Mack v. United States ( 2020 )

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division Case Number: 19-23584-CIV-MORENO CAUDREY MACK, Plaintiff, Vs. UNITED STATES OF AMERICA, Defendant. □□ ORDER ADOPTING MAGISTRATE JUDGE REID’S REPORT AND RECOMMENDATION AND DENYING MOTION TO VACATE THE MATTER was referred to the Honorable Lisette M. Reid, United States Magistrate Judge, for a Report and Recommendation on pro se Petitioner’s Motion to Vacate made pursuant to 28 U.S.C. § 2255, filed on August 27, 2019. The Magistrate Judge filed a Report and Recommendation (D.E. 11) on March 23, 2020. The Court has reviewed the entire file and record. The Court has made a de novo review of the issues that the objections to the Report and Recommendation present, and being otherwise fully advised in the premises, it is ADJUDGED that Magistrate Judge Reid’s Report and Recommendation is AFFIRMED and ADOPTED. Accordingly, the Motion to Vacate is DENIED. Petitioner originally pled guilty to two counts: (1) Hobbs Act robbery under 18 U.S.C. § 1951(a) and (2) brandishing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(A)Gii) in connection with the robbery. Petitioner now argues in his motion and objections that both convictions are unconstitutional in light of United States v. Davis, 139 S. Ct. 2319 (2019), which invalidated the residual clause of section 18 U.S.C. § 923(c)(3)(B). The problem with Petitioner’s first argument seeking to overturn his first conviction is that his Hobbs Act robbery conviction is a crime of violence under the elements clause of section 924(c)(3)(A), as opposed to the now invalid residual clause of 924(c)(3)(B). See United States v. St. Hubert, 909 F.3d 335, 345 (11th Cir. 2018). As for Petitioner’s second argument that his second conviction is invalid, it similarly fails as brandishing a firearm (an attempted use or threatened use of force) is also a crime of violence under the elements clause. See In re Fleur, 824 F.3d 1337, 1341-42 (11th Cir. 2016). Consistent with the Report and Recommendation, it is further ADJUDGED that no certificate of appealability issue. DONE AND ORDERED in Chambers at Miami, Florida, this 8th of April 2020. FEDERICO A. MORENO UNITED STATES DISTRICT JUDGE Copies furnished to: United States Magistrate Judge Lisette M. Reid Counsel of Record Caudrey Mack 16476-104 Coleman Medium Federal Correctional Institution Inmate Mail/Parcels Post Office Box 1032 Coleman, FL 33521 PRO SE