United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Michelle H. Bums, United States Magistrate Judge.
TO THE
HONORABLE JAMES A. TEILBORG, UNITED STATES DISTRICT JUDGE:
On June
24, 2016, Movant filed a Motion to Vacate, Set Aside or
Correct Sentence (“2255 motion”), asserting that
his conviction for armed bank robbery no longer qualifies as
a crime of violence pursuant to 18 U.S.C. § 924(c)(3)(B)
and U.S.S.G. § 4B1.2(a)(2), based upon the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015). (CVDoc[1]. 1.) The case was ultimately
stayed pending the Supreme Court's decision in Dimaya
v. Lynch, 803 F.3d 1110 (9th Cir. 2015), and Beckles
v. United States, 616 Fed App'x. 415 (11th Cir.
2015). (CVDoc. 16.) On April 10, 2018, Respondent filed a
Motion to Vacate Stay and Dismiss Movant's 2255 motion.
(CVDoc. 19.) Movant has filed a Response in Opposition, (Doc.
20), and Respondent has filed a Reply. (CVDoc. 21.)
BACKGROUND
In
Movant's underlying criminal matter, Movant pleaded
guilty to two counts of bank robbery, in violation of 18
U.S.C. § 2113(a), two counts of armed bank robbery in
violation of 18 U.S.C. § 2113 (a) and (d), and one count
of use of a firearm during and in relation to a crime of
violence - armed bank robbery, in violation of 18 U.S.C.
§ 924(c). (CRDocs. 43, 52.) Movant was subsequently
sentenced as a career offender, the Court concluding that
Movant's armed bank robbery conviction, his prior federal
bank robbery and two state armed bank robbery convictions
qualified as crimes of violence pursuant to U.S.S.G. §
4B1.2. Movant was sentenced to a total of 384 months'
imprisonment. (CRDocs. 51, 54.)
Movant's
2255 claims are as follows:[2] (1) the crime of armed bank
robbery does not qualify as a crime of violence under the
force clause of § 924(c)(3)(B), but qualifies under the
residual clause, which is unconstitutionally void for
vagueness under Johnson, and (2) the crime of armed
robbery does not qualify as a crime of violence under the
“force” or “enumerated offense
clause” of § 4B1.2, but qualifies under the
residual clause which is unconstitutionally void for
vagueness under Johnson, and (3) because
Movant's prior convictions for bank robbery and armed
bank robbery (state conviction) are no longer crimes of
violence, his enhanced sentence as a career offender is no
longer valid. (CVDoc. 1.) Respondent asserts that a stay of
the proceedings to await the Supreme Court's decision in
Dimaya and Beckles is no longer necessary,
as the cases have been decided, and do not form a basis for
relief; and, that Movant's 2255 motion should be
dismissed as there is now binding Ninth Circuit precedent
that is also fatal to Movant's claims. (CVDoc. 19.)
On
March 6, 2017, the Supreme Court decided Beckles v.
United States, 137 S.Ct. 886 (2017), holding that the
advisory Sentencing Guidelines are not subject to a
void-for-vagueness challenge under the Due Process Clause,
and that § 4B1.2(a)'s residual clause is therefore
constitutional. 137 S.Ct. at 892. In Movant's response,
he does not dispute that the Beckles decision
renders his claim for relief pursuant to § 4B1.2
meritless, and this Court will therefore recommend that
Movant's claim two be denied and dismissed with
prejudice.
As to
Movant's other claims, Respondent asserts that the Ninth
Circuit has recently reaffirmed prior precedent holding that
bank robbery by intimidation “requires at least an
implicit threat to use the type of violent physical force
necessary to meet the Johnson standard.”
See, United States v. Gutierrez, 876 F.3d
1254, 1257 (9th Cir. 2017) (reaffirming United States v.
Selfa, 918 F.2d 749 (9th Cir. 1990)). Soon thereafter,
the Ninth Circuit held that armed bank robbery is a crime of
violence under 18 U.S.C. § 924(c). United States v.
Watson, 881 F.3d 782, 786 (9th Cir. 2018)
(“Because bank robbery ‘by force and violence, or
by intimidation' is a crime of violence, so too is armed
bank robbery.”). Respondent also asserts that, for the
same reason that bank robbery and armed bank robbery are
crimes of violence under Ninth Circuit precedent,
Movant's enhanced sentence as a career offender is valid
and should be affirmed.
Movant
concedes that the cases relied upon by Respondent are
presently precedential, but asserts that they “may be
reviewed by the Supreme Court, ” and that in
Watson, a petition for writ of certiorari
“will be filed.” (CVDoc. 20 at 2.) He also
concedes that “the Court may not stay a case solely to
wait for the Supreme Court to overturn binding circuit
precedent, ” citing Yong v. INS, 208 F.3d
1116, 1119-21 & n.2 (9th Cir. 2000).
The
Court granted a stay of this matter pending Supreme Court
decisions in Beckles and Dimaya. Both cases
have been decided and neither decision supports Movant's
claims. Thus, the stay should be lifted. As Movant does not
dispute that binding Supreme Court and Ninth Circuit
precedent foreclose his claims, this Court will recommend
that Movant's 2255 motion be denied and dismissed with
prejudice.
In the
alternative, Movant requests that the Court grant a
certificate of appealability for the reasons set forth in
United States v. Dawson, 300 F.Supp.3d 1207 (D. Or.
2018). In Dawson, the District Court found a tension
between the Ninth Circuit holding in Watson that
“‘a defendant may not be convicted [of bank
robbery] if he only negligently intimidated the victim,'
[] and previous Ninth Circuit opinions on the mens rea
requirement for a bank robbery conviction.” 300
F.Supp.3d at 1210 (internal citations omitted). Specifically,
the District Court cited United States v. Foppe, and
its holding that “intimidation should be guided by an
objective test focusing on the accused's actions, ”
993 F.2d 1444, 1451 (9th Cir. 1993), and an Eighth Circuit
case citing Foppe for the same conclusion,
United States v. Yockel, 320 F.3d 818, 824 (8th Cir.
2003). Following the Court's line of reasoning, conduct
under an objective test - focusing on an accused's
actions - “could be satisfied by only a negligent
threat.” Dawson, 300 F.Supp.3d at 1211. The
Court further noted that in the Ninth Circuit, as in other
Circuits, “a simple demand for money is sufficient to
establish intimidation.” Id. Both the
Foppe and Yockel decisions, however, were
decided long before Johnson, Watson, and
Gutierrez, and do not address directly the question
presented in this case, that is, whether or not the crime of
bank robbery constitutes a crime of violence under the
“force” clause of § 924(c).
In
Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme
Court of the United States held that, in the certificate of
appealability context, “[w]here a district court has
rejected the constitutional claims [in the petition] on the
merits, ” . . . “[t]he petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong.” 529 U.S. 484.
Due to
the binding Ninth Circuit precedent on Movant's claims
one and three, and binding Supreme Court precedent on
Movant's claim two, this Court finds that reasonable
jurists would not find the Court's assessment of the
constitutional claims debatable or wrong. This Court will
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