J. DANIEL BREEN, District Judge.
This case began with a nine-count indictment against Defendants Cordarious Baltimore and Lacey Jeter for violations of 18 U.S.C. §§ 922(g) and 924(c), as well as for Hobbs Act robbery in violation of 18 U.S.C. § 1951, arising from a series of heists that occurred in April 2016 in western Tennessee. (Docket Entry ("D.E.") 2.) On January 22, 2019, Johnny Lee Nixon, Jr. was added as a defendant pursuant to a superseding indictment. (D.E. 47.) On August 22, 2019, following a jury trial, Nixon was convicted on, among other things, Counts One, Six, and Seven of a second superseding indictment filed July 15, 2019. (Docket Entry ("D.E.") 157; see also D.E. 127.) Before the Court is Nixon's amended motion to dismiss Count Seven nunc pro tunc to January 22, 2019 (D.E. 189), to which the Government has responded (D.E. 182).
Counts One, Six, and Seven upon which Defendant was convicted are at issue here and, therefore, will be set forth below in their entirety:
(D.E. 127 at PageID 284-85, 287-88.)
Section 924(c) authorizes heightened criminal penalties for "any person who, during and in relation to any crime of violence . . ., uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm[.]" 18 U.S.C. § 924(c)(1)(A). The statute defines a "crime of violence" as "an offense that is a felony" that
18 U.S.C. § 924(c)(3). Subsection (A) is known as the "elements clause" and subsection (B) the "residual clause." United States v. Davis, 139 S.Ct. 2319, 2324 (2019). In Davis, the United States Supreme Court held that the residual clause was unconstitutionally vague. Id. at 2336. It is this decision upon which Nixon bases his request for relief.
Davis, however, had no effect on the elements clause. United States v. Richardson, 948 F.3d 733, 741 (6th Cir. 2020) ("Davis leaves intact a separate definition of crime of violence supplied by the statutes `elements clause.'"). In Richardson, the Sixth Circuit specifically held that aiding and abetting Hobbs Act robbery satisfies the elements clause. Id. at 742. Thus, it does not appear to the Court at the outset that Davis is of any benefit to the Defendant.
Nixon posits, however, that there is no way to clearly discern from the verdict which count of the indictment the jury relied upon to support Count Seven's § 924(c) enhancement—Count One's conspiracy charge or Count Six's substantive charge. Without this knowledge, the argument goes, the risk of convicting Defendant for a § 924(c) enhancement based on an unconstitutional foundation flies in the face of the Due Process Clause.
It is clear that, unlike the substantive offense, conspiracy to commit Hobbs Act robbery qualifies as a crime of violence only under the now-invalidated residual clause. See United States v. Ledbetter, 929 F.3d 338, 361 (6th Cir.), cert. denied, 2019 WL 5875219 (U.S. Nov. 12, 2019) (No. 19-6107). Therefore, Count One cannot set forth a qualifying predicate offense to support the Count Seven § 924(c) conviction. But it is also clear, despite Nixon's attempt to muddy the water, that the qualifying predicate offense lies in Count Six. Indeed, based upon the language of the second superseding indictment expressly tying the § 924 enhancement to the substantive Hobbs Act robbery of the Bells store, the only reasonable basis for a guilty verdict on Count Seven is the substantive count set forth in Count Six. The Court rejects, then, Defendant's assertion that Davis mandates dismissal of Count Seven. The motion is DENIED.
IT IS SO ORDERED.