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Thomas v. United States

United States District Court, S.D. Florida

December 5, 2019

CEDRICK THOMAS, Movant
v.
UNITED STATES OF AMERICA, Respondent

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          REID, MAGISTRATE JUDGE

         I. Introduction

         This 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[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].

         Movant 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).

         This 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].

         Considering 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 7].

         The 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 below.

         II. Factual and Procedural History

         On 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.].

         On 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].

         In the 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 commerce. [Id.].

         At the 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. 12-13].

         After 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].

         At the 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].

         III. Timeliness of the Motion to Vacate

         As 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 ...


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