IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

 v.

ELIJAH SMITH,

 Defendant/Petitioner.

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Nos. 04-cr-411-1 and 05-cr-126-2

MEMORANDUM

J. Younge October 19, 2023

I. INTRODUCTION

Petitioner Elijah Smith filed his Motion to Vacate, Set Aside or Correct the Sentence 

pursuant to 28 U.S.C. § 2255 on June 16, 2016. (ECF No. 163.)1 Petitioner filed a pro se

Motion to Amend his Section 2255 Motion on September 12, 2023. (ECF No. 198.) The Court 

finds this matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7.1(f). 

For the reasons stated in the following Memorandum, these Motions are Denied.

II. FACTUAL/PROCEDURAL BACKGROUND

In Criminal Number 04-411-1, the Petitioner was charged in a seventeen-count 

indictment with conspiracy to interfere, and interference, with interstate commerce by robbery in 

violation of 18 U.S.C. §§ 1951(a) and 2 and use of a firearm during a crime of violence in 

violation of 18 U.S.C. § 924(c)(1). See Indictment, ECF No. 12. These charges stemmed from 

participation in six armed robberies between December 23, 2003, and January 4, 2004. See id. 

On January 11, 2005, the Petitioner pled guilty to conspiracy to interfere, and interference, with 

1 This Section 2255 Motion was filed in two criminal cases, docketed at 04-cr-411-JMY-1 and 

05-cr-126-JMY-2. Unless otherwise stated, all ECF references are to the criminal case docketed 

at 04-cr-411-JMY-1.

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interstate commerce by robbery (Counts 1, 4-7, 10, 12, 14, & 16) and use of a firearm during the 

commission of those crimes (Counts 5 & 7) pursuant to a plea agreement. (ECF Nos. 89 & 90.) 

This plea agreement stated that the “defendant agrees and stipulates that in each robbery charged 

in the indictment a firearm was used to facilitate its commission; and further agrees and 

stipulates that in each robbery charged in the indictment, a firearm was brandished.” (Guilty 

Plea Agreement, ECF No. 89, p. 10.) The Petitioner was sentenced to 384 months’ 

imprisonment pursuant to Section 924(c)’s mandatory minimums, and that sentence was to run 

consecutively to 210 months’ imprisonment for the other counts of conviction for a total of 594 

months. See ECF No. 124. 

In Criminal Number 05-cr-126-2, the Petitioner was charged in a five-count indictment 

with conspiracy to interfere, and interference, with interstate commerce by robbery, in violation 

of 18 U.S.C. §§ 1951(a) and 2 and use of a firearm during a crime of violence in violation of 18 

U.S.C. § 924(c)(1). See Indictment, ECF No. 1, docketed at: 05-cr-126-2. These charges 

stemmed from participation in an armed robbery on July 11, 2003. See id. On May 12, 2005, 

the Petitioner pled guilty to conspiracy to interfere, and interference, with interstate commerce 

by robbery (Counts 1 & 4) and use of a firearm during the commission of those crimes (Count 5) 

pursuant to a plea agreement. (ECF Nos. 12 & 13, docketed at: 05-cr-126-2.) The Petitioner 

was sentenced to 84 months’ imprisonment pursuant to § 924(c)’s mandatory minimum, and that 

sentence was to run consecutively to 210 months’ imprisonment for the other counts of 

conviction. See ECF No. 53, docketed at: 05-cr-126-2. In total, the Petitioner was sentenced to 

678 months’ imprisonment in Criminal Numbers 04-cr-411-1 and 05-cr-126-2.

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On June 16, 2016, Defendant filed a timely2 Motion to Vacate, Set Aside, or Correct the 

Sentence pursuant to 28 U.S.C. § 2255(a) in both cases. (ECF No. 163.) This Motion challenges 

the constitutionality of his convictions based on the Supreme Court holding in Johnson v. United 

States, 576 U.S. 591 (2005) and requests that his Court vacate Petitioner’s Section 924(c) 

conviction and sentence. See ECF No. 163. This matter was stayed on September 25, 2019, 

following the Supreme Court’s holding in United States v. Davis, 139 S. Ct. 2319 (2019) and 

pending resolution of the controlling issues by higher courts. (ECF No. 176.) On September 12, 

2023, Defendant filed his pro se Motion to Amend his Section 2255 Motion based on Davis

being retroactively applicable. See ECF No. 197. The Government filed its Response to 

Defendant’s Section 2255 Motion and Motion to Amend on September 29, 2023. (ECF No. 

198.)

III. LEGAL STANDARD

A federal prisoner may move the court to vacate, set aside, or correct the sentence where 

the sentence imposed was unconstitutional, imposed by a court that lacked jurisdiction, in excess 

of the lawful maximum, or otherwise subject to collateral attack. 28 U.S.C. § 2255(a). The 

wrongful application of a mandatory minimum sentence or other sentencing enhancements to 

ineligible charges would constitute a violation of a criminal defendant’s due process rights. U.S. 

Const. amend. V. 

IV. DISCUSSION

A completed Hobbs Act robbery is a qualifying predicate offense for the application of 

Section 924(c)’s mandatory minimum. The Hobbs Act prohibits committing, attempting to 

2 There is a one-year limitations period that runs from “the date on which the right asserted was 

initially recognized by the Supreme Court.” 28 U.S.C. § 2255(f)(3). Johnson v. United States, 

the relevant benchmark case, was decided on June 26, 2015. 576 U.S. 591 (2005).

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commit, or conspiring to commit robbery affecting interstate commerce. 18 U.S.C. § 1951(a). A 

conviction for Hobbs Act robbery requires proof that the defendant took another’s property 

unlawfully “by means of actual or threatened force,” but the use of force is not required in

convictions for attempted robbery or conspiracy to commit robbery. 18 U.S.C. §§ 1951(a)-(b). 

Section 924(c)’s mandatory minimum sentences apply to persons brandishing a firearm during 

and in relation to ‘crimes of violence.’ 18 U.S.C. § 924(c)(1)(A). A crime of violence, as 

defined in Section 924(c)’s elements clause, is one that “has as an element the use, attempted 

use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 

924(c)(3)(A). A crime of violence had been alternatively defined in Section 924(c)’s residual 

clause as “involv[ing] a substantial risk that physical force against the person or property of 

another may be used in the courses of committing the offense,” a provision nearly identical to the 

residual clause of the Armed Career Criminal Act held to be unconstitutionally vague in 

Johnson. 18 U.S.C. § 924(c)(3)(B); 135 S. Ct. at 2557-59. The Supreme Court subsequently 

invalidated the residual clause in Section 924(c). See Davis, 139 S. Ct. 

Following the invalidation of Section 924(c)’s residual clause, the Supreme Court 

determined that an attempted Hobbs Act robbery does not qualify as a predicate crime of 

violence for the purposes of Section 924(c)’s sentencing enhancements because it does not 

require proof of the use, or attempted use, of force. United States v. Taylor, 142 S. Ct. 2015, 

2021 (2022). However, a completed Hobbs Act robbery remains a crime of violence under 

Section 924(c)’s surviving elements clause. United States v. Stoney, 62 F.4th 108 (3d Cir. 2023). 

The Third Circuit has joined with other Circuit courts in determining that the predicate crime, 

and whether it qualifies as a crime of violence, can be established by the factual record, including 

by examination of the “plea agreement and attendant factual proffer.” Id. at 112 (internal 

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quotations omitted). Accordingly, defendants cannot avoid liability by arguing that they had 

pled to the minimum conduct described in Section 1951(a) where the facts establish that there 

was a completed robbery. Id.

The factual record shows that Section 924(c) was properly applied to the Petitioner’s 

convictions. The Petitioner pled guilty to a total of seven gunpoint robberies, which included 

pleading guilty to the use of a firearm during the commission of those robberies. These 

constitute completed Hobbs Act robberies and are qualifying predicate crimes for the application 

of Section 924(c)’s mandatory minimums. See id. The Petitioner’s reliance on Davis in his 

Motion to Amend has no effect on this categorization. As such, this Court will not disturb the 

Petitioner’s sentence. 

V. CONCLUSION

For the foregoing reasons, the Petitioner’s Motion to Vacate, Set Aside, or Correct the 

Sentence and Motion to Amend are Denied.

An appropriate Order follows.

IT IS SO ORDERED.

BY THE COURT:

/s/ John Milton Younge

Judge John Milton Younge 

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