United States v. Julius Greer

• Court: Court of Appeals for the Third Circuit
• Decided: May 16, 2018
• Docket: 17-1996
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 17-1996

UNITED STATES OF AMERICA

v.

JULIUS GREER a/k/a “POONY”

Julius Greer, Appellant ________________

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2-10-cr-00711-01) District Judge: Honorable John R. Padova

Submitted Under Third Circuit LAR 34.1(a) March 5, 2018

Before: MCKEE, AMBRO, and RESTREPO, Circuit Judges

(Opinion filed: May 16, 2018) ________________

OPINION * ________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. McKEE, Circuit Judge

Julius Greer appeals from the sentence that was imposed following the Supreme

Court’s remand of his appeal from his original conviction for Hobbs Act robbery based

on the Court’s subsequent decision in Alleyne v. United States. 1 For the reasons that

follow, we will affirm the district court’s rejection of the arguments Greer made

following that remand.

I. 2

Greer raises two issues in this appeal. First, he asserts that the district court erred

in denying his motion to dismiss the indictment for a purported Speedy Trial Act

violation. Second, he claims that his conviction under 18 U.S.C. § 924(c) must be vacated

because Hobbs Act robbery is not a crime of violence under that statute.

A. Speedy Trial Act

The Speedy Trial Act requires that a defendant be tried within seventy days of his

indictment, information, or arraignment, whichever is later. 3 After seventy days have

elapsed, a defendant may move to dismiss the charges against him and the indictment

“shall be dismissed.” 4 When ruling on a motion to dismiss an indictment for purported

Speedy Trial Act violations, the district court must identify and tally the days included on

1 133 S.Ct. 2151 (2013). The Court granted Greer’s petition for certiorari after we affirmed his conviction on direct appeal. See United States v. Greer, 645 Fed. Appx. 205 (3d Cir. 2016). 2 The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 3 18 U.S.C. § 3161(c)(1). 4 18 U.S.C. § 3162(a)(2). 2 the speedy trial clock and count toward the seventy-day limit. 5 The district court may,

however, exclude certain days from this calculation, including delays that resulted from

the pretrial motions and court continuances. 6

The parties agree that this appeal centers on the district court’s exclusion of the

thirty-three days that elapsed from May 25, 2011 to June 27, 2011. 7 The district court

ostensibly excluded that time after granting the government’s April 28th motion for a

continuance. 8 However, the government sought that continuance because the assigned

prosecutor was scheduled to begin another trial on May 9th—the same day Greer’s trial

was to begin. 9 That scheduling conflict was presumably resolved by the time the court

granted the government’s request on May 24th. Accordingly, the court erred in granting

the government’s continuance request based on a nonexistent scheduling conflict.

However, Greer’s counsel did not object to that continuance. Instead, after the

court scheduled trial for June 27, 2011, he indicated his consent by stating: “that’s

fine.” 10 Additionally, Greer did not specifically challenge the district court’s decision to

exclude this time period from its Speedy Trial Act calculation when he moved to dismiss

the indictment. 11 When, as here, a defendant fails to object to an alleged error, that error

5 Zedner v. United States, 547 U.S. 489, 507, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). 6 18 U.S.C. § 3161(h)(1)(D) & (7)(A). 7 Br. for Appellant, 34–37; Br. for Appellee, 16. 8 Specifically, in granting the order the District Court wrote that “the failure to grant this continuance would result in a miscarriage of justice, and would unreasonably deny the government continuity of counsel and the reasonable time necessary for effective preparation, taking into account the exercise of due diligence[.]” App. 119. 9 App. 59–60. 10 App. 115. 11 App. 122–23. 3 is considered “forfeited” and we may review for plain error. 12 Accordingly, we may

reverse only if, inter alia, “the error ‘seriously affect[ed] the fairness, integrity, or public

reputation of judicial proceedings.” 13 Greer contends that he satisfied this standard

because the violation was both “blatant and egregious.” 14 We disagree.

There is nothing in the record to suggest that the district court’s erroneous decision

to grant the government’s moot continuance request affected the outcome of this case.

Greer does not allege, for example, that he was unable to present evidence or locate

witnesses as a result of the delay. 15 In fact, he does not proffer anything to suggest that

the delay seriously affected the judicial proceedings. We therefore decline to find plain

error and affirm the denial of his motion to dismiss.

B. Hobbs Act Robbery and § 924 Convictions

Greer also contends that his conviction under § 924(c)(3)(B) must be vacated

because Hobbs Act robbery is not a “crime of violence.” He advances three arguments in

support of this point. First, he claims that his Hobbs Act conviction cannot be considered

a crime of violence under § 924(c)(3)(B)’s residual clause because that clause is void for

vagueness. 16 Next, he claims that the substantive offense of Hobbs Act robbery does not

12 U.S. v. Vampire Nation, 451 F.3d 189, 203 (3d Cir. 2006) (quoting U.S. v. Dobson, 419 F.3d 231, 236 (3d Cir. 2005)). 13 Id. 14 Br. for Appellant, 37. 15 See Barker v. Wingo, 407 U.S. 514, 532 (1972) (“If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past.”); United States v. Young, 657 F.3d 408, 420 (6th Cir. 2011) (discussing witness unavailability an alleged spoliation of mitigation evidence as a result of a Speedy Trial violation). 16 Br. for Appellant, 41. 4 qualify as a crime of violence under § 924(c)(3)(A) because it does not require the “use,

attempted use, or threatened use of violent physical force.” 17 Finally, he asserts that

conspiracy to commit Hobbs Act robbery does not qualify as a crime of violence under §

924(c)(3)(A) for the same reason.

However, we have already held that Hobbs Act robbery qualifies as a predicate

crime of violence under § 924(c)’s elements clause when a defendant is

contemporaneously convicted of both crimes. 18 Greer was convicted of Hobbs Act

robbery and carrying or using a firearm during the commission of that robbery, and it is

therefore clear that the jury found that Greer’s robbery “sprang from the barrel” of a

gun. 19 Thus, it qualifies as a crime of violence. Accordingly, we will affirm Greer’s

conviction under 18 U.S.C. § 924(c) and need not address Greer’s other two grounds for

challenging his Hobbs Act conviction. 20

II.

For the foregoing reasons, we will affirm.

17 Id. at 41. 18 United States v. Robinson, 844 F.3d 137, 139 (3d Cir. 2016); United States v. Galati, 844 F.3d 152, 154–55 (3d Cir. 2016). 19 Robinson, 844 F.3d at 144. 20 See Robinson, 844 F.3d at 141 (holding that we need not address a challenge to the § 924(c)’s residual clause when it is clear that Hobbs Act robbery is a crime of violence under the elements clause). 5