Vatuvei v. United States

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

SIONE VATUVEI, MEMORANDUM DECISION AND ORDER DENYING PETITIONER’S Petitioner, MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT v. SENTENCE BY A PERSON IN FEDERAL CUSTODY UNITED STATES OF AMERICA, Case No. 2:20-CV-607 TS Criminal Case No. 2:09-CR-758 DB Respondent.

District Judge Ted Stewart

This matter is before the Court on Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. For the reasons discussed below, the Court will deny the Motion and dismiss this case. I. BACKGROUND Petitioner was convicted of discharging a firearm during and in relation to a Hobbs Act Robbery in violation of 18 U.S.C § 924(c) and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Petitioner now argues that his underlying § 924(c) conviction is no longer a crime of violence in light of United States v. Davis.1 II. DISCUSSION Petitioner asserts that his conviction under 18 U.S.C. § 924(c) is no longer a crime of violence. In United States v. Davis, the Supreme Court held that the crime of violence definition in § 924(c)(3)(B) was unconstitutionally vague.2 However, the definition of crime of violence in

1 139 S. Ct. 2319 (2019). 2 Id. at 2336. § 924(c)(3)(A) remains valid. The United States Court of Appeals for the Tenth Circuit has repeatedly held that Hobbs Act Robbery, Petitioner’s predicate offense, is categorically a crime of violence under § 924(c)(3)(A).° The Tenth Circuit has continued to so hold after Davis.* Because Petitioner’s § 924(c) conviction remains valid under the elements clause of § 924(c)(3){A), his Motion fails. Ill. CONCLUSION It is therefore ORDERED that Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Docket No. | in Case No. 2:20-CV-607 TS) is DENIED and DISMISSED. It is further ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an evidentiary hearing is not required. It is further ORDERED that pursuant to Rule 11(a) of the Rules Governing § 2255 Cases, the Court DENIES Petitioner a certificate of appealability. DATED this 8th day of January, 2021. BY THE COURT:

Uarted States District Judge

3 See United States v. Melgar-Cabrera, 892 F.3d 1053, 1064-66 (10th Cir. 2018). * See United States v. Myers, 786 F. App’x 161, 162 (10th Cir. 2019).