IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION
JEMARKUS VONSHA THOMPSON, ) ) Petitioner, ) ) 7:23-cv-08020-LSC vs. ) (7:19-cr-00220-LSC-SGC-3) ) ) UNITED STATES OF AMERICA, ) ) Respondent. )
MEMORANDUM OF OPINION Before the Court is Jemarkus Vonsha Thompson’s (“Thompson’s”) motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) Defendant Thompson is not eligible for a sentence reduction under 28 U.S.C. § I2. 255 fBoar ctkhger roeuansodn detailed below. Therefore, his motion is denied.
Thompson was found guilty by jury verdict of aiding and abetting a Hobbs Act robbery (affecting interstate commerce) in violation of 18 U.S.C. § 1951(a) (Counts 1 and 3) and possession, use, brandishing, and/or discharging a �irearm during and in relation to a crime of violence in violation of 18 U.S.C. § 1 924(c)(1)(A)(ii) (Counts 2 and 4). (Cr. Doc. 81.) Thompson appealed to the Eleventh Circuit arguing “that the district court did not adequately explain the reasons for imposing a sentence that . . . was substantively unreasonable because it was longer than the sentences of his two codefendants.” (Doc. 6 at 2.)
The Eleventh Circuit af�irmed the District Court and ruled that Thompson’s sentence was reasonable. (Doc. 1 at 2.) Thompson petitions the Court to reduce hisU s.Se.n vt.e Tnacyel oprursuant to 28 U.S.C. § 2255 based on the Supreme Court’s ruling
in Taylor. (Cr. Doc. 1.) In , the Supreme Court ruled that attempted Hobbs Act Robbery “does not qualify as a “crime of violence” under §924(c)(3)(A) because “no element of the offense requiUrensi tperdo Sotfa ttheast v t.h Tea dyleofrendant used, attempted to use,
orI It.h reaLteengaedl Sttoa unsdea frodr ce.” , 596 U.S. 845 (2022). (1) Taylor Framework
U.S. v. Taylor established a categorical approach when deciding whether a crime quali�ies as a violent crime under the elements clause of 18 U.S.C. § 924(c). 596 U.S. at 846. For a felony offense to qualify as a crime of violence, a
crime must have “an element [of] the use, attempted use, or threatened use of
1 2 physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). The Court found it unnecessary to inquire Sieneto T sapyelocri�ic facts of a case or how a particular defendant committed a crime. , 596 U.S. at 846. Rather, the Court decided that, for a felony to be classi�ied as violent for the
purposes of the enhancement in 18 U.S.C. § 924(c), the government must prove Itdhe “use, attempted use, or threatened use of force” is an element of the crime. . a(2t )8 502. 8 U.S.C. § 2255
To determine whether a sentence may be reduced under 28 U.S.C. § 2255, a court must consider whether the “sentence imposed [was] in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). A motion to vacate is subject to a one-year statute of limitation s, running from the latest of: (1) the date on which the judgment of conviction becomes �inal;
2 United States v. Davis This premise �irst stemmed fromDa tvhies Supreme Court decision in , which said the “residual clause” found in §Id 9.24(c)T(a3y)l(oBr) was unconstitutionally vague. 139 S. Ct. 2319, 2324 (2019). Thus, post- , a crime of violence must meet the “elements clause” found in § 924(c)(3)(A) to quality. T he case determined if attempted Hobbs Act (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from mthaek indga at em ootnio nw bhyi csuhc ht hgeov erringmhte natsasl earctteiodn ; was initially recognized by the Supreme Court, if that right has been newly (r3e)cognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28II UI. .S.CT. §im 2e2l5in5(efs)s( 1)-(4) (emphasis added). Thompson timely �iled an appeal with the Eleventh Circuit and their opinion af�irming the District Court was issued as mandate on November 5, 3 2021. (Doc 6. at 3.) Thompson’s motion to vacate was �iled on June 16, 2023. (Doc. 1.) Thus, his motion was �iled past the one-year limitation articulated in 28 UT.aSy.Clo. r§ 2255(f)(1). However, his § 2255 motion rests on the contention that the decision’s categorical approach deems that aiding and abetting is not a crime of violence under the elements clause. (Doc. 1 at 4.) While Thompson’s �inalized conviction is past the one-year statute of limitations, the Supreme
3 Applying the “mailbox rule,” the Eleventh Circuit deems a prisoner’s § 2255 motion as �iled upon the “date that he delivered it to prison authorities for mailing, presumptively, . . . the U.S. v. Taylor Court decided on June 21, 2022. Therefore, Thompson timely �iled
hiIsV §. 22A5n5 amlyostiiso n pursuant to 28 U.S.C. § 2255(f)(3). Taylor requires the Court to apply a categorical approach to Thompson’s
felony offense to decide whether aiding and abetting Hobbs Act Robbery in violation of 18Se eU i.dS..C. § 1951(a) constitutes a crime of violence under §924(c)(3)(A). at 846. To apply this categorical approach, the Court must
decide whether the government had to prove the “use, attempted or threatened use of forIcde.” to establish Thompson’s offense of aiding and abetting Hobbs Act Robbery. at 851. Aiding and abetting a SgeiveeInn creri Cmoelo ins not a separate and independent crime
fsreoem a ltshoeU pnriitnecdi pSatal toefsfe vn. sSeo.s a , 826 F.3d 1301, 1305 (11th Cir. 2016); , 777 F.3d 1279, 1292 (11th Cir. 2015). Aiding and abetting differs from attempt, as it “is not a separate federal crime, but raStohsear
an alternative charge that permits one to be found guilty as a principal.” , 777 F.3d at 1292 (internal quotation marks omitted). Furthermore, to “obtain a conviction for aiding and abetting, the government mustU pnritoevde S, taamteosn vg. Wotihleeyr
things, that someone committed the su bstantiSvoes oaf,f ense.” , 78 F.4th 1355, 1364 (11th Cir. 2023) (citing 777 F.3d at 1292 (11th Cir. See In re Colon, elements of a principal Hobbs Act Robbery.” 826 F.3d at 1305.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION
JEMARKUS VONSHA THOMPSON, ) ) Petitioner, ) ) 7:23-cv-08020-LSC vs. ) (7:19-cr-00220-LSC-SGC-3) ) ) UNITED STATES OF AMERICA, ) ) Respondent. )
MEMORANDUM OF OPINION Before the Court is Jemarkus Vonsha Thompson’s (“Thompson’s”) motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) Defendant Thompson is not eligible for a sentence reduction under 28 U.S.C. § I2. 255 fBoar ctkhger roeuansodn detailed below. Therefore, his motion is denied.
Thompson was found guilty by jury verdict of aiding and abetting a Hobbs Act robbery (affecting interstate commerce) in violation of 18 U.S.C. § 1951(a) (Counts 1 and 3) and possession, use, brandishing, and/or discharging a �irearm during and in relation to a crime of violence in violation of 18 U.S.C. § 1 924(c)(1)(A)(ii) (Counts 2 and 4). (Cr. Doc. 81.) Thompson appealed to the Eleventh Circuit arguing “that the district court did not adequately explain the reasons for imposing a sentence that . . . was substantively unreasonable because it was longer than the sentences of his two codefendants.” (Doc. 6 at 2.)
The Eleventh Circuit af�irmed the District Court and ruled that Thompson’s sentence was reasonable. (Doc. 1 at 2.) Thompson petitions the Court to reduce hisU s.Se.n vt.e Tnacyel oprursuant to 28 U.S.C. § 2255 based on the Supreme Court’s ruling
in Taylor. (Cr. Doc. 1.) In , the Supreme Court ruled that attempted Hobbs Act Robbery “does not qualify as a “crime of violence” under §924(c)(3)(A) because “no element of the offense requiUrensi tperdo Sotfa ttheast v t.h Tea dyleofrendant used, attempted to use,
orI It.h reaLteengaedl Sttoa unsdea frodr ce.” , 596 U.S. 845 (2022). (1) Taylor Framework
U.S. v. Taylor established a categorical approach when deciding whether a crime quali�ies as a violent crime under the elements clause of 18 U.S.C. § 924(c). 596 U.S. at 846. For a felony offense to qualify as a crime of violence, a
crime must have “an element [of] the use, attempted use, or threatened use of
1 2 physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). The Court found it unnecessary to inquire Sieneto T sapyelocri�ic facts of a case or how a particular defendant committed a crime. , 596 U.S. at 846. Rather, the Court decided that, for a felony to be classi�ied as violent for the
purposes of the enhancement in 18 U.S.C. § 924(c), the government must prove Itdhe “use, attempted use, or threatened use of force” is an element of the crime. . a(2t )8 502. 8 U.S.C. § 2255
To determine whether a sentence may be reduced under 28 U.S.C. § 2255, a court must consider whether the “sentence imposed [was] in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). A motion to vacate is subject to a one-year statute of limitation s, running from the latest of: (1) the date on which the judgment of conviction becomes �inal;
2 United States v. Davis This premise �irst stemmed fromDa tvhies Supreme Court decision in , which said the “residual clause” found in §Id 9.24(c)T(a3y)l(oBr) was unconstitutionally vague. 139 S. Ct. 2319, 2324 (2019). Thus, post- , a crime of violence must meet the “elements clause” found in § 924(c)(3)(A) to quality. T he case determined if attempted Hobbs Act (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from mthaek indga at em ootnio nw bhyi csuhc ht hgeov erringmhte natsasl earctteiodn ; was initially recognized by the Supreme Court, if that right has been newly (r3e)cognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28II UI. .S.CT. §im 2e2l5in5(efs)s( 1)-(4) (emphasis added). Thompson timely �iled an appeal with the Eleventh Circuit and their opinion af�irming the District Court was issued as mandate on November 5, 3 2021. (Doc 6. at 3.) Thompson’s motion to vacate was �iled on June 16, 2023. (Doc. 1.) Thus, his motion was �iled past the one-year limitation articulated in 28 UT.aSy.Clo. r§ 2255(f)(1). However, his § 2255 motion rests on the contention that the decision’s categorical approach deems that aiding and abetting is not a crime of violence under the elements clause. (Doc. 1 at 4.) While Thompson’s �inalized conviction is past the one-year statute of limitations, the Supreme
3 Applying the “mailbox rule,” the Eleventh Circuit deems a prisoner’s § 2255 motion as �iled upon the “date that he delivered it to prison authorities for mailing, presumptively, . . . the U.S. v. Taylor Court decided on June 21, 2022. Therefore, Thompson timely �iled
hiIsV §. 22A5n5 amlyostiiso n pursuant to 28 U.S.C. § 2255(f)(3). Taylor requires the Court to apply a categorical approach to Thompson’s
felony offense to decide whether aiding and abetting Hobbs Act Robbery in violation of 18Se eU i.dS..C. § 1951(a) constitutes a crime of violence under §924(c)(3)(A). at 846. To apply this categorical approach, the Court must
decide whether the government had to prove the “use, attempted or threatened use of forIcde.” to establish Thompson’s offense of aiding and abetting Hobbs Act Robbery. at 851. Aiding and abetting a SgeiveeInn creri Cmoelo ins not a separate and independent crime
fsreoem a ltshoeU pnriitnecdi pSatal toefsfe vn. sSeo.s a , 826 F.3d 1301, 1305 (11th Cir. 2016); , 777 F.3d 1279, 1292 (11th Cir. 2015). Aiding and abetting differs from attempt, as it “is not a separate federal crime, but raStohsear
an alternative charge that permits one to be found guilty as a principal.” , 777 F.3d at 1292 (internal quotation marks omitted). Furthermore, to “obtain a conviction for aiding and abetting, the government mustU pnritoevde S, taamteosn vg. Wotihleeyr
things, that someone committed the su bstantiSvoes oaf,f ense.” , 78 F.4th 1355, 1364 (11th Cir. 2023) (citing 777 F.3d at 1292 (11th Cir. See In re Colon, elements of a principal Hobbs Act Robbery.” 826 F.3d at 1305.
Therefore, by the government proving the principal committed the “substantive offense” of Hobbs Act Robbery, Thompson is responsible for the acts of the principaInl arse Caonl oanider and abettor since it is not a “separate and independent
crime.” , 826 F.3d at 13T0a5y. lor’s This Circuit, when applying categorical approach, held that aiding and abetting Hobbs Act Robbery is a crime of violence as HobbUsn iAtecdt RSotabtbees rvy.
iWtsielelfy is classi�ied as a crime of violence unders e§e9 2a4ls(oc)I(n3 r)e(A C)o. lon, 4 , 78 F.4th 1355, 1365 (11th Cir. 2023) ; 826 F.3d at 1305. Hobbs Act Robbery is de�ined as: Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose . . .
18 U.S.C. § 1951(a).
Robbery is the “unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or
Wiley Taylor 4 recognized the case but stated “[t]o disturb our existing precedent, a ‘Supreme Court decisiToany mlourst be clearly on point’ and ‘actually abrogate or directly con�lict with, as opposed to merely weaken, the holding of the prior panel’ . . . [b]ecause the Supreme Court’s analysis in was limited to attempted Hobbs Act robbery, [the petitioner] cannot threatened force, or violence, or fear of injury.” Title 18 U.S.C. § 1951(b). As
“robbery” contains elements of violence described by §924(c)(3)(A), such as “use, attempted use, or threatened use of physical force,” within the con�ines of Hobbs Act Robbery, the acts of the principal in Thompson’s case classify as a
crime of violence pursuant to §924(c)(3)(A). As previously established, aiding and abetting Hobbs Act Robbery is not a separate federal crime from Hobbs Act Robbery, and thus Thompson’s crime is treated the same as the acts of the
principal. ThTeareylfoorre, because the Court has applied the categorical approach supplied by , �inding aiding and abetting Hobbs Act Robbery a violent crVim. e asC odnescclruisbieodn b y § 924(c)(3)(A), Thompson’s § 2255 is meritless.
For the foregoing reasons, Thompson’s § 2255 motion to vacate, set aside, or correct a sentence is due to be denied and this case dismissed with prejudice. Rule 11 of the Rules governing § 2255 Proceedings requires the Court to
issue or deny a ceSretei�icate of appealability when it enters a �inal order adverse to the applicant. Rule 11, Rules Governing § 2255 Proceedings. This Court may issue a certi�icate of appealability “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253(c)(2). To make such a showing, a “petitioner must demonstrate that a claims debatable and wrong.’ Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that “the issues presented were adequate to deserve to proceed further.” Miller- EL v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted). This Court finds that Thompson’s claims do not satisfy either standard. A separate order consistent with this opinion will be entered. DONE and ORDERED on July 30, 2024.
Xe United States Disthét Judge 215708
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