UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff/Respondent,

v.

JEREMY LOCKETT,

Defendant/Petitioner.

 /

Case No. 15-20010-3

Honorable Nancy G. Edmunds 

OPINION AND ORDER DENYING PETITIONER'S MOTION TO CORRECT

SENTENCE UNDER 28 U.S.C. § 2255 [107]

Before the Court is Petitioner Jeremy Lockett’s motion to correct sentence under 28

U.S.C. § 2255. (Dkt. no. 107, "Petitioner's Motion.") The Court has jurisdiction over this

motion pursuant to 28 U.S.C. § 2255, based on Petitioner's Rule 11 plea agreement

entered in this Court on July 14, 2015. (Dkt. no. 39.) This Court is familiar with the previous

proceedings, has reviewed the pleadings and supporting documentation, and Petitioner has

suggested no evidence to support his motion. The motion, files and records of the case

conclusively show that the Petitioner is entitled to no relief and the Court finds that an

evidentiary hearing on this matter is not necessary. See 28 U.S.C. § 2255(b). The Court

has reviewed these pleadings and denies Petitioner's motion with prejudice. 

I. Background Facts and Procedural History

On or about December 29, 2014, Jeremy Lockett and two other individuals

entered a Dollar General store located in Dearborn, Michigan. Defendant

Lockett knew his companion was armed with a pistol when they entered the
business and that the gun would be used to rob the store. The trio shopped

for items and placed them on the counter for the cashier. Lockett’s companion

then brandished a firearm and announced a robbery. The cashier opened the

cash register and backed away. Lockett and his companions took money and

store property before fleeing the location. Dollar General is a national retailer

which engages in business that affects interstate commerce. 

(Rule 11 Plea Agreement 3, dkt. 39.) 

On March 17, 2015, Petitioner was charged in a First Superseding Indictment with

Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), interference with commerce by

robbery (Count 7), and with using a firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c) (Count 8). (First Superseding Indictment, dkt. 23.) On July

14, 2015, Petitioner pleaded guilty to these counts, pursuant to a Rule 11 plea agreement.

(Rule 11 Plea Agreement, dkt. no. 39.) 

On October 26, 2015, the Court sentenced Petitioner to a total of 96 months: twelve

months as to count 7, and 84 months as to count 8 to run consecutive to count 7.

(Judgment, dkt. 80.) On July 15, 2016, Petitioner filed his motion to correct sentence under

28 U.S.C. § 2255. (Pet’r’s Mot., dkt. 107.)

II. Standard

28 U.S.C. § 2255 allows a prisoner in custody under sentence of a federal court to 

"move the court which imposed the sentence to vacate, set aside or correct the sentence"

when "the sentence was imposed in violation of the Constitution or laws of the United

States, or that the court was without jurisdiction to impose such sentence, or that the

sentence was in excess of the maximum authorized by law, or is otherwise subject to

collateral attack." 28 U.S.C. § 2255(a).

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III. Analysis: Johnson Does Not Apply

Petitioner moves to vacate his sentence in light of Johnson v. United States, 135 S.

Ct. 2551 (2015). Johnson held that the residual clause of the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. Id. at 2557. Petitioner

was charged with and sentenced pursuant to section 924(c) for Hobbs Act Robbery; he

argues that, following Johnson, his “conviction for Interference with Commerce by Robbery

no longer qualifies as a ‘crime of violence.’”1

 (Pet’r’s Mot., dkt. 107.) 

 For purposes of 18 U.S.C. § 924(c), a “crime of violence” is defined as 

[A]n offense that is a felony and--

(A) has as an element the use, attempted use, or threatened

use of physical force against the person or property of another,

or

(B) that by its nature, involves a substantial risk that physical

force against the person or property of another may be used in

the course of committing the offense.

18 U.S.C. § 924(c)(3). Subpart A “is commonly referred to as the ‘force’ clause,” and

subpart B “is commonly referred to as the ‘residual’ clause.” United States v. Moore, No.

15-20552, 2016 WL 2591874, at *3 (E.D. Mich. May 5, 2016)

Petitioner’s motion must fail where the offense, Hobbs Act robbery, is a crime of

violence under the force clause of § 924(c), subpart A. Whether a crime is a “crime of

1

 Petitioner moved to stay this motion pending the United States Supreme

Court’s decision in Beckles v. United States, 137 S. Ct. 886 (2017). The United States

Sentencing Guideline “crime of violence” residual clause is identically worded to the

residual clause that was found unconstitutionally vague in Johnson (§ 924(e)(2)(b)). The

Supreme Court ruled in Beckles that the Federal Sentencing Guidelines are not subject

to a challenge under the void-for-vagueness doctrine. Id. at 890. Beckles does not offer

Petitioner the relief he seeks. This Court found Petitioner’s motion to stay moot after

Beckles was decided. (Text Only Order July 31, 2017.) 

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violence” is determined by “looking to the statutory definition of the crime, rather than to the

evidence presented to prove it.” United States v. Taylor, 176 F.3d 331, 337 (6th Cir. 1999).

Under the Hobbs Act, robbery is defined as 

[T]he unlawful taking or obtaining of personal property from the person or in

the presence of another, against his will, by means of actual or threatened

force, or violence, or fear of injury, immediate or future, to his person or

property, or property in his custody or possession, or the person or property

of a relative or member of his family or of anyone in his company at the time

of the taking or obtaining.

18 U.S.C. § 1951(b)(1). 

Multiple courts, including this one, have held that “Hobbs Act robbery qualifies as a

crime of violence under the force clause of section 924(c)(3)(A), not the residual clause.”

See e.g., Washington v. United States, No. 11-20483, 2016 WL 4089133, at *1 (E.D. Mich.

Aug. 2, 2016); Byrd v. United States, 1:16-cv-186, 2016 WL 4009884, at *2 (E.D. Tenn.

July 25, 2016) (noting that even if Johnson’s reasoning invalidated § 924(c)’s residual

clause, Hobbs Act robbery would remain a crime of violence under the force clause of §

924(c)). The Sixth Circuit recently joined a number of other circuits with its decision in

United States v. Gooch, 850 F.3d 285 (6th Cir. 2017), when it found that “Hobbs Act

robbery constitutes a crime of violence.”2 Id. at 292. 

Even if subpart B, the residual clause, were relied upon to establish that Hobbs Act

2

 The Sixth Circuit concluded that 18 U.S.C. § 1951 (Hobbs Act) is “a divisible

statute setting out separate crimes of Hobbs Act robbery and Hobbs Act extortion.”

Gooch, 850 F.3d at 291. The Sixth Circuit looked to the indictment and jury instructions

to “determine whether the conviction necessarily depended on the commission of a

crime of violence.” Id. In both, the reference was to Hobbs Act “robbery.” Id. Like Gooch,

Petitioner’s indictment, plea and judgment in this instance refer to robbery pursuant to

18 U.S.C. § 1951. (First Superceding Indictment, Counts 7, 8, dkt. 23; Rule 11 Plea 

Agreement 1.B, .C, dkt. 39; Judgment, dkt. 80.)

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robbery is a crime of violence, the Sixth Circuit has already determined that Johnson does

not affect section 924(c)(3)(B)’s definition of crime of violence. See U.S. v. Taylor, 814 F.3d

340, 376 (6th Cir. 2016) (recognizing that “[t]here are significant differences making the

definition of “crime of violence” in § 924(c)(3)(B) narrower than the definition of “violent

felony” in the ACCA residual clause”); see also United States v. Taylor, 176 F.3d 331, 337-

38 (6th Cir. 1999) (“a conspiracy to commit a robbery that violates the Hobbs Act is

necessarily a conspiracy that, by its nature, involves a substantial risk that physical force

may be used against the person or property of another, and therefore is a crime of violence

within the meaning of section 924(c).”) Petitioner’s motion to vacate his sentence on the

basis of Johnson is denied. 

IV. Certificate of Appealability

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed

unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253(c). Rule 11

of the Rules Governing Section 2255 Proceedings requires that a district court must “issue

or deny a certificate of appealability when it enters a final order adverse to the applicant.

. . . If the court issues a certificate, the court must state the specific issue or issues that

satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Rule 11 – Rules Governing § 2255

Proceedings. 

A certificate of appealability must issue before an appeal may be taken to the court

of appeals from “the final order in a proceeding under section 2255.” 28 U.S.C. §

2253(c)(1)(B). The court may issue a certificate of appealability if the petitioner “has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

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[T]he petitioner need not show that he should prevail on the merits. He has

already failed in that endeavor. Rather, he must demonstrate that the issues

are debatable among jurists of reason; that a court could resolve the issues [in

a different manner] or that the questions are "adequate to deserve

encouragement to proceed further."

Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983); Hence v. Smith, 49 F. Supp. 2d 547, 549

(E.D. Mich. 1999). For the reasons set forth above, the Court finds that Petitioner has not

made a substantial showing of the denial of a constitutional right. See 28 U.S.C. §

2253(c)(2). 

V. Conclusion

For the reasons set forth herein, the Court DENIES WITH PREJUDICE Petitioner's

motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 and DENIES

Petitioner a certificate of appealability. 

SO ORDERED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: September 20, 2017

I hereby certify that a copy of the foregoing document was served upon counsel of record 

and Petitioner on September 20, 2017, by electronic and/or ordinary mail.

s/Carol J. Bethel 

Case Manager

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