1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff/Respondent, Case Nos. 15-cr-20089 / 

 19-cv-12017 

 Hon. Matthew F. Leitman 

v. 

D-3, JAMAR HARRIS, 

 Defendant/Petitioner. 

__________________________________________________________________/ 

ORDER DENYING PETITIONER’S MOTION TO VACATE SENTENCE 

(ECF No. 155) AND DENYING CERTIFICATE OF APPEALABILITY 

Petitioner Jamar Harris has filed a motion to vacate his sentence under 28 

U.S.C. § 2255 (“Section 2255”). For the reasons explained below, the motion is 

DENIED. 

I 

On February 17, 2015, Petitioner Jamar Harris was charged with (1) Hobbs 

Act robbery in violation of 18 U.S.C. § 1951(a)1

 and (2) using a firearm during and 

 

1

 Section 1951(a) of the Hobbs Act sets forth the list of prohibited conduct. It 

provides: 

Whoever in any way or degree obstructs, delays, or affects commerce or 

the movement of any article or commodity in commerce, by robbery or 

extortion or attempts or conspires so to do, or commits or threatens 

physical violence to any person or property in furtherance of a plan or 

purpose to do anything in violation of this section shall be fined under 
2 

in relation to the commission of a crime of violence in violation of 18 U.S.C. 

§ 924(c)(1)(A) (“Section 924(c)(1)(A)”). (See Indictment, ECF No. 16.) The “crime 

of violence” underlying the Section 924(c)(1)(A) charge was Harris’ alleged Hobbs 

Act robbery. (Id.) 

Harris pleaded guilty to the Hobbs Act robbery charge on October 13, 2015. 

(See Plea Hr’g, ECF No. 75.) On December 2, 2015, a jury convicted Harris on the 

Section 924(c)(1)(A) charge. (Jury Verdict, ECF No. 99, PageID.570.) Prior to the 

jury’s deliberations, the Court instructed the jurors that Hobbs Act robbery is a crime 

of violence for Section 924(c)(1)(A) purposes. (12/2/2015 Trial Tr., ECF No. 107, 

PageID.964.) 

Harris now moves to vacate his sentence under Section 2255. (See Mot. to 

Vacate, ECF No. 155.) He argues that in light of recent Supreme Court rulings, his 

Hobbs Act robbery was not a crime of violence under Section 924(c)(1)(A). (See id., 

PageID. 1335, 1340–47 (citing, among other cases, Johnson v. United States, 135 S. 

 

this title or imprisoned not more than twenty years, or both. 

18 U.S.C. § 1951(a) (emphasis added). Section 1951(b) of the Hobbs Act then 

defines “robbery” as used in Section 1951(a). The issues raised by Harris turn on 

the scope of “robbery” under the Act. The Court sets forth that definition and 

analyzes its scope below.
3 

Ct. 2551 (2015) and Sessions v. Dimaya, 138 S. Ct. 1204 (2018)).) For the reasons 

explained below, the Court disagrees and therefore DENIES Harris’ Motion. 

II 

Section 924(c)(1)(A) “prohibits using a firearm in furtherance of a crime 

of violence.” Deatrick v. Sherry, 451 F. App’x 562, 565 (6th Cir. 2011). For 

purposes of Section 924(c)(1)(A), a “crime of violence” is a felony that either: 

(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). Subsection (A) of the definition is known as the “elements 

clause,” while Subsection (B) is called the “residual clause.” See Knight v. United 

States, 936 F.3d 495, 497 (6th Cir. 2019). The Supreme Court recently invalidated 

the residual clause as unconstitutionally vague. See United States v. Davis, 139 S. 

Ct. 2319 (2019). But an offense is still a “crime of violence” if it satisfies the 

elements clause. See, e.g., Knight, 936 F.3d at 497 (holding that assault and robbery 

of a postal employee constituted a “crime of violence” because it satisfied the 

elements clause). 

Thus, the question posed by Harris’ motion is: does Hobbs Act robbery 

constitute a “crime of violence” under the elements clause? It does. 
4 

 Courts apply a “categorial approach” to determine whether an offense 

qualifies as a “crime of violence” under the elements clause. United States v. Rafidi, 

829 F.3d 437, 444 (6th Cir. 2016). “Under [that] approach, a court ‘focuses on the 

statutory definition of the offense, rather than the manner in which an offender may 

have violated the statute in a particular circumstance.’” Id. (quoting United States v. 

Denson, 728 F.3d 603, 607 (6th Cir. 2013)). “Courts use a variant of this method – 

labeled (not very inventively) the ‘modified categorical approach’ – when a prior 

conviction is for violating a so-called ‘divisible statute,’ which sets out one or more 

elements of the offense in the alternative.” Id. (quotation omitted). A court applying 

the modified categorical approach “consult[s] a limited class of documents, such as 

indictments and jury instructions, to determine which alternative formed the basis of 

the defendant’s prior conviction.” Descamps v. United States, 570 U.S. 254, 257 

(2013). 

The Court applies the modified categorical approach here because the Hobbs 

Act is divisible: it is violated when a defendant interferes with interstate commerce 

by robbery or, in the alternative, by extortion. See United States v. Gooch, 850 F.3d 

285, 291 (6th Cir. 2017) (ruling that the Hobbs Act is a divisible statute). Here, 

Harris’ indictment and jury instructions make clear that Harris was charged with and 

convicted of Hobbs Act robbery, not Hobbs Act extortion. (See Indictment, ECF No. 

16, PageID.38–39 (charging Harris with “Interference with Commerce by 
5 

Robbery”); 12/2/2015 Trial Tr., ECF No. 107, PageID.964 (informing the jury that, 

“In this case that crime of violence is the robbery of that Radio Shack on January 

18th in Lincoln Park”).) Indeed, Harris himself acknowledges that he pleaded guilty 

to Hobbs Act robbery. (See Mot. to Vacate, ECF No. 155, PageID.1336.) 

Hobbs Act robbery is a “crime of violence.” The Hobbs Act defines “robbery” 

as: 

the 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.A. § 1951(b). This definition of robbery “clearly ‘has as an element the 

use, attempted use, or threatened use of physical force against the person or 

property of another’ as necessary to constitute a crime of violence under [the 

elements clause].” Gooch, 850 F.3d at 291–92 (6th Cir. 2017) (quoting Section 

924(c)(3)(A)). Thus, Hobbs Act robbery is a “crime of violence.” Id.; see also 

United States v. Camp, 903 F.3d 594, 597 (6th Cir. 2018) (confirming that Hobbs 

Act robbery is a “crime of violence” under the elements clause).2 

 

2

 Every other circuit court to address the issue agrees with the Sixth Circuit that 

Hobbs Act robbery is a “crime of violence” under the elements clause. See Gooch, 

850 F.3d at 292 (collecting cases from the Second, Third, Seventh, Eighth, Ninth, 

and Eleventh Circuits). 
6 

 Because the Hobbs Act robbery that Harris committed is a “crime of 

violence,” Harris was properly convicted of using a firearm during and in connection 

with a crime of violence in violation of Section 924(c)(1)(A). Therefore, the Court 

will deny Harris’ motion for relief from his sentence. 

III 

 Harris may not appeal the Court’s decision unless the Court issues a certificate 

of appealability. See 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22. A certificate of 

appealability may issue “only if the applicant has made a substantial showing of the 

denial of a constitutional right.” § 2253(c)(2). That standard is met when 

“reasonable jurists could debate whether . . . the petition should have been resolved 

in a different manner.” Welch v. United States, 136 S. Ct. 1257, 1263 (2016) (quoting 

Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, reasonable jurists would not 

debate the Court’s conclusion that Hobbs Act robbery is a “crime of violence” and 

that Harris is therefore not entitled to the relief he seeks. See Camp, 903 F.3d at 597 

(explaining that “binding precedent” of Gooch “forecloses [the] argument” that 

Hobbs Act robbery is not a “crime of violence”). Thus, a certificate of appealability 

is not warranted in this case. 
7 

IV 

For the reasons explained above, IT IS HEREBY ORDERED that Harris’ 

Motion (ECF No. 155) is DENIED, and the Court DENIES a certificate of 

appealability. 

s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: September 30, 2019 

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

parties and/or counsel of record on September 30, 2019, by electronic means and/or 

ordinary mail. 

 s/Holly A. Monda 

 Case Manager 

 (810) 341-9764