (2d Cir.
2002) (noting that “a conspiracy to commit a crime of
violence is a sufficient predicate crime of violence for the
purposes of 18 U.S.C. § 924(c)”). Mr. Soto's
robbery conspiracy conviction therefore plainly qualifies as
a crime of violence under the residual clause, 28 U.S.C.
§ 924(c)(3)(B), such that he was validly subject to
conviction for the use of a firearm in furtherance of a crime
Soto argues that the residual clause of § 924(c)(3)(B)
is unconstitutionally vague in light of the Supreme
Court's recent decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), which concluded that a
similar residual clause in the Armed Career Criminal Act, 18
U.S.C. § 924(e)(2)(B), was unconstitutionally vague.
More recently, however, the Second Circuit has declined to
conclude in light of Johnson that the residual
clause of § 924(c)(3)(B) is unconstitutionally vague as
applied in the context of a Hobbs Act robbery charge. See
Hill v. United States, 2016 WL 4120667, at *7-*12 (2d
Cir. 2016). The Second Circuit's decision in
Hill clearly controls this case and compels me to
deny relief for Mr. Soto for his void-for-vagueness claim.
government argues that Mr. Soto's motion for
post-conviction relief is barred by the appellate waiver
provision in his plea agreement. See United States v.
Soto, Case No. 3:14-cr-00085-JAM, Doc. #157 at 6.
Because Mr. Soto's claim fails on the merits for the
reasons explained above, I need not determine whether the
appellate waiver should be enforced to foreclose relief here.
Soto's remaining arguments that his counsel was
ineffective are without apparent foundation. In order to
establish ineffective assistance of counsel, Mr. Soto would
have to demonstrate that his counsel's performance fell
below an objective standard of reasonableness and that he
suffered prejudice as a result of his counsel's deficient
performance. See Strickland v. Washington, 466 U.S.
668, 694 (1984). Even assuming any deficient performance by
counsel, Mr. Soto cannot show prejudice because-for the
reasons explained above-there is no merit to his claim that
the residual clause of § 924(c)(3)(B) is
motion to vacate, set aside, or correct his sentence is
DENIED. Contrary to Mr. Soto's concern that “the
Court will reject [his] pleading after simply skimming
through it, ” Doc. #8 at 2, the Court has ...