United States District Court, S.D. Florida
REPORT AND RECOMMENDATION OF MAGISTRATE
matter is before the Court on a pro se Motion to
Vacate filed by Movant, Cedrick Thomas, pursuant to 28 U.S.C.
§ 2255. [CV-ECF 1. Movant is currently incarcerated and
serving an eighty-four month and one day term of imprisonment
following his guilty plea to one count of conspiracy to
commit Hobbs Act robbery and one count of brandishing a
firearm in furtherance of a crime of violence, in the United
States District Court for the Southern District of Florida,
No. 16-20870-CR-SCOLA. [CR-ECF 58].
brought this action because on June 24, 2019, the Supreme
Court of the United States held that 18 U.S.C. §
924(c)(3)(B) is unconstitutionally vague. See United
States v. Davis, 588 U.S.__, 139 S.Ct. 2319 (2019).
cause has been referred to the Undersigned for ruling on all
pre-trial, non-dispositive matters and for Report and
Recommendation on any dispositive matters pursuant to 28
U.S.C. § 636(b)(1)(B) and S.D. Fla. Admin. Order 2019-2.
[CV-ECF 2]. After conducting an initial review of the Motion
to Vacate pursuant to Rule 4(b) Governing Section 2255
Proceedings, the Undersigned ordered the Government to either
file a notice conceding that Movant is entitled to relief or
show cause why the Motion to Vacate should not be granted.
[CV-ECF 5 p. 2].
the novel issues implicated by Movant's pro se
Motion to Vacate, the Undersigned determined that pursuant to
18 U.S.C. § 3006A(a)(2)(B), it would be in the interest
of justice to appoint attorney Ira N. Loewy, Esq. to
represent Movant at all further stages of this proceeding
before both this Court and any appellate proceedings. [CV-ECF
Motion to Vacate contains one claim raising a single ground
for relief; that Movant's conviction is unconstitutional
because his conviction for brandishing a firearm in
furtherance of a crime of violence relied upon the now-void
18 U.S.C. § 924(c)(3)(B). [CV-ECF 1 p. 4]. After careful
consideration of each parties' filings and the record in
Movant's criminal case, the Undersigned
RECOMMENDS that the Motion to Vacate [CV-ECF
1] be DENIED, for the reasons discussed
Factual and Procedural History
November 10, 2016, Movant was indicted and charged with five
counts: conspiracy to commit a Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a) (Count 1); Hobbs Act
robbery, in violation of 18 U.S.C. §§ 1951(a) and 2
(Count 2); brandishing a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. §§
924(c)(1)(A)(ii) and 2 (Count 3); Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a) (Count 6); and
brandishing a firearm in furtherance of a crime of violence,
in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 7).
[CR-ECF 1]. Importantly, the brandishing charge in Count 3
referenced Movant's Hobbs Act robbery charge in Count 2
as the predicate crime. [Id.].
April 18, 2017, Movant pleaded guilty to Count 1 and Count 3
of the Indictment and executed a written Plea Agreement
[CR-ECF 36] and Factual Proffer. [CR-ECF 37]. That same day,
Movant appeared before the Court for a change of plea hearing
where the Court accepted Movant's plea. [CR-ECF 38].
Factual Proffer, Movant stipulated that on April 25, 2016, he
drove his co-defendant to a shopping mall where he then
served as a look-out for his co-defendant. [CR-ECF 37 p. 1].
A short time later, Movant's co-defendant
“brandished a silver-colored firearm” at a mall
employee and demanded a moneybag the employee was carrying.
[Id.]. After Movant's co-defendant took the
moneybag, his co-defendant ran back to Movant's vehicle
and they drove away together. [Id.]. Movant further
stipulated that his actions were coordinated with his
co-defendant for the purpose of obtaining the money, totaling
$3, 979.96, and that his actions affected interstate
change of plea hearing, the Court questioned Movant to
determine if there was a factual basis to support each of the
essential elements of Movant's alleged crimes. [CV-ECF
14-1 pp. 12-14]. Specifically, the Court asked Movant if
“on April 20, 2016, did you drive a car with Angel
Oliva to the Aventura Mall, and did you go there knowing that
Mr. Oliva was going to commit an armed robbery? And did you
act as a lookout and the getaway driver from the robbery? And
did Mr. Oliva brandish a firearm and steal a total of almost
$4, 000 from an employee of the Godiva store? And did that
action of stealing money from the store affect interstate
commerce and foreign commerce?” [Id. at pp.
brief asides not relevant to this case, the Court concluded
by finally asking Movant: “Did you do all that?”
(in reference to the above stream of questions) “And
are all the other facts in the written factual proffer that
you signed true and correct?” to which Movant replied:
“Yes, Your Honor.” [Id. at p. 13].
Movant then confirmed his guilty plea, and it was accepted by
the Court. [Id. at pp. 13-14].
July 18, 2018 sentencing hearing, the Government recommended
that Movant be sentenced to time served for Count 1 and the
84-month mandatory minimum sentence for Count 3. [CV-ECF 14-2
p. 5]. The Court sentenced Movant to be imprisoned for a
total of 84 months and one day, consisting of a term of one
day credit time served for Count 1 and a consecutive term of
84 months for Count 3. [Id. at pp. 13-14].
Timeliness of the Motion to Vacate
stated, the Court entered the Judgment sentencing Movant in
his criminal case on July 18, 2017. [CR-ECF 58]. Movant did
not file a notice of appeal. Thus, his case became final
fourteen days later, on August 1, 2017. See Fed. R.
App. P. 4(b)(1)(A). Accordingly, Movant originally had until
August 1, 2018 to file a Motion to Vacate. See 28