UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

v. ) 1:12-CR-87-TLS

) (1:16-CV-202)

CRAIG WHIGUM )

OPINION AND ORDER

The Defendant, Craig Whigum, is serving a sentence for Hobbs Act robbery, in violation

of 18 U.S.C. § 1951(a)(1), and using a firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c). The Defendant now seeks to vacate his conviction and sentence

under § 924(c) [Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By

Person in Federal Custody, ECF No. 184]. His Motion is predicated on the Supreme Court’s

decision in Johnson v. United States, 135 S. Ct. 2551 (2015). The Defendant maintains that his §

924(c) conviction cannot stand after Johnson because his underlying offense is not a crime of

violence. 

The Defendant filed his Motion on June 9, 2016—within the one-year period set forth in

§ 2255(f)(3), based on the Supreme Court’s June 26, 2015 decision in Johnson, which is

retroactively applicable to cases on collateral review. Welch v. United States, 136 S. Ct. 1257,

1265 (2016) (“Johnson is . . . a substantive decision and so has retroactive effect . . . in cases on

collateral review.”); Price v. United States, 795 F.3d 731, 734 (7th Cir. 2015) (Johnson

announced a new substantive rule which applies retroactively on collateral review). The Court

treats the Motion as timely filed.
ANALYSIS

Section 2255 allows a defendant to move to vacate, set aside, or correct a sentence that

was imposed in violation of the Constitution of the United States. See 28 U.S.C. § 2255(a).

Relief under § 2255 is “available only in extraordinary situations,” requiring an error of

constitutional or jurisdictional magnitude or a fundamental defect that resulted in a complete

miscarriage of justice. Blake v. United States, 723 F.3d 870, 878–79 (7th Cir. 2013). 

To sustain a conviction under 18 U.S.C. § 924(c)(3), the government must prove that the

defendant (1) used or carried a firearm and (2) did so during and in relation to a “crime of

violence.” Under § 924(c)(3), the term “crime of violence” is “an offense that is a felony” that

(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)(A)–(B). Subsection (A) is known as the elements clause, and

subsection (B) is referred to as the residual clause.

The substantive crime of violence (or drug trafficking crime) for which the person may

be prosecuted is identified in the § 924(c) charge. See Davila v. United States, 843 F.3d 729, 731

(7th Cir. 2016) (noting that a § 924(c) offense is a stand-alone crime, not a sentencing

enhancement, for which no underlying conviction needs to be obtained). Here, the Indictment

identifies the predicate crime of violence as Hobbs Act robbery, in violation of 18 U.S.C.

§ 1951(a). 

A defendant violates the Hobbs Act if he:

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

2
or threatens physical violence to any person or property in furtherance of a plan or

purpose to do anything in violation of this section.

18 U.S.C. § 1951(a). “Robbery,” in turn, is defined 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. § 1951(b)(1).

As already stated, the Defendant’s Motion invokes the Supreme Court’s decision in

Johnson, which held that the residual clause of the definition of a “violent felony” in the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), is unconstitutionally vague. 135 S. Ct.

at 2557 (invalidating the phrase “or otherwise involves conduct that presents a serious potential

risk of physical injury to another”). The Defendant was not sentenced under the ACCA, but he

claims that Hobbs Act robbery no longer qualifies as a crime of violence under § 924(c)(3) based

on Johnson’s reasoning. 

First, he argues that the holding in Johnson necessarily rendered the residual clause of

§ 924(c)(3)(B) unconstitutionally vague. That argument has merit. See United States v. Cardena,

842 F.3d 959, 996 (7th Cir. 2016) (holding that the residual clause in 18 U.S.C. § 924(c)(3)(B) is

unconstitutionally vague). However, it is not necessary to rely on the residual clause in this case

because Hobbs Act robbery under § 1951(a) is a crime of violence under § 924(c)’s elements

clause. In United States v. Anglin, — F.3d —, 2017 WL 359666 (7th Cir. Jan. 25, 2017), the

Seventh Circuit joined an “unbroken consensus of other circuits” when it ruled that “Hobbs Act

robbery is a ‘crime of violence’ within the meaning of § 923(c)(3)(A).” 2017 WL 359666, at *7.

The court noted that the relevant definition of Hobbs Act robbery, the Defendant’s predicate

3
offense, is the “taking of personal property ‘by means of actual or threatened force, or violence,

or fear of injury, immediate or future, to his person or property.’” 2017 WL 359666, at *7

(quoting 18 U.S.C. § 1951(b)). The court found that “[c]ommitting such an act necessarily

requires using or threatening force.” Id.

Because Hobbs Act robbery is crime of violence, the Court finds no basis to vacate the

Defendant’s firearm conviction under 18 U.S.C. § 924(c).

CONCLUSION

For the reasons stated above, the Court DENIES the Defendant’s Motion Under 28

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By Person in Federal Custody [ECF No.

184]. Because reasonable jurists would not debate that the Motion fails to present a valid claim

of the denial of a constitutional right, or that the Motion should have been resolved in a different

manner, the Court DECLINES to issue a certificate of appealability pursuant to 28 U.S.C. §

2253(c)(3).

SO ORDERED on February 1, 2017.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

4